Donnellan v. Shinseki, No. 2011-7127(Decided: April 18, 2012), Review of Remands by Veterans Court, Williams, 275 F.3d at 1364

Excerpt from decision below: "Mr. Donnellan argues (1) that the Veterans Court’s ruling on the statutory presumption issue is a clear and final decision on the merits of his claim that will DONNELLAN v. DVA 6 govern the remand proceedings, (2) that it adversely affects him because it increases the evidentiary burden on him before the Board, and (3) that it may not survive remand. See Williams, 275 F.3d at 1364." ================= "Because this is not a case in which the veteran’s claim is that he has a legal right not to be forced to undergo a remand, we hold that the remand order in this case falls within the category of nonfinal orders that we decline to review. ====================== United States Court of Appeals for the Federal Circuit __________________________ KEVIN T. DONNELLAN, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7127 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in Case No. 07-2041, Chief Judge Bruce E. Kasold. ___________________________ Decided: April 18, 2012 ___________________________ KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. DOMENIQUE G. KIRCHNER, Trial Attorney, Commercial Litigation Branch, Civil Division, United State Department of Justice, of Washington, DC, argued for respondent- appellee. With her on the brief were TONY WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY, JR., Assistant Director. Of DONNELLAN v. DVA 2 counsel on the brief were MICHAEL J. TIMINSKI, Deputy Assistant General Counsel, and JONATHAN TAYLOR, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before RADER, Chief Judge, BRYSON and LINN, Circuit Judges. BRYSON, Circuit Judge. Kevin T. Donnellan appeals the decision of the Court of Appeals for Veterans Claims (“the Veterans Court”), which remanded his case to the Board of Veterans’ Appeals. Because the remand order of the Veterans Court does not fall into the narrow exception to our rule against review of remand orders, we dismiss the appeal. I Mr. Donnellan served in the Army National Guard from October 1969 through February 2000. In 1996, he underwent surgery to remove a portion of his sigmoid colon as part of his treatment for colon cancer. In March 1998, after a diagnosis of acquired polyposis, he had a total colectomy. As part of his Army National Guard duty, Mr. Donnellan participated in “active duty for training” from May 30, 1998, through June 5, 1998. On June 3, 1998, while he was on active duty for training, Mr. Donnellan developed a fever, chills, and severe abdominal pain. He was taken to a local hospital where he underwent emergency surgery to remove a portion of his small intestine because of a small bowel perforation. On the fourth day after the surgery, Mr. Donnellan’s doctors became aware of a small bowel fistula, which they treated. DONNELLAN v. DVA 3 Mr. Donnellan subsequently applied to the Department of Veterans Affairs (“DVA”) for disability benefits for a perforated small intestine and ensuing complications. In the course of proceedings on his claim, the Board of Veterans’ Appeals directed the regional office to obtain medical opinions on certain issues, including whether his condition following his colectomy “underwent a permanent increase in severity beyond its natural progression” during his period of active duty for training. The regional office denied service connection for Mr. Donnellan’s disability, relying on an examination report from a DVA physician who characterized Mr. Donnellan’s fistula as a “complication of his multiple surgical procedures.” On appeal, the Board found that the DVA physician’s report did not provide “adequate responses to the questions posed by the Board.” The Board therefore requested an independent medical opinion from another physician, Dr. Debra Ford, as to whether Mr. Donnellan’s “status post colectomy residuals under[went] a permanent increase in severity beyond its natural progression” during his active duty for training. Dr. Ford characterized the Board’s question as “somewhat confusing,” but stated that Mr. Donnellan’s active duty for training did not cause “the return of [his] fistulous disease.” She added, however, that in her opinion “he probably returned to duty too early.” In a March 2007 decision, the Board of Veterans’ Appeals denied Mr. Donnellan’s request for benefits. The Board began by applying the presumption embodied in 38 U.S.C. § 1153 that a disability is aggravated, for purposes of establishing service connection, if there is an increase in the level of the disability during a veteran’s service. That presumption, the Board held, applied to Mr. Donnellan’s period of active duty for training. The Board noted, DONNELLAN v. DVA 4 however, that the statutory presumption can be rebutted by clear and unmistakable evidence that the increase in disability was due to the natural progression of the disease. 