Stephanie L. Watkins v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5612
STEPHANIE L. WATKINS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued March 8, 2022 Decided June 2, 2022)
Gideon J. Miller, with whom Eric C. Gang was on the brief, both of Hackettstown, New
Jersey, for the appellant.
Omar Yousaf, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief
Counsel; and Sarah W. Fusina, Deputy Chief Counsel, all of Washington, D.C., were on the brief
for the appellee.
Before BARTLEY, Chief Judge, and PIETSCH and ALLEN, Judges.
ALLEN, Judge: This appeal presents several interesting and important questions
concerning how one assesses when a Reserve member of the Armed Forces qualifies as a "veteran"
for the purposes of entitlement to VA disability benefits. Unfortunately, as we will discuss, given
errors by the Board of Veterans' Appeals (Board) in rendering the decision on appeal and the fact
that appellant's counsel raised certain arguments for the first time before the Court, we can reach
only a subset of those issues today. So, we will do what we can to provide clarity in this area given
the situation before us.
Appellant Stephanie L. Watkins served the Nation honorably in the U.S. Navy from August
1984 to August 1992, 1 with subsequent service in the Naval Reserve from August 1992 to
December 1997, including periods of active duty for training (ACDUTRA).2 In this appeal, which
1
Record (R.) at 534, 633.
2
R. at 6. In their respective briefs, both parties cite page 1707 of the record and state that it is appellant's December
4, 1997, Naval Reserve Discharge Memorandum. However, the Secretary indicates that the enclosures noted on page
1707, i.e., appellant's "Record of Discharge," are missing. Supplemental Record at 2. During oral argument, the
Secretary confirmed that there are missing records and, as we explain later, this fact is significant and something the
Board must address on remand.
is timely and over which the Court has jurisdiction,3 she contests an April 21, 2020, Board decision
that denied service connection for bipolar disorder.4 This matter was submitted to a panel of the
Court to address, among other issues, what "full-time duty in the Armed Forces performed by
Reserves for training purposes" and "authorized travel to or from such duty" means under 38
U.S.C. § 101 (22)(A), (E) and 38 C.F.R. § 3.6(c)(1), (6). However, the Board's decision is
inadequate and prevents us from addressing the grounds on which it denied appellant's claim. In
particular, the Board relied heavily on its assessment that appellant was not on authorized travel at
the time her bipolar condition manifested because she had diverted from her "itinerary." As we
explain, the Board not only relied on an incomplete evidentiary record, but it also failed to define
the term "itinerary." And, even if we leave the definitional point aside, the Board did not explain
what it believed appellant's specific "itinerary" was or how it determined appellant's specific
"itinerary." Because the Board provided inadequate reasons or bases for its conclusion that
appellant was not on ACDUTRA when she was treated for bipolar disorder, judicial review is
frustrated, and we will set aside the April 2020 Board decision and remand this matter for further
proceedings. We will also take this opportunity to provide additional guidance to the Board
concerning arguments appellant raised for the first time on appeal before the Court, arguments that
could have an important bearing on the resolution of this appeal when the Board revisits appellant's
claim on remand.
I. FACTS AND PROCEDURAL HISTORY
On April 29, 1997, the Naval and Marine Corps Reserve Center in Little Rock, Arkansas,
issued an advance copy of Orders to appellant at her home address in Memphis, Tennessee. 5
Pursuant to these Advance Orders, appellant was directed to report for ACDUTRA at Naval
3
See 38 U.S.C. §§ 7252(a), 7266(a).
4
R. at 5-14.
5
R. at 250-51. The following language is stamped on the first page of the Orders: "ADVANCE COPY–DO NOT
TRAVEL ON THESE ORDERS." Id. at 250. We asked the Secretary during oral argument whether there were other
copies of any Orders in the record that were not an "advance copy," and he said that the answer was not clear. Oral
Argument (OA) at 56:47-57:33 (the Secretary admits that "the record is not clear whether there are any missing records
or whether there are additional records."), 1:07-:12:06 (the Secretary reiterates that it was not clear whether there were
dispositive records missing), Watkins v. McDonough, U.S. Vet. App. No. 20-5612 (oral argument held Mar. 8, 2022),
http://www.uscourts.cavc.gov/ oral_arguments.php. As we noted in note 2 above, this fact becomes relevant in our
remand guidance to the Board. And while it may appear cumbersome, we will use the phrase "Advance Orders" in
this opinion. The reality is we have no final orders in this record and no explanation from the Board about what the
stamp on the Advance Orders might mean.
