Significant Case Law for 2010, Board Fiscal Report 2010

Excerpt from Board Fiscal Report 2010:

Significant Judicial Precedent and Its Effect on the Board

 Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009), cert. granted, 130 S. Ct. 3502 (2010):
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) affirmed a Court of Appeals for Veterans Claims (CAVC) decision that dismissed the Appellant’s appeal of a Board decision, as his Notice of Appeal was received more than 120 days after the mailing of the Board decision, and therefore was untimely. The CAVC relied on its interpretation of the Supreme Court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), which held that in civil
cases, statutory time periods limiting the time for filing a Notice of Appeal are jurisdictional requirements, and further that courts have no authority to create equitable exceptions to jurisdictional requirements. For that reason, the CAVC held that there was no equitable tolling of the 120 day appeal period for Board decisions.
In its decision, the Federal Circuit found that 38 U.S.C. § 7266(a), which sets forth the period for filing a notice of appeal with the CAVC, is a “time of review” provision, as it specifies the time limit for review in a civil case. Also citing the Bowles decision, the Federal Circuit stated that because time of review provisions are mandatory and jurisdictional, they are not subject to equitable tolling unless Congress so provides. After reviewing the statutory language and its legislative history, the Federal Circuit found that Congress has not provided that the CAVC’s statutory appeal period is non-jurisdictional; therefore, the
Federal Circuit found that the 120 day period is not subject to equitable tolling. This decision overturned the Federal Circuit’s prior cases Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) and Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) which found that 38 U.S.C. § 7266(a) was subject to equitable tolling. The U.S. Supreme Court held oral argument on this case on December 6, 2010 and as such, this important aspect of Veterans law is set to be clarified.

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 Tyrues v. Shinseki, 23 Vet. App. 166 (2009):
In this significant case, the CAVC addressed the scope of its jurisdiction in relation to “inextricably intertwined” issues. The Veteran had filed a claim for service connection for a lung disorder, both on a direct and presumptive basis as due to an undiagnosed illness. In 1998, the Board issued a decision that denied service connection for this disorder on a direct basis, but, in the same decision, it remanded the matter of entitlement to service connection for the lung malady on a presumptive basis for additional development. In 2004, the case returned to the Board, and it issued a decision that denied service connection for the lung
disorder on a presumptive basis. The Veteran timely appealed the 2004 denial to the CAVC.
On appeal, the Veteran urged that the CAVC had jurisdiction to review the Board’s 1998 denial of direct service connection in addition to the 2004 denial on a presumptive basis, as the two matters were “inextricably intertwined.” The CAVC was called upon to determine whether the 1998 remand rendered nonfinal the 1998 denial of service connection on a direct basis. The CAVC rejected the Veteran’s argument and held that the remand did not render the 1998 denial nonfinal, despite the fact that the matters were closely related. In this regard, the CAVC made clear that its “jurisdiction to review a Board decision denying a claim is not controlled by whether the claim denied by the Board is ‘inextricably intertwined’ with another
claim that was either remanded or referred by the Board . . . because the facts underlying the two claims are so closely tied together.” Instead, the CAVC highlighted that its jurisdiction
is determined by whether the Board issued a decision that denied the requested relief and provided notice of appellate rights. The CAVC also made clear that once its jurisdiction is established, it retains the discretion to determine whether the matter on appeal is so closely tied to other matters still pending at VA that it should remand the issue to await disposition of those other intricately related matters by the Agency.

 Bryant v. Shinseki, 23 Vet. App. 488 (2010):
This decision addressed the responsibilities of Veterans Law Judges while conducting hearings on appeal. The CAVC held that 38 C.F.R. § 3.103(c)(2) imposed two distinct duties on a “Board hearing officer:” (1) to fully explain the issues still outstanding that are relevant and material to substantiating the claim; and (2) to suggest the submission of evidence on any issue
material to substantiating the claim when the record is missing evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record. The CAVC indicated that these duties did not require preadjudication of the claim. The CAVC specifically noted that VA’s issuance of a notice letter compliant with 38 U.S.C. § 5103(a), which explains to the claimant what is necessary to substantiate the claim, had no bearing on the “Board hearing officer’s” obligation to suggest the submission of evidence that might have been overlooked. This case is significant because it applies 38 C.F.R. 3.103(c)(2) to the Board, without addressing the regulations set forth in 38 C.F.R. Part 20, Subpart H, which govern Board hearings.

