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:
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.