38 C.F.R. § 3.306(b). After reviewing the record, the Board determined that there was clear and unmistakable evidence that Mr. Donnellan’s disease and the ensuing complications did not increase in severity beyond their natural progression during his period of active duty for training. Mr. Donnellan appealed the Board’s decision to the Veterans Court. He argued (1) that the Board improperly found that the presumption of aggravation was rebutted by the evidence of record, and (2) that the Board failed to ensure compliance with its remand instructions, because Dr. Ford had not answered the question posed to her. As to the first issue, the Veterans Court held that the statutory presumption of aggravation does not apply to an increase in the degree of a disability suffered by a member of the National Guard while on active duty for training. The court explained that because Mr. Donnellan had never served on active duty in the military, but was only on active duty for training, he had to establish his status as a veteran in order to be entitled to disability benefits. By statute, a “veteran” is a person who has served in “active military, naval, or air service.” 38 U.S.C. § 101(2). “Active duty for training” is considered “active military, naval, or air service,” but only if the person “was disabled or died from a disease or injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(24)(B). The court held that to establish his status Mr. Donnellan needed to show both that his disability increased during active duty for training and that the increase was beyond the natural progression of the disease. In making that showing, according to DONNELLAN v. DVA 5 the court, Mr. Donnellan was not entitled to the statutory presumption of aggravation. As to the second issue, the court agreed with Mr. Donnellan that Dr. Ford’s medical opinion did not satisfy the Board’s instructions on remand. The court therefore remanded the case to the Board to obtain a medical opinion addressing the Board’s prior remand order. II On appeal, Mr. Donnellan argues that the Veterans Court erred in holding that he was not entitled to the statutory presumption of aggravation in attempting to show that he qualified as a “veteran.” The government defends the Veterans Court’s decision, but first argues that this court should dismiss the appeal because the Veterans Court’s decision is not final. Generally, we decline to review non-final orders of the Veterans Court, including remand orders. See Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001). Mr. Donnellan acknowledges that the Veterans Court’s remand order is not a final decision. He contends that we should reach the merits of his appeal, however, as this case falls within an exception to the rule that we review only final decisions of the Veterans Court. See Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002) (setting out the circumstances in which this court will entertain appeals from non-final orders of the Veterans Court). Tracking the criteria we have used to determine whether to entertain appeals from remand orders of the Veterans Court, Mr. Donnellan argues (1) that the Veterans Court’s ruling on the statutory presumption issue is a clear and final decision on the merits of his claim that will DONNELLAN v. DVA 6 govern the remand proceedings, (2) that it adversely affects him because it increases the evidentiary burden on him before the Board, and (3) that it may not survive remand. See Williams, 275 F.3d at 1364. As to the last of those points, he contends that he may be able to meet the burden imposed by the Veterans Court and prevail on his claim; if he does, the legal issue he seeks to present to this court will not reach this court in his case. We reject Mr. Donnellan’s reasoning and hold that the Veterans Court’s decision falls within the class of remand orders that we decline to review because they are not final. In this case, as in many others, the question whether we will review the remand order from the Veterans Court comes down to the third factor set forth in Williams—whether there is “a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.” Williams, 275 F.3d at 1364. Several