2
Hospital Pensacola in Pensacola, Florida, no later than 0700 hours on June 2, 1997, for a period of
12 days, "plus 1 travel day."6 The Advance Orders specified that appellant would be in "duty status
for the number of days of AT that is performed plus the time necessary to travel to and from [her]
duty station not in excess of the allowable constructive times as prescribed in Joint Travel
Regulations [(JTR)]." 7 The Advance Orders also declared that if she required "any justifiable
itinerary changes prior to travel," appellant should "contact a COMNAVRESFOR Travel
Counselor" at a listed phone number.8
On June 2, 1997, appellant was admitted to a civilian hospital in Little Rock, Arkansas,
manifesting acute psychotic symptoms.9 She was discharged on June 12, 1997.10 The following
month, appellant underwent a psychiatric evaluation and was diagnosed with bipolar disorder.
On July 21, 1997, appellant reported to her duty station in Pensacola and was on
ACDUTRA until August 1, 1997.11 The record does not contain copies of any Orders concerning
this period of service, and during oral argument, neither party could explain how it came to be that
appellant served in this period.12 In August and September 1997, appellant underwent VA medical
examinations that confirmed her bipolar disorder diagnosis.13 Appellant was ultimately discharged
from the Naval Reserve in December 1997.14
In September 2012, appellant filed a claim for service connection for bipolar disorder,
alleging that she first developed the disorder in June 1997 when she was reporting for
ACDUTRA.15 The RO denied appellant's claim,16 and she ultimately appealed the decision to the
Board.17 In January 2018, the Board also denied the claim, explaining that it was "impossible for
6
R. at 250.
7
R. at 251.
8
Id.
9
R. at 905.
10
Id.
11
R. at 559-62; see also Appellant's Brief (Br.) at 3; Secretary's Br. at 5.
12
OA at 1:10-:12:06, 1:33:36-:34:12.
13
R. at 237-40, 275-76.
14
R. at 1707.
15
R. at 1164.
16
R. at 792.
17
R. at 272.
3
the Veteran to be on a period of active duty in Florida, as she alleges, at the same time she was
being hospitalized in Arkansas."18 She appealed that decision to the Court.
In July 2019, the Court issued a memorandum decision remanding appellant's claim
because the Board had not considered appellant's expressly raised argument that her bipolar
disorder manifested while she was on authorized travel to her duty station.19 On April 21, 2020,
the Board issued the decision currently on appeal.
In that decision, the Board addressed appellant's statements that her bipolar disorder began
while she was on her way to her duty station. The Board found that "no language in the Orders
states or implies that the Veteran was authorized to include Little Rock, Arkansas in her itinerary
for authorized travel from Memphis, Tennessee to Pensacola, Florida."20 The Board explained that
appellant failed to obtain an "authorized change in the itinerary set forth in the Orders,"21 and found
that she was "neither in active duty status nor on authorized travel to or from such duty or service
at the time of onset of her bipolar disorder on June 2, 1997."22 Based on this reasoning, the Board
denied appellant's claim and this appeal followed.
II. PARTIES' ARGUMENTS
Appellant first argues that to determine the meaning of "full time duty in the Armed Forces
performed by Reserves for training purposes," as contemplated by section 101(22)(A) and 38
C.F.R. § 3.6(c)(1), we must look to United States v. Cline, 29 M.J. 83 (C.M.A. 1989). In that
decision, what is now the United States Court of Appeals for the Armed Forces (CAAF) held that
a Reserve member is on duty 1 minute past midnight on the day the Reserve member is ordered to
appear for training, and therefore at that time subject to the terms of the Uniform Code of Military
Justice (UCMJ), even if the reporting time is not until later in the day. Regardless of whether she
was on authorized travel when her condition manifested, appellant asserts that the Board is bound
by Cline, or at least, it should have discussed that decision when considering her duty status.
