Case Information
*2 Before N EWMAN , B RYSON , and M OORE , Circuit Judges . M OORE , Circuit Judge .
Ms. Lаdy Louise Byron appeals from a decision by the Court of Appeals for Veterans Claims (Veterans Court) remanding the case for further proceedings before the Board of Veterans’ Appeals (Board). Byron v. Shinseki No. 09-4634, slip op., 2011 WL 2441683 (Ct. Vet. App. June 20, 2011). Because the Veterans Court properly rеmanded to the Board to make factual determinations in the first instance, we affirm .
B ACKGROUND
This case arises from the Board’s decision denying an earlier effective date of service connection for the cause of the death of Ms. Byron’s husband, a veteran. Ms. Byron alleged that her husband develoрed cancer due to expo- sure to radiation while he was serving on active duty. Based on regulations that presume causation for certain diseases, the Board awarded service connection with an effective date of May 1, 1988. The Board did not deter- mine whether Ms. Byron established a direct service connection that was not based on the presumptions. On appeal to the Veterans Court, the parties agreed that the Board should have made such a determination because it may entitle Ms. Byron to an earlier effective date. Ms. *3 Byron sought for the Vetеrans Court to reverse the Board’s decision rather than vacate and remand it. Because the Board did not consider the evidence or mаke factual findings concerning direct service connection, the Veterans Court remanded the case to the Board to make such findings in the first instance. Byron , slip. op. at 8-9. Ms. Byron now appeals the decision to remand.
D ISCUSSION
Remand orders of the Veterans Court are normally not reviewable, Adams v. Principi , 256 F.3d 1318, 1320 (Fеd. Cir. 2001), but we have recognized exceptions to that rule. In Adams , a case very similar to this one, we held that a remand order was appealable because the issue pressed by the appellant was that he had a legal right not to be required to undergo a remand. In light of that decision and our subsequent decision in Williams v. Principi , 275 F.3d 1361, 1364 (Fed. Cir. 2002), in which we set forth a three-part test to identify the class of cases in which remand orders are directly appealаble, we hold that it is appropriate to review the remand order in this case. This case satisfies that three-part test because the Veterans Court’s decision was a clear and final decision of the legal issue presented by Ms. Byron; the resolution of that issue against Ms. Byron will be adverse to her by forcing her to submit to a remand; and the remand will effectively moot Ms. Byron’s claim that she has a legal right to a decision of her claim without the need for a remand. Following Adams and Williams , we have deline- ated the circumstances where review of a remand order is proper. See, e.g. , Joyce v. Nicholson , 443 F.3d 845, 850 (Fed. Cir. 2006) (holding that we may not review a re- mand order when the appellant is challenging the cor- rectness of the analysis in the remand order); Myore v. Principi , 323 F.3d 1347, 1351-52 (Fed. Cir. 2003) (same); Stevens v. Principi , 289 F.3d 814, 817 (Fed. Cir. 2002) *4 (holding that we may review a rеmand order to determine the Veterans Court’s authority to order a remand). This case involves the same type of issue present in Adams and Stevens , whether the Veterans Court has the authority to reverse the Board rather than remand the case. Unlike the issues in Joyce and Myore , the issue of whether the Veterans Court has authority to rеverse would become moot once the case is remanded. Thus, this is one of the rare circumstances where review of a remand order is proper.
The scope of our review of a Veterans Court decision
is limited by statute. 38 U.S.C. § 7292 (2006). Absent
a constitutional issue, we may not review challenges to
factual determinations or challenges to the application of
a law or regulation to facts. 38 U.S.C. § 7292(d)(2). We
review questions of law, inсluding the interpretation of
statutes and regulations,
de novo
.
DeLaRosa v. Peake
The parties agree that the Board erred by not analyz- ing whether Ms. Byron established a direct service con- nection. The parties disagree, however, whether the Veterans Court must remand, or whether it may assess the facts in the first instance. We resolved this issue in Hensley v. West , where we held that when the Board misinterprets the law and fails to make the relevant initial factual findings, “the proper course for thе Court of Appeals for Veterans Claims [is] to remand the case to the [Board] for further development and application of the correct law.” 212 F.3d 1255, 1264 (Fed. Cir. 2000). We explained that the statutory provisions governing the Veterans Court “are consistent with the general rule that appellatе tribunals are not appropriate fora for initial fact finding.” Id. at 1263; see also 38 U.S.C. § 7261(c) (2006) (“In no event shall findings of fact made by the Secretary *5 or the Board of Veterаns’ Appeals be subject to trial de novo by the [Veterans Court].”).
To the extent that Ms. Byron argues that Gonzales v. Thomas , 547 U.S. 183 (2006) (per curiam) and INS v. Ventura , 537 U.S. 12 (2002) (per curiam) provide other- wise, we disagree. The Supreme Court held that when an agency has not made an initial determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Thomas , 547 U.S. at 186 (quoting Ventura , 537 U.S. at 16). In Ventura , the Supreme Court explained:
Generally speaking, a court of appeals should re- mand a case to an agency for decision of a matter that statutes place primarily in agency hands. . . . The agency can bring its expertise to bear upon the matter; it сan evaluate the evidence; it can make an initial determination; and, in doing so, it can, through informed discussion and analysis, help a court later determine whether its decision exceeds the leeway that the law provides.
In this case, the government аrgues that at least two
unresolved factual issues must be addressed before Ms.
Byron may be awarded an earlier effective date based on
а direct service connection. In particular, Ms. Byron must
first show that her husband was exposed to radiation
during service.
See
38 C.F.R. § 3.303. Ms. Byron must
also show that her husband’s death was caused by such
exposure.
See id
. It is not enough for Ms. Byron to claim
that all of the evidence of record supports her position.
The Board must still make an initial determination of
whether Ms. Byron has sufficiently supported a claim for
an earlier effective date.
Thomas
,
For the foregoing reasons, we affirm the Veterans Court’s decision remanding the case to the Board.
AFFIRMED