 Vazquez-Flores v. Shinseki, No. 05-0355, 2010 WL 4146124 (Vet. App. Oct. 22, 2010):
When this case was initially before the CAVC, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the CAVC held that proper notice under 38 U.S.C. § 5103(a) required notice tailored to the specific disability of a particular Veteran, and further that such notice must inform the Veteran that he or she should submit evidence describing the effects of the disability on employment and daily life. In 2009, the Federal Circuit vacated and remanded the

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CAVC’s decision, holding that VA is not required to provide Veteran-specific notice prior to adjudication or to request evidence pertaining to the impact of a disability on a Veteran’s daily life. Rather, the notice required was generic notice based on the type of the claim.
Vazquez‑Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In the instant case, the CAVC on remand adopted in part its initial reasoning with respect to the adequacy of the notice provided, stating that § 5103(a) notice for increased ratings requires VA to notify the claimant that he or she should submit medical or lay evidence demonstrating a worsening of the disability and the effect that worsening has on the claimant’s employment.
The CAVC further held that, with respect to whether the notice error was prejudicial to the claimant, when the notice is wholly defective as to a key element needed to substantiate the claim, such that the absence of evidence on that key element will result in a denial, the natural effect is that the claimant is deprived of a meaningful opportunity to participate in the processing of his claim. Under such circumstances, namely that there was no notice on a particular key element, VA has the burden of demonstrating that the notice error was not
prejudicial. The significance of this case is that it further defines what adequate notice is in the context of an increased rating claim, and how the prejudicial error analysis is to be conducted.

 Jones v. Shinseki, 23 Vet. App. 382 (2010):
This decision addressed the issue of when it is appropriate for the Board to rely on an examiner’s statement that an opinion cannot be reached “without resort to mere speculation.”
The CAVC explained that while such a statement is “fraught with ambiguity,” it is a medical conclusion and is not inherently inadequate. However, the CAVC held that the Board can only rely on the statement as an adequate conclusion if the examiner has explained the basis for the conclusion or the Board’s review of the evidence otherwise makes the basis apparent.
If the basis is unclear, then the Board must remand the claim for further development. The CAVC explained that the basis of a statement that an opinion cannot be reached “without resort to mere speculation” will be clear if it is supported by sufficient facts or data and provides a clear rationale that it is a conclusion reached after all relevant medical information has been sought and considered. The examiner’s rationale or the Board’s decision must clearly show that the examiner obtained and considered all tests and records that could help
illuminate any pertinent medical question. The examiner must also explain what facts he or she cannot determine and may have a duty to conduct further medical research. The CAVC noted that such research may be necessary because use of the term “without resort to speculation” should reflect limitations of knowledge in the greater medical community, not just limitations of knowledge of a single examiner. In reaching its holding, the CAVC recognized that there are limitations to medical knowledge and that VA’s duty to assist does not require VA to force an examiner to provide an opinion beyond what may reasonably be concluded from available medical evidence and literature.

 Bardwell v. Shinseki, 24 Vet. App. 36 (2010):
This appeal presented the issue of whether lay evidence can establish an in-service injury or event for the purposes of requiring a medical examination and opinion under 38 C.F.R. § 3.159(c)(4). The Veteran contended that he was competent and credible to assert that he was exposed to gases during training exercises which satisfied the requirement of an in-service
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event and therefore required VA to provide him with an examination. The Board relied on the Veteran’s service records and the lack of evidence confirming such an event to find that the Veteran’s assertions lacked credibility.
In affirming the Board’s decision, the CAVC distinguished the Federal Circuit’s decision in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), which held that the Board could not reject a Veteran’s lay evidence about an in-service medical condition solely because that incident was not reported in the Veteran’s service treatment records. In rejecting the Appellant’s argument that lay evidence of any event occurred must be accepted unless affirmative documentary evidence provides otherwise, the CAVC noted that Congress has expressly provided special status to lay statements by Veterans who engaged in combat with the enemy in 38 U.S.C. § 1154(b); however, it did not do so regarding lay statements of non-combat Veterans. Rather, as in all cases, a non-combat Veteran’s lay statements must be weighed against other evidence, including the absence of military records supporting the
Veteran’s lay assertions.