Cooper: Appealing a Board Remand?

Cooper v. McDonough, Case Number 23-5963, decided September 18, 2024 is an opinion by the Court affirming prior case law stating a Board remand cannot be appealed to the Court.

The veteran’s claims were first remanded by the Court and then the Board so that the agency of original jurisdiction could obtain an addendum opinion from a medical provider. 

While case law made clear that typically remands could not be appealed, the veteran argued that the passage of the AMA dramatically changed the legal landscape and allowed for remands to be appealed. He essentially argued because under the AMA system RO decisions that were the result of a Board remand are not automatically returned to the Board, the Board decision itself represents a final decision, which confers jurisdiction onto the Court.

The Court determined that “[h]owever extensive the changes to VA's claims processing regime effectuated by the AMA may be, none directly implicates the factors governing how this Court assesses its jurisdiction, namely: (1) whether a ruling constitutes a decision per section 7252; (2) whether it is "final" per section 7266; and (3) whether it is adverse. Hence, although Mr. Cooper contends that we need to reframe our inquiry to assess finality solely through the veteran's right to "one review on appeal to the Secretary" under section 7104, it's not clear how even the most sweeping changes to VA's claims processing regime could transform the nature of an administrative remand order in such manner as to render it capable of satisfying those three requirements.”  Id. at *7.

The Court acknowledged a concern about excessive or unnecessary Board remands and stated “if a claimant believes that VA is unlawfully avoiding or unreasonably delaying issuing a final decision on a claim, the appropriate avenue for relief is to file a petition for extraordinary relief under the All Writs Act.”  Id. at *8.

This was a novel try to use the AMA to argue a larger change.  It appears the case will be appealed to the Federal Circuit.

Decision by Judge Toth and joined by Greenberg and Laurer.

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