of our cases have fleshed out the meaning of that factor, and in so doing they have made clear that we will not review a remand order such as the one in this case. In particular, our cases establish that it is not enough that the Veterans Court “as part of a remand decision may have made an error of law that will govern the remand proceeding—even one that, if reversed, would lead to a decision in favor of the claimant.” Myore v. Principi, 323 F.3d 1347, 1352 (Fed. Cir. 2003). Rather, the legal issue in question must be one that would be effectively unreviewable at a later stage in the litigation. Id. The risk that a decided issue will not survive a remand does not include the possibility that the appellant will prevail on remand and therefore will not need to take another appeal. See id. at 1351-52 (test for whether issue may evade review is whether, if the claimant loses on DONNELLAN v. DVA 7 remand, the claimant will not be able to raise the issue on appeal from an adverse final judgment); Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997). Rather, the remand action itself must “independently violate the rights of the veteran, for example, where a remand would be barred by statute.” Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006). That is, the appellant’s claim must be that he has a legal right not to be subjected to a remand. In such a case, the appellant’s argument that he has a right not to be forced to undergo a remand would necessarily and forever be lost if the case is remanded without an opportunity for appellate review of his claim. Our cases have applied that principle in a variety of settings. For example, in Adams we reviewed a remand order because the veteran claimed that he had a right to judgment without a remand, and “the order of the Veterans Court requiring him to undergo a remand before obtaining appellate relief would defeat the very right he asserts, i.e., his right to an immediate judgment without the necessity of a remand.” 256 F.3d at 1321. Likewise, in Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002), this court entertained an appeal from a remand order because the claimant argued that the remand was “ordered for a prohibited purpose” and that he was “entitled to a decision in his favor without the need for a remand.” In that case, we held that the appeal fell within the exception to the rule against entertaining non-final orders because the appellant’s claim was that the remand order adversely affected him “by violating his right to an immediate decision on his claim,” id., a right that, if he was correct in his assertion, would be lost by the very act of remanding. DONNELLAN v. DVA 8 In Byron v. Shinseki, 670 F.3d 1202 (Fed. Cir. 2012), we reiterated the requirements for finding that a case falls within the exception to the rule regarding non-final appeals. The Veterans Court in that case made a legal determination that it did not have the authority to consider evidence and make factual findings in the first instance when the Board had failed to do so. The court therefore remanded the case to the Board to make such findings. We addressed the issue of the Veterans Court’s authority because, if we had not, the veteran’s claim that the Veterans Court has the legal authority to make factual findings in the first instance would never have been subject to review, regardless of whether the veteran had won or lost in the remand proceedings before the Board. In this case, Mr. Donnellan’s argument is not that he has a legal right not to undergo a remand, but rather that the remand proceedings should be conducted under a different legal standard than that ordered by the Veterans Court. As such, this is a classic case of a non-final order: Even if we were to address the merits and uphold Mr. Donnellan’s legal claim, the case would still have to be remanded for further proceedings under that standard. For that reason, this case does not fit into the exception to our rule against entertaining appeals from non-final orders of the Veterans Court. Instead, it is a case like many others in which remand proceedings have been ordered under standards that the appellant does not agree with. Were we to accept Mr. Donnellan’s framing of the exception to the rule against review of remand orders, the exception would swallow the rule. Because our review of decisions of the Veterans Court is typically limited to legal issues, 38 U.S.C. § 7292(d)(2), remand orders that we are asked to review are generally those in which the DONNELLAN v. DVA 9 Veterans Court has decided a legal issue that will govern the remand proceedings. And in virtually any case that is remanded, it is possible that the veteran will win even under the legal standard adopted by the Veterans Court. (Otherwise, why the remand?) Because this is not a case in which the veteran’s claim is that he has a legal right not to be forced to undergo a remand, we hold that the remand order in this case falls within the category of nonfinal orders that we decline to review. No costs. DISMISSED