18
R. at 210.
19
R. at 102.
20
R. at 11. Note that the Board used the word "Orders" without discussing that the record contains only the document
stamped as an advance copy. We will discuss this issue further below.
21
Id.; see also R. at 13 ("She failed to obtain authorization for an itinerary change to Arkansas
22
R. at 13.
4
Next, appellant argues that if Cline does not control, then basic principles of statutory and
regulatory interpretation reflect that she was on "authorized travel" or a necessary detour en route
to her duty station when her condition manifested. She relies on the Department of Defense's
(DoD's) definition of "authorized travel," which includes whole days. She argues that the Board
provided inadequate reasons or bases for determining that she was not on authorized travel at the
time her condition manifested, because the Board ignored 38 U.S.C. § 101 (22)(E) and 38 C.F.R.
§ 3.6 (c)(6).
Finally, appellant raises a due process argument, asserting that the Naval Reserve's
authorization of a single travel day lulled her into believing that she could travel to (for example)
Little Rock on the way to Pensacola.23 She explains that she was not informed or notified to
proceed directly to and from her home to her duty station, and such misleading notice lead her to
fail to comply with the Advance Orders and deprived her of VA disability compensation, a
protected property interest.
The Secretary argues that we should decline to address appellant's first and third arguments
because she raises them for the first time on appeal before us.24 To the extent we address those
arguments, the Secretary asserts that the CAAF's decision in Cline is not binding on VA and is not
relevant to the question the Board addressed. He also asserts that appellant's Advance Orders
(though he does not acknowledge that the document is stamped as an advance copy) were clear
and whatever uncertainty might exist in those Advance Orders does not amount to a constitutional
due process violation. Turning to the travel-related issue the Board addressed, the Secretary asserts
that the Board did not err when it found that appellant's bipolar disorder did not manifest while she
was on her way to her duty station in Pensacola. The Secretary maintains that the Board was correct
that because appellant did not seek authorization for her travel to Little Rock, she was not in duty
status when her condition manifested. The Secretary also attempts to explain that 38 C.F.R. § 3.6(e) required appellant to proceed directly to her duty station, even though he acknowledges that
the Board did not discuss this regulatory provision. Nevertheless, he argues that a remand for the
Board to discuss this regulation would be futile because there is only one way to view appellant's
actions in deviating from her Advance Orders, namely that the claim must fail.
23
Appellant's Br. at 27.
24
Secretary's Br. at 12 n.2.
5
In her reply brief, appellant reiterates her original arguments and cites VA General Counsel
precedential opinion 12-91 discussing "travel status" for Reservists under section 106(d).25 She
also discusses the DoD's JTRs and explains that they provide that a service member is encouraged
to take the least expensive route when traveling to duty. But those JTRs don't prohibit service
members from taking circuitous routes; they simply do not allow reimbursement for this type of
travel.26 Because the JTRs were specifically cited in her ACDUTRA Advance Orders, she asserts
that the Board should have discussed them in its decision.27
III. ANALYSIS
The general contours of the law are clear. Establishing service connection generally
requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease
or injury; and (3) a nexus between the claimed in-service disease or injury and the present
disability.28 "When a claim for service connection is based on a period of [ACDUTRA], there must
be evidence that the individual concerned became disabled as a result of a disease or injury incurred
or aggravated in the line of duty during the period of [ACDUTRA]."29 In the absence of evidence
of a disability incurred or aggravated during ACDUTRA, the period "would not qualify as 'active
military, naval, or air service,' and the claimant would not achieve veteran status."30 ACDUTRA
means "full-time duty in the Armed Forces performed by Reserves for training purposes," and
"authorized travel to or from such duty."31
The Court reviews the Board's findings regarding service connection for clear error.32 The
Court will overturn the Board's finding only if the record offers no plausible basis for the Board's
25
Reply Br. at 1-2 (citing VA. Gen. Coun. Prec. 12-91 (Mar. 11, 1991)).
