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Significant Judicial Precedent and Its Effect on the Board of Veterans Appeals Throughout FY 2015

VA Disability, VA Law

Significant Judicial Precedent and Its Effect on the Board Throughout FY 2015, the CAVC and the Federal Circuit issued many significant decisions that impacted the way VA adjudicates appeals, including the following:
►Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015):
In this case, the incarcerated Appellant requested a Board hearing and noted that his next potential opportunity for parole was over a year later. The RO scheduled the hearing in the interim and the Appellant did not attend. The Appellant requested a rescheduled hearing, but the Board denied the Appellant’s request and denied the appeal on the merits. The claim was appealed to the CAVC, where the Appellant was represented by counsel. The hearing issue was not raised to the CAVC, but the case was remanded on other grounds. The Board then remanded the case to the RO for additional development while noting that the Appellant “has not renewed his request” for a hearing. The Board eventually denied the claim again. During the second appeal to the CAVC, the Appellant argued that the Board erred by denying him his right to a hearing. The CAVC refused to consider the argument because it had not been raised either in the prior CAVC appeal or to the Board during the intervening proceedings.
The Federal Circuit affirmed the CAVC. In doing so, it acknowledged that the doctrine of issue exhaustion was appropriate both before the Board and the CAVC in certain circumstances. However, the Federal Circuit also noted that the Board has a special obligation to read filings liberally, whether submitted by counsel or pro se appellant. The Federal Circuit then analyzed what constituted a liberal construction for these purposes, stating: “There is a significant difference between considering closely-related theories and evidence that could support [an Appellant’s] claim for disability benefits and considering procedural issues that are collateral to the merits.” The Federal Circuit stated that, for procedural issues, an Appellant’s interest “may be better served by resolution of his claims” rather than by a remand that may not change the final outcome. As a result, the Federal Circuit stated: “Having initially failed to raise the procedural issue, the [Appellant] should not be able to resurrect it months or even years later when, based on new circumstances, the [Appellant] decides that raising the issue is now advantageous.” Accordingly, the Federal Circuit held: “[t]he Board’s obligation to read filings in a liberal manner does not require the Board or the [CAVC] to search the record and address procedural arguments when the [Appellant] fails to raise them before the Board.”
This case is significant as it relieves the Board from searching the record to address procedural arguments not raised by the Appellant.


►Nohr v. McDonald, 27 Vet. App. 124 (2015):
In this case, the Board denied disability compensation benefits for a dysthymic disorder based on a finding that clear andunmistakable evidence demonstrated that the dysthymic disorder preexisted active duty service and was not aggravated by service, relying in part on a VHA specialist’s opinion. Prior to issuing its decision, the Board provided the Appellant and his representative with a copy of the VHA specialist’s opinion. In response, the Appellant submitted questions and requests for documents described as “interrogatories” for the specialist to answer concerning her opinion. In the alternative, the Appellant requested that the Board subpoena the specialist to appear at a personal hearing. In its decision denying disability compensation benefits for a dysthymic disorder, the Board denied the Appellant’s requests to have the specialist answer interrogatories or to issue a subpoena.
On appeal to the CAVC, the Appellant contended, in relevant part, that the Board violated his Fifth Amendment procedural due process rights when it declined to either require the specialist to respond to the set of interrogatories or issue a subpoena ordering the specialist to appear for a hearing. VA countered that the Appellant had no constitutional right to submit interrogatories to doctors who provide VA medical opinions, or to otherwise confront doctors at a hearing.
The CAVC determined that the submission of interrogatories to the Board reasonably raised issues concerning the competence of the VHA expert, the adequacy of her opinion, and VA’s duty to assist. With respect to the expert, the CAVC found a reasonable basis for the Appellant’s request for the expert’s curriculum vitae, especially in light of the examiner’s identification of a “personal limitation” in providing the opinion. Concerning the duty to obtain records, the CAVC found that the Board did not adequately address why the Appellant’s specific requests in the interrogatories for documents “potentially held by [the expert], a VHA employee” did not obligate VA to make a reasonable effort to assist him in obtaining those records. The CAVC stressed that the Board “reflexively reacted” to the
term “interrogatories,” and as a result, failed to consider the requests in light of the duty to assist. The CAVC ultimately declined to discuss some of the Appellant’s arguments including his Fifth Amendment due process claims, finding that addressing those arguments was unnecessary in light of the holding that VA had not complied with the statutory and regulatory duty to assist.
This case is significant because it clarified that VA’s duty to assist may include efforts to respond to issues reasonably raised by the Appellant via submissions (to possibly include interrogatories) to the Board.


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