Federal Circuit, Ebel v. Shinseki, No. 2011-7125 (Decided: March 21, 2012) ; Non-Final Remands Three Williams Conditions, Williams, 275 F.3d at 1364

Excerpt from decision below: "Thus, we generally do not review the Veterans Court’s remand orders because they are not final decisions. Joyce, 443 F.3d at 849 (“We have repeatedly made clear EBEL v. DVA 6 that a decision by the [Veterans Court] remanding to the Board is non-final and not reviewable.”); Jones v. Nicholson, 431 F.3d 1353, 1357 (Fed. Cir. 2005); Williams, 275 F.3d at 1363; Adams v. Principi, 256 F.3d 1318, 1321 (Fed. Cir. 2001). We will depart from this strict rule of finality only when three conditions (the Williams conditions) are met: (1) [T]here must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue. Williams, 275 F.3d at 1364 (footnotes omitted); see Mlechick v. Mansfield, 503 F.3d 1340, 1343 (Fed. Cir. 2007); Joyce, 443 F.3d at 849; Jones, 431 F.3d at 1358. ====================================== "Nevertheless, Mrs. Ebel argues that case law requires us to find that her challenge to the Veterans Court’s decision to remand satisfies the first Williams condition. While we have previously found that a decision to remand could constitute a clear and final legal decision satisfying the first Williams condition, this case is distinguishable. Unlike other cases, such as Byron v. Shinseki, where the Veterans Court explicitly analyzed its statutory authority and held that it did not have the authority to reverse and must remand, the court here made no such legal determination and Mrs. Ebel does not allege that any statute was violated. No. 2011-7170, slip op. (Fed. Cir. Feb. 17, 2012)(finding the first condition met where the Veterans Court decision analyzed case law to determine that reversal was precluded and remand was required); see Joyce, 443 F.3d at 849 (“We have repeatedly made clear that a decision by the [Veterans Court] remanding to the Board is non-final and not reviewable. . . . [unless] the remand action itself EBEL v. DVA 9 would independently violate the rights of the veteran, for example, where a remand would be barred by statute.”). Rather, the Veterans Court evaluated the Board’s factual determinations and remanded because the “Board did not adequately consider the evidence of record” such that the Board’s “statements of reasons and bases [were] inadequate to facilitate review.” Ebel, 2011 WL 378851, at *3-4. The basis of this remand is most similar to that of Williams, where we held that the first condition was not met because “the [Veterans Court] has merely remanded for further consideration of the issues by the Board as a predicate to further review of those issues by the [Veterans Court].” 275 F.3d at 1365." ========================= United States Court of Appeals for the Federal Circuit __________________________ GINETTE J. EBEL, Claimant-Appellant, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee. __________________________ 2011-7125 __________________________ Appeal from the United States Court of Appeals for Veterans Claims in case no. 08-4130, Judge Frank Q. Nebeker. __________________________ Decided: March 21, 2012 __________________________ PHILIP ANDREW RILEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, of Washington, DC, argued for claimant-appellant. With him on the brief were DORIS JOHNSON HINES and RONALD L. SMITH. MARTIN F. HOCKEY, JR. Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were TONY EBEL v. DVA 2 WEST, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and LAUREN A. WEEMAN, Trial Attorney. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and RACHAEL T. SHENKMAN, Attorney, United States Department of Veterans Affairs, of Washington, DC. __________________________ Before PROST, SCHALL, and REYNA, Circuit Judges. PROST, Circuit Judge. Ginette J. Ebel appeals a decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) to vacate and remand the decision of the Board of Veterans’ Appeals (“Board”) denying Mrs. Ebel’s claim for service connection on behalf of her deceased husband. Ebel v. Shinseki, No. 08-4130, 2011 WL 378851 (Vet. App. Feb. 7, 2011). Because the decision of the Veterans Court was not a final decision, we dismiss the appeal for lack of jurisdiction. BACKGROUND Lowell A. Ebel (“the veteran”) served in the U.S. Army and then the U.S. Navy in the 1960s. Specifically, from February 1966 to February 1967 and from November 1968 to November 1969, Mr. Ebel served in Vietnam. The veteran was honorably discharged and subsequently received service connection compensation for arthritis and hearing loss. In November 1993, Mr. Ebel had a malignant melanoma surgically removed from his umbilicus. The malignant melanoma continued to spread and in October 1994, he died from respiratory arrest ultimately due to malignant melanoma. EBEL v. DVA 3 Mrs. Ebel, the surviving widow, filed an Application for Dependency and Indemnity Compensation (“DIC”), alleging that her husband’s death was service connected. Specifically, Mrs. Ebel argued that her husband’s malignant melanoma was the result of his exposure to Agent Orange and extensive sunlight while serving in Vietnam. In November 1994 and in May 1998, the Department of Veterans Affairs (“VA”) Regional Office (“RO”) denied Mrs. Ebel’s claim for service connection. In 2004, Mrs. Ebel filed the current claim for service connection and submitted an internet article discussing an Air Force study that found an elevated risk of melanoma in Air Force veterans who were exposed to Agent Orange. After the RO refused to reopen the claim, the Board reopened and remanded the claim, finding that the internet article constituted new and material evidence that needed to be considered in addition to the veteran’s medical records. On remand, a VA medical examiner reviewed the medical records on file, including those created during his period of service and leading up to Mr. Ebel’s death, and various articles regarding the correlation between melanoma and Vietnam veterans. In his April 2008 VA opinion (“examiner’s opinion”), the examiner determined that “[i]t is at least as likely as not . . . that the veteran’s melanoma was causally related to his active duty service, including exposure to herbicide agents and sunlight.” J.A. 50. The RO again denied the claim, finding that “the examiner[‘s] opinion is unsubstantiated by the medical evidence of record” and otherwise there was “no evidence showing malignant melanoma manifest to a compensable degree within the one year presumptive period following discharge from service.” J.A. 43. Mrs. Ebel appealed. EBEL v. DVA 4 On October 21, 2008, the Board affirmed the RO’s denial. While the Board noted the various medical records documenting Mr. Ebel’s health from his time in service until his death in 1994, it based its decision on the relative weight of the examiner’s opinion as compared to various National Academy of Science (“NAS”) reports. It found that the “April 2008 opinion is certainly competent evidence of causation and must be considered,” but concluded that this one opinion was not entitled to more weight than the VA findings based on the NAS reports. J.A. 24-26. The Board reasoned that if “credible evidence for an association between a disorder and herbicide exposure was equal to or outweighed the evidence against, then by law [the] VA would be required to establish a presumption.” J.A. 26. Because no presumption could be established, the Board concluded that the medical opinion could not be sufficient to establish a service connection. On appeal, the Veterans Court vacated and remanded. It held that “the Board improperly weighed the VA [examiner’s] opinion providing a direct nexus against the NAS studies that pertain to whether a disease should be considered presumptively due to exposure to Agent Orange.” Ebel, 2011 WL 378851, at *3. Because the Board improperly weighed direct service connection evidence against presumptive service connection evidence, the Veterans Court found that the Board “did not adequately consider the evidence of record” and its “statement of reasons and bases [was] inadequate to facilitate review.” Id. at *3-4. The Veterans Court ordered the Board to properly consider the examiner’s opinion and other direct service connection evidence and to determine whether, in view of this evidence, equipoise exists warranting grant of direct service connection. Id. at *4. EBEL v. DVA 5 DISCUSSION The threshold issue in this case is whether this court has jurisdiction over Mrs. Ebel’s appeal. Our jurisdiction to review decisions of the Veterans Court is governed by 38 U.S.C. § 7292. Under § 7292, we have “exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation, or an interpretation thereof,” but, absent a constitutional issue, we cannot review factual determinations or challenges to the application of a law or regulation to facts. 