26
Appellant's Br. at 21 (citing Def. Travel Mgmt. Off., JOINT TRAVEL REGULATIONS (JTR), ch. 1, General Policy, sec.
0101, Basic Travel Rules, para. 010103, Traveler Responsibilities,
https://www.defensetravel.dod.mil/site/pdcFiles.cfm?dir=/Travel_Regulations/ (Apr. 1, 2020)).
27
Id.28
See Hickson v. West, 12 Vet.App. 247, 253 (1999); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir.
2009).
29
Acciola v. Peake, 22 Vet.App. 320, 324 (2008) (citing 38 U.S.C. §§ 101(2), (22), (24), 1110).
30
Id. (quoting 38 U.S.C. § 101(24)).
31
38 U.S.C. § 101(22)(A), (E); 38 C.F.R. § 3.6 (b).
32
Dyment v. West, 13 Vet.App. 141, 144 (1999).
6
decision and the Court is left with a definite conviction that the Board's decision was in error.33
And finally, for all its findings on a material issue of fact and law, the Board must support its
decision with an adequate statement of reasons or bases that enables a claimant to understand the
precise bases for the Board's decision and facilitates review in this Court.34
As we noted, appellant raised three arguments on appeal. Her first argument concerns the
extent to which VA is bound by—or must consider—decisions from the CAAF that are potentially
relevant to issues before the Board. Her second argument concerns whether any deviation from
her purported "itinerary" in her Advance Orders affected her veteran status. And her third argument
focuses on whether the Advance Orders she traveled on were constitutionally deficient because
they did not adequately notify her about any travel restrictions.
The Secretary argues that we should not address appellant's first and third arguments
because she did not present them to VA. When the Court is presented with an argument newly
raised on appeal over which we have jurisdiction, we have discretion to hear the argument, to
decline to address it, or to remand the matter as appropriate.35 Exercising this discretion entails a
case-by-case analysis that weighs appellant's interests against the "institutional interests the
doctrine exists to service."36 The law continues to recognize the longstanding "importance of issue
exhaustion with respect to administrative tribunals" because "'orderly procedure and good
administration require that objections to the proceedings of an administrative agency be made
while [the agency] has opportunity for correction in order to raise issues reviewable by the
courts.'"37
Because the Board's statement of reasons or bases is inadequate with respect to denying
appellant's claim on travel-related grounds, the Court will use its discretion and decline to resolve
33
See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990).
34
38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
35
Maggitt v. West, 202 F.3d 1370, 1377-89 (Fed. Cir. 2000); see also 38 U.S.C. § 7252(a).
36
Maggitt, 202 F.3d at 1377.
37
Scott v. McDonald, 789 F.3d 1375, 1377 (Fed. Cir. 2015) (quoting United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 37 (1952)).
7
the remaining issues appellant raises for the first time here.38 Appellant will have the opportunity
to raise those issues before the Board on remand, and if she does, the Board must address them.39
A. The Board's statement of reasons or bases is inadequate.
There is no question involving issue exhaustion about appellant's travel-related argument,
and the parties agree that the travel issue was squarely before the Board. So, we will focus our
discussion on that matter. In this case, based on the legal theory the Board adjudicated, service
connection depends on whether appellant was deemed to have been on "authorized travel" to her
duty station when she was treated for bipolar disorder in Little Rock on June 2, 1997.40 As we will
explain, the Board's denial of appellant's claim based on its assessment that appellant deviated
from her travel itinerary as reflected in her Advance Orders is inadequate for multiple reasons.
First, the Board does not explain how it determined that appellant's Advance Orders
required her to follow a specific itinerary. Recall that appellant's Advance Orders directed her to
report for ACDUTRA at the Naval Hospital Pensacola, Florida, no later than 0700 hours on June
2, 1997, for a period of 12 days, "plus 1 travel day."41 Moreover, the Advance Orders state that
appellant would "be in a duty status for the number of days of [training] that is performed plus the
time necessary to travel to and from your duty station not in excess of the allowable constructive
times as prescribed in [JTRs]."42 There is nothing in the Advance Orders that provides a route
appellant was required to follow or destinations that were off-limits. Because there is nothing in
the Advance Orders to suggest that the Naval Reserve required appellant to follow a specific route
to reach Pensacola, the basis of the Board's decision is questionable at best.
