## Facts

- A veteran’s widow sought dependency and indemnity compensation based on the theory that the veteran’s cancer and death were caused by in-service exposure to ionizing radiation.
- The Board of Veterans’ Appeals awarded service connection for the cause of death under a regulatory presumption for certain radiation-exposed veterans and assigned an effective date of May 1, 1988, tied to the effective date of the liberalizing regulation.
- The Board did not decide whether the death was directly service connected based on factual findings of actual radiation exposure and medical causation.
- The widow appealed to the Court of Appeals for Veterans Claims, arguing the Board’s failure to address direct service connection was error and requesting reversal and an earlier effective date rather than a remand.
- The Secretary agreed the Board should have addressed direct service connection but argued the proper remedy was vacatur and remand for fact-finding.
- The Veterans Court vacated and remanded for the Board to make direct-service-connection findings and then determine any earlier effective date.
- The widow appealed the Veterans Court’s remand order to the Federal Circuit.

## Issues

1. Whether the Federal Circuit had jurisdiction to review a Veterans Court order that vacated and remanded to the Board for further fact-finding.
2. If reviewable, whether the Veterans Court erred by remanding for initial factual findings on direct service connection instead of reversing and awarding an earlier effective date.

## Decision

- The Federal Circuit dismissed the appeal for lack of jurisdiction because the Veterans Court’s decision was a nonfinal remand order.
- The remand did not terminate the claim or foreclose later review; it required additional fact-finding that could benefit the claimant.
- The court indicated that remand was the proper remedy where the Board had not made necessary findings on direct service connection, because appellate tribunals do not make factual findings in the first instance.

## Legal Principles

- Under 38 U.S.C. § 7292, the Federal Circuit generally lacks jurisdiction to review Veterans Court remand orders that are interlocutory and nonfinal.
- A Veterans Court remand may be reviewable only in a narrow class of cases, such as where the remand effectively ends the claim or otherwise prevents meaningful later review; routine remands for further proceedings are not reviewable.
- When an agency decision lacks required factual findings, the ordinary course is to remand to the agency for additional findings and explanation.
- The Board is the primary fact-finder on questions such as exposure and medical causation; the Veterans Court’s role is appellate review rather than initial fact-finding.
- Reversal is appropriate only when no further fact-finding is needed and only one outcome is permissible on the established record.

## Conclusion

The Federal Circuit held it could not review a Veterans Court order that vacated and remanded for additional Board fact-finding and dismissed the appeal, while reaffirming that unresolved factual issues concerning direct service connection must be decided by the Board on remand rather than by an appellate court through reversal.


Byron v. Shinseki, 670 F.3d 1202 (Fed. Cir. 2012)