we will depart from the strict rule of finality when the Court of Appeals for Veterans Claims has remanded for further proceedings only if three conditions are satisfied: (1) there 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. 275 F.3d 1361, 1364 (Fed. Cir. 2002); see also Deloach v. Shinseki, 704 F.3d 1370, 1375-76 (Fed. Cir. 2013); Ebel v. Shinseki, 673 F.3d 1337, 1340 (Fed. Cir. 2012); Byron v. Shinseki, 670 F.3d 1202, 1204-05 (Fed. Cir. 2012).

The Veterans Court has no statutory authority to make factual findings in the first instance. 38 U.S.C. § 7261(c); Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013).

Contrary to the dissent's position, section 7261 is relevant here even though the Board made no underlying finding of fact. By making an independent finding of fact absent an underlying factual finding by the Board, the Veterans Court both exceeds its jurisdiction to “review” the Board's decision under § 7252and impermissibly engages in first-instance fact finding barred by § 7261. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.Cir.2013).1. The Veterans Court Considered Evidence That Was Not In the Record Before the Board

As we have recognized, the statute prohibits the court from making factual findings in the first instance." Deloach v. Shinseki , 704 F.3d 1370, 1380 (Fed. Cir. 2013) (emphasis in original). "[F]act-finding in veterans cases is to be done by the expert [Board], not by the Veterans Court.

Ordinarily, this court will decline to review remand orders of the Veterans Court. See Deloach v. Shinseki, 704 F.3d 1370, 1375-76 (Fed. Cir. 2013); Ebel v. Shinseki, 673 F.3d 1337, 1340 (Fed. Cir. 2012); Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002). The general rule that this court does not review nonfinal decisions is subject to an exception, however, that allows appellants to challenge whether the Veterans Court did not have authority to remand the case.

The Veterans Court does not have jurisdiction to make de novo findings of fact. See Tadlock v. McDonough, 5 F.4th 1327, 1333 (Fed. Cir. 2021) (explaining that "Congress expressly limited the Veterans Court's jurisdiction to exclude de novo fact-finding"); 38 U.S.C. § 7261(c) ("In no event shall findings of fact made by the Secretary or the Board of Veterans' Appeals be subject to trial de novo by the [Veterans] Court."); Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) ("As we have recognized, the statute prohibits the court from making factual findings in the first instance."). Ms. Hicks' status as an eligible accrued-benefits claimant is a factually intensive inquiry that the Veterans Court is not permitted to make in the first instance and, as such, her arguments with respect to Breedlove must fail.

He also relies on Chavez, where the veteran claimed "that when the Board fails to provide adequate reasons or bases in support of its decision that a disability rating was reduced in accordance with law, the Veterans Court is legally compelled to reverse the Board outright and may not remand the case to the Board for further proceedings." 98 F.4th at 1373; see also Deloach v. Shinseki, 704 F.3d 1370, 1376 (Fed. Cir. 2013). We held that jurisdiction existed.

Because the Board has not made this factual determination in the first instance, the Veterans Court is statutorily prohibited from doing so. 38 U.S.C. § 7261(c); Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013). Thus, contrary to the government's position, the Veterans Court's decision cannot be characterized as an application of Kisor II to Mr. Thomas' case.

As a general rule, however, this court will not review remand orders issued by the Veterans Court because they are not final judgments. See, e.g., Deloach v. Shinseki, 704 F.3d 1370, 1375-76 (Fed. Cir. 2013) ("Generally, we decline to review remand orders of the [Veterans Court] because they are viewed as non-final decisions."); Adams v. Prin-cipi, 256 F.3d 1318, 1320 (Fed. Cir. 2001

We do not have jurisdiction to reweigh factual findings reached by the Board, or to reach our own findings of fact in the first instance. 38 U.S.C. § 7292(d)(2); Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013).