Duchesneau v. SHINSEKI
2012 U.S. App. LEXIS 9984
| Fed. Cir. | 2012Background
- Duchesneau served active duty from July 1996 to January 1999 and has a service-connected right shoulder bursitis rated at 10% under DC 5203 since 2000.
- In 2003 she sought an increased rating; the RO denied it, and the Board upheld the denial in 2009.
- The Board considered potential ratings under other DCs (including DC 5201) but ultimately rejected reassessing limitation of motion.
- Duchesneau appealed to the Veterans Court, arguing (i) error in not granting an increased rating for limitation of motion under DC 5201 and (ii) entitlement to two separate 20% ratings under DC 5201 for two planes of motion.
- The Veterans Court held that within a single diagnostic code one cannot receive more than one rating unless the regulation expressly provides otherwise, and then remanded to clarify the extent of limitation of motion.
- This appeal to the Federal Circuit was dismissed for lack of jurisdiction because the Veterans Court decision on remand was not a final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court's interpretation of DC 5201 is a final issue | Duchesneau argues the legal interpretation is final and appealable | Shinseki contends the remand order is non-final | Appeal dismissed for lack of jurisdiction; no final order |
| Whether a claimant can receive two ratings under DC 5201 for two planes of motion within a single disability | Duchesneau seeks two separate 20% ratings for abduction and flexion | Veterans Court held only one rating per diagnostic code unless expressly provided | Not allowed under the relevant VA regulation; governed byVeterans Court interpretation |
Key Cases Cited
- Williams v. Principi, 275 F.3d 1361 (Fed. Cir. 2002) (finality rule for Veterans Court remand orders with narrow exceptions)
- Myore v. Principi, 323 F.3d 1347 (Fed. Cir. 2003) (third Williams factor and remand authority may render issue unreviewable)
- Donnellan v. Shinseki, 676 F.3d 1089 (Fed. Cir. 2012) (remand reviewability and the right not to be subjected to remand)
- Winn v. Brown, 110 F.3d 56 (Fed. Cir. 1997) (remand reviewability and finality considerations)
- Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006) (review of Veterans Court judgments on appeal)
- Adams, 256 F.3d 1318 (Fed. Cir. 2001) (finality and remand review standards)
- Stevens v. Principi, 289 F.3d 814 (Fed. Cir. 2002) (third Williams factor and remand review)