38 U.S.C. § 7292(c)-(d). Unlike statutes governing cases appealed from other tribunals, this provision does not explicitly premise appellate review on the finality of the Veterans Court’s decision. Compare 28 U.S.C. § 1295(a)(1) (conferring jurisdiction over “an appeal from a final decision of a district court”) with 38 U.S.C. § 7292(a) (“After a decision of the [Veterans Court] is entered in a case, any party to the case may obtain a review of the decision . . . .”). Nonetheless, we have “‘generally declined to review nonfinal orders of the Veterans Court.’” Joyce v. Nicholson, 443 F.3d 845, 849 (Fed. Cir. 2006) (quoting Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002)). This finality rule serves several purposes: it “promot[es] efficient judicial administration,” “emphasize[s] the deference that appellate courts owe to the trial judge,” and “reduces harassment of opponents and the clogging of the courts through successive appeals.” Williams, 275 F.3d at 1364 (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981)). Thus, we generally do not review the Veterans Court’s remand orders because they are not final decisions. Joyce, 443 F.3d at 849 (“We have repeatedly made clear EBEL v. DVA 6 that a decision by the [Veterans Court] remanding to the Board is non-final and not reviewable.”); Jones v. Nicholson, 431 F.3d 1353, 1357 (Fed. Cir. 2005); Williams, 275 F.3d at 1363; Adams v. Principi, 256 F.3d 1318, 1321 (Fed. Cir. 2001). We will depart from this strict rule of finality only when three conditions (the Williams conditions) are met: (1) [T]here must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue. Williams, 275 F.3d at 1364 (footnotes omitted); see Mlechick v. Mansfield, 503 F.3d 1340, 1343 (Fed. Cir. 2007); Joyce, 443 F.3d at 849; Jones, 431 F.3d at 1358. This exception to the finality rule is narrow. Jones, 431 F.3d at 1358 & n.3 (noting that the Supreme Court has emphasized that departures from the finality rule should occur “‘only when observance of it would practically defeat the right to any review at all’” (quoting Flanagan v. United States, 465 U.S. 259, 263 (1984))); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (explaining that the Williams conditions are met only in rare circumstances); Adams, 256 F.3d at 1321 (noting that the finality rule should only give way in “unusual circumstances”). EBEL v. DVA 7 The remand order in this case does not meet the narrow exception articulated in Williams.1 Upon a close reading of the remand order, we do not find that the Veterans Court made a clear and final decision on a legal issue as necessary under the first Williams condition. Mrs. Ebel does not allege that the remand order misinterprets any statutory or regulatory language or misapplies binding case law.2 Rather, Mrs. Ebel alleges that the Veterans Court committed error by remanding and that it should have found that the examiner’s report was sufficient to establish direct service connection and reversed. This is not a legal issue over which we have jurisdiction but rather presents questions of fact and questions of law 1 If we were to hold otherwise, then virtually any petitioner would satisfy the Williams conditions by merely appealing a remand order and arguing that the petitioner was entitled to a reversal on the record. Such a holding would cause the allegedly narrow exception under Williams to swallow our strict rule of finality. 2 Unlike the remand order here, prior remand orders in which we have found the first Williams condition satisfied involved the Veterans Court’s interpretation of statutes or regulations, or binding case law. See, e.g., Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275 (Fed. Cir. 2009) (finding the clear and final decision was that 38 U.S.C. § 5103(a) required the VA to provide a veteran with relevant criteria); Mlechick, 503 F.3d at 1343-44(holding that the clear and final legal decision was the Veterans Court’s interpretation of the rule of prejudicial error); Smith v. Nicholson, 451 F.3d 1344, 1348 (Fed. Cir. 2006) (finding that the court’s interpretation of the regulations was a clear and final decision on a legal issue); Myore v. Principi, 323 F.3d 1347, 1351 (Fed. Cir. 2003)(finding that the Veterans Court’s interpretation of §§ 1310(a) and 1110 was a clear and final decision on a legal issue). EBEL v. DVA 8 