38
We note that appellant's current counsel has been her representative since at least May 2018, when appellant
appealed to the Court the first time. Appellant made no mention of Cline or any due process error in that appeal.38 Nor
did she bring these issues to the Board's attention. Counsel should be well aware that it is inappropriate to deprive the
Agency of the opportunity to consider arguments in the first instance. Appellant has not been harmed by the failure to
raise these arguments before the Agency because we are remanding on other grounds. But it is critically important
that all counsel recognize that it is risky business to raise new arguments on appeal to this Court.
39
We recognize that recently, in Carr v. Saul, 141 S. Ct. 1352 (2021), the Supreme Court addressed issue exhaustion
in the context of nonadversarial administrative proceedings before the Social Security Administration. Given our
decision to remand this matter and appellant's opportunity to raise her new arguments to the Agency, we need not
address any implications of that decision on VA's adjudicatory system today.
40
There are no available service records that indicate that appellant was deemed to be on ACDUTRA on June 2, 1997.
See OA at 1:10-:12:06.
41
R. at 250.
42
R. at 251.
8
And the omissions in the Advance Orders are more significant because the Board does not
tell us (1) what it understood appellant's "itinerary" to be, and (2) where it gained this
understanding. Specifically, as it relates to the facts here, the Board fails to explain why Little
Rock was an off-limits destination during appellant's authorized 1 day of travel. The Board offers
no specialized definition of "itinerary," and even if we assume that the Board was referring to the
common definition of "itinerary," which is a planned route for a trip or journey,43 the record does
not support the conclusion that Little Rock was outside any itinerary. As we have explained,
nothing in the Advance Orders mandates a specific route that appellant was required to follow or
precludes travel to specific destinations. In other words, the Advance Orders not provide an
"itinerary" in the dictionary sense of the term.44 Additionally, the Board does not acknowledge that
the version of appellant's "Orders" contained in the record is an "advance copy," and in turn, fails
to explain why it could rely on that version to support its decision. In light of the foregoing, it is
difficult for us to accept that the Board determined what appellant's itinerary was from her Advance
Orders.
This observation then leads us to the question—if the Board did not determine what
appellant's itinerary was through her Advance Orders, did it have some other source? Perhaps there
is a VA regulation or DoD rule that gave the Board the information necessary to determine that
Little Rock was off-limits. There is no sign that is the case here, but if it is, to facilitate judicial
review the Board must do far more to explain its reasoning than it has done here.
There is another possibility. Perhaps the Board looked to nothing to support its conclusion
that Little Rock, Arkansas was off-limits for travel. This would mean that the Board decided on
its own, years after the fact, how appellant should have traveled during her 1 day of authorized
travel, even though the Naval Reserve did not specify a route. If that is the case, the Board
43
"Itinerary" is "the route of a journey or tour or the proposed outline of one." Itinerary, MERRIAM-WEBSTER ONLINE,
https://www.merriam-webster.com/dictionary/itinerary (last visited Mar. 25, 2022); "Itinerary" is "a detailed plan or
route of a trip." Itinerary, CAMBRIDGE DICTIONARY ONLINE,
https://dictionary.cambridge.org/us/dictionary/english/itinerary (last visited Mar. 25, 2022).
44
We have often turned to the dictionary to derive the meaning of undefined terms in certain situations. See Nielson
v. Shinseki, 23 Vet.App. 56, 59 (2009) ("The plain meaning of a term 'begins with its ordinary, contemporary, common
meaning,'" and "[i]t is commonplace to consult dictionaries to ascertain a term's ordinary meaning." (citations
omitted)), aff'd, 607 F.3d 802 (Fed. Cir. 2010). Though not present here, this is especially true in situations involving
statutory and regulatory interpretation. See Ravin v. Wilkie, 31 Vet.App. 104, 109 (2019) (en banc) (we used the
dictionary to define the terms "same work"); see also Sandifer v. U.S. Steel Corp., 571 U.S. 220, 227 (2014) (using a
dictionary to define the word "clothes"); Murakami v. United States, 398 F.3d 1342, 1351 (Fed. Cir. 2005) (using a
dictionary to define the phrase "as a result of").
