Donnellan v. Shinseki
2012 U.S. App. LEXIS 7846
| Fed. Cir. | 2012Background
- Donnellan served in the Army National Guard from 1969 to 2000, with a colectomy and subsequent residuals.
- During an active duty for training period (May 30–June 5, 1998), he developed a small bowel fistula requiring emergency surgery.
- Donnellan sought VA disability benefits for perforated small intestine and complications; the Board sought opinions on aggravation during ADT.
- An independent medical opinion concluded Donnellan’s ADT did not cause permanent increase in residuals, though he may have returned to duty too early.
- The Board applied 38 U.S.C. § 1153 aggravation presumption to ADT but found clear and unmistakable evidence of no increase beyond natural progression.
- Veterans Court remanded for further medical opinion addressing remand instruction; Donnellan appealed the Veterans Court decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 1153 aggravation presumption applies to National Guard members on ADT for purposes of veteran status. | Donnellan contends the presumption applies to his ADT period. | Shinseki argues the presumption does not apply absent true veteran status. | Presumption does not apply; must show veteran status and aggravation beyond natural progression. |
| Whether the Veterans Court remand order is reviewable and fits the exception to the rule against reviewing non-final remand orders. | Remand violates right to immediate decision; merits should be reached now. | Non-final remand orders are generally not reviewable; exception not satisfied here. | Remand order is non-final and not within the exception; appeal dismissed. |
Key Cases Cited
- Adams v. Principi, 256 F.3d 1318 (Fed. Cir. 2001) (review of non-final remand orders requires an exceptional interest)
- Williams v. Principi, 275 F.3d 1361 (Fed. Cir. 2002) (criteria for entertaining appeal from Veterans Court remand)
- Myore v. Principi, 323 F.3d 1347 (Fed. Cir. 2003) (remand issue must be independently reviewable to escape finality rule)
- Winn v. Brown, 110 F.3d 56 (Fed. Cir. 1997) (remand may not be reviewable if it would moot the issue)
- Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006) (remand rights must be protected when barred by statute)
- Byron v. Shinseki, 670 F.3d 1202 (Fed. Cir. 2012) (clarifies standards for exceptions to non-final review)
- Stevens v. Principi, 289 F.3d 814 (Fed. Cir. 2002) (remand decisions may be reviewed when remand for prohibited purpose)