applied to fact. 38 U.S.C. § 7292; see Cook v. Principi, 353 F.3d 937, 941 (Fed. Cir. 2003). To evaluate the issue Mrs. Ebel appeals, first we would need to analyze the surrounding facts, such as whether the examiner’s opinion is the only evidence on record and is sufficient, standing alone, to establish a direct service connection; then, we would need to evaluate the remand decision for an abuse of discretion. See Appellant’s Br. 20-21 (asking this court to determine that Mrs. Ebel satisfied the requirements necessary to prove entitlement to DIC). Because the issue Mrs. Ebel raises is not a legal one, she does not satisfy the jurisdictional requirements for non-final orders articulated in Williams. To hold otherwise would lead to the odd result that an appeal could satisfy the first condition under Williams—that there was a clear and final decision of a legal issue—but not the jurisdictional statute limiting our jurisdiction to questions of law. Nevertheless, Mrs. Ebel argues that case law requires us to find that her challenge to the Veterans Court’s decision to remand satisfies the first Williams condition. While we have previously found that a decision to remand could constitute a clear and final legal decision satisfying the first Williams condition, this case is distinguishable. Unlike other cases, such as Byron v. Shinseki, where the Veterans Court explicitly analyzed its statutory authority and held that it did not have the authority to reverse and must remand, the court here made no such legal determination and Mrs. Ebel does not allege that any statute was violated. No. 2011-7170, slip op. (Fed. Cir. Feb. 17, 2012)(finding the first condition met where the Veterans Court decision analyzed case law to determine that reversal was precluded and remand was required); see Joyce, 443 F.3d at 849 (“We have repeatedly made clear that a decision by the [Veterans Court] remanding to the Board is non-final and not reviewable. . . . [unless] the remand action itself EBEL v. DVA 9 would independently violate the rights of the veteran, for example, where a remand would be barred by statute.”). Rather, the Veterans Court evaluated the Board’s factual determinations and remanded because the “Board did not adequately consider the evidence of record” such that the Board’s “statements of reasons and bases [were] inadequate to facilitate review.” Ebel, 2011 WL 378851, at *3-4. The basis of this remand is most similar to that of Williams, where we held that the first condition was not met because “the [Veterans Court] has merely remanded for further consideration of the issues by the Board as a predicate to further review of those issues by the [Veterans Court].” 275 F.3d at 1365. Mrs. Ebel counters that her case is more analogous to Adams, a pre-Williams case in which we reviewed a non-final remand order. Yet, the decision in Adams is limited. According to the opinion, the case presented “unusual circumstances”—the veteran had already established entitlement to compensation based on a presumptive service connection and was arguing that because he had an established right to a favorable decision, the remand was prohibited. Adams 256 F.3d at 1321; see also Stevens v. Principi, 289 F.3d 814, 817 (Fed. Cir. 2002) (finding the first condition met where the veteran presented similarly unusual circumstances). Mrs. Ebel’s appeal does not present these unusual circumstances. There was no finding that Mrs. Ebel has an entitlement to a finding of direct service connection3 and Mrs. Ebel does not allege that the re- 3 On appeal, Mrs. Ebel has represented that the examiner’s opinion is the only evidence of direct service connection and thus entitlement is guaranteed. The record suggests otherwise. The Board’s decision describes various service records and personal medical records that are already in the record but were not considered when the Board weighed the evidence. See J.A. 22-24, 43. As the Secretary indicated during oral argument, in addition EBEL v. DVA 10 mand was for a prohibitive purpose or violated statutory authority. Thus, Mrs. Ebel has failed to identify a clear and final decision on a legal issue over which this court has jurisdiction and our case law is of no avail to her. In order for this court to have jurisdiction over a nonfinal remand order, each of the Williams conditions must be met. Because Mrs. Ebel has not met the first Williams condition, we dismiss her appeal for lack of jurisdiction. DISMISSED to the examiner’s opinion, those records are pertinent to a direct service connection determination.