9
committed legal error. There is no justification for the Board to craft an "itinerary" for appellant—
retrospectively we might add—when the relevant service department did not. We aren't saying that
is necessarily what the Board did here, but we simply can't tell. The bottom line is that there is too
much about the Board's "itinerary" rationale that leaves us guessing. If the reasons-or-bases
requirements means anything, it is that the Board can't make a claimant and this Court guess about
its rationale.45
Leaving aside the "itinerary" point, there is another defect in the Board's reasoning. As we
noted before, appellant's Advance Orders specifically authorized "travel via [privately owned
vehicle (POV)]" and "if POV is used," appellant would be reimbursed for costs associated with
that travel, in accordance with JTRs. 46 The Advance Orders expressly refer to the JTRs that
concern appellant's travel. The Board did not discuss these regulations at all even though the
Advance Orders specifically refer to them and the Board's rationale was focused on travel. The
failure to discuss the JTRs is not trivial given the Board's reasoning. As appellant points out, the
JTRs allow for indirect or circuitous routes at the service member's personal expense. 47 This
provision of the JTRs directly affects whether appellant deviated from any "itinerary" that may
have been provided. Indeed, they suggest that any deviation related only to reimbursement for
expenses and not "veteran" status. But, as we have said, the Board discussed none of this.
In sum, the Board's rationale for denying appellant entitlement to service connection for
bipolar disorder based on deviating from her "itinerary" is seriously flawed. Should the Board rely
on that ground on remand, it must address the matters we have outlined above.
B. Guidance to the Board on Remand
As we noted above, appellant raised two arguments before us that she did not present to
the Board. We did not address the issues on their merits because we are setting aside the Board
decision here for inadequate reasons or bases concerning the travel-related rationale, and we are
remanding the case. But per Quirin v. Shinseki,48 the Court will provide additional guidance to the
46
R. at 251; see JTR, ch. 2, Standard Travel and Transportation Allowances, sec. 0202, Transportation, para. 020210,
Privately Owned Vehicles (POV), https://www.defensetravel.dod.mil/Docs/perdiem/JTR.pdf (Mar. 1, 2022) ("POV"
means "privately owned vehicle").
47
See JTR, ch. 5, Permanent Duty Travel, pt. A, Standard PCS Allowances (Service Members), sec. 0502, PDT
Transportation, para. 050204, Indirect or Circuitous Travel OCONUS,
https://www.defensetravel.dod.mil/Docs/perdiem/JTR.pdf (May 1, 2022).
48
See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009) (noting that the Court may provide guidance to the Board after
10
Board on remand about appellant's "new" arguments on appeal. And we will also provide guidance
to the Board concerning the completeness of the record.
First, appellant argued that the Board was either bound by or should have discussed
decisions of the CAAF including Cline. The first part of appellant's argument is incorrect as a
matter of law because decisions of the CAAF are not binding on the Board. 49 However, such
decisions can be relevant to issues concerning VA disability benefits under certain circumstances.
As appellant asserted in her brief, Cline established a bright-line rule for when a service member
is deemed to be on ACDUTRA for purposes of being subject to the UCMJ.50 That rule appears to
be one that could be relevant to the Board's determination about whether appellant was in duty
status at the time her bipolar condition manifested. After all, if appellant was subject to military
discipline under the UCMJ 1 minute past midnight on June 2, 1997, it seems the Board should
consider that fact when determining whether appellant was eligible for VA disability benefits at
the same time. It would be remarkable if appellant were considered to have been on active duty by
the service department for the purpose of imposing discipline, but not considered to have been on
active duty by VA for the purpose of awarding benefits, and a thorough discussion of any such
conclusion would aid in judicial review. If appellant raises an argument concerning Cline or any
other CAAF decision on remand, the Board is required to discuss those decisions as part of its duty
to provide adequate reasons or bases for all its determinations, which includes providing a
justification for adopting a rule for determining appellant's duty status that is different from the
one applicable in the context of those CAAF decisions.51
Second, appellant argued that her Advance Orders "lulled" her into believing that she could
travel to Little Rock during her authorized travel day.52 Appellant frames her argument on appeal
in terms of the Naval Reserve violating her due process rights by issuing the unclear Advance
determining that remand is warranted).
49
See Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991).
50
Cline, 29 M.J. at 86 (holding that "appellant was subject to the Uniform Code of Military Justice and court-martial
jurisdiction 'from the date[]' he was ordered to appear for training . . . [which] began one minute past midnight on
April 25, 1987").
51
See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57; see also Healey v. McDonough, 33 Vet.App. 312, 320 (2021)
("Notwithstanding its non-binding nature, an agency cannot simply ignore an internal guidance manual when its
contents relate to a particular claim or disability."); Overton v. Wilkie, 30 Vet.App. 257, 264 (2018) (holding that,
while the Board is not bound by the M21-1, "the Board is required to discuss any relevant provisions contained in the
M21-1 as part of its duty to provide adequate reasons or bases.").
52
Appellant's Br. at 27.
11
Orders. As we noted, we decline to address this argument at this juncture, but appellant is free to
raise it on remand. We note, however, that regardless of whether the Naval Reserve violated
appellant's due process rights, as we have explained, the Board must fully explain how it reads
appellant's Advance Orders (or the actual Orders should VA obtain them) and how appellant would
have understood the meaning the Board assigns to them.53
Finally, during oral argument it became clear that the record is incomplete with respect to
appellant's service in the Naval Reserve.54 The record contains only one page from appellant's
"RECORD OF DISCHARGE FROM THE U.S. NAVAL RESERVE." 55 We asked for the
Secretary to submit the other pages or enclosures noted on that first page of the Record of
Discharge to the Court. The Secretary responded that "the enclosures noted in the Record of
Discharge . . . do not appear to be in the record."56 Additionally, when questioned during oral
argument, the Secretary admitted that there were missing documents.57 And as a matter of common
sense, there are clearly gaps in the record. For example, the only copy of the Orders contained in
the record is one that is stamped "advance copy," which indicates that there is potentially some
other copy of appellant's Orders that exists. And as another example, on what basis did appellant
report to Pensacola for ACDTURA in July 1997? Neither party was able to explain these
discrepancies, as we mentioned above. It is improper for the Board to rely on this clearly
incomplete record as evidence, let alone dispositive evidence, that appellant acted in such a manner
as to disqualify herself from receiving VA disability benefits. On remand the Board must address
the issues concerning the incomplete record, especially concerning appellant's Naval Reserve
service. If the Board concludes that VA has taken all steps to obtain these records to no avail, we
remind the Board that when records are lost, it has a heightened duty to assist as well as a
heightened duty "to explain its findings and conclusions and to consider carefully the benefit-of-
the-doubt."58
53
See 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.
54
See OA at 56:47-57:33 and 1:10:00-1:12:06.
55
R. at 1707.
56
Secretary's Supplemental R. at 2.
57
See supra notes 34, 35.
58
O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991); see also Washington v. Nicholson, 19 Vet.App. 362, 370 (2005)
(explaining that when records are presumed lost or destroyed, the Board is under a heightened duty to assist, which
includes advising the claimant to submit alternative forms of evidence and assisting the claimant in obtaining that
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C. Appellant's Rights on Remand
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board.59 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA's postremand notice.60 The Board must consider any such additional evidence or
argument submitted.61 The Board must also proceed expeditiously.62
IV. CONCLUSION
After consideration of the parties' briefs, oral argument, the governing law, and the record,
the Court SETS ASIDE the April 21, 2020, Board decision and REMANDS the matter for
readjudication consistent with this decision.
evidence).
59
Best v. Principi, 15 Vet.App. 18, 20 (2001).
60
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O'Rourke, 30 Vet.App.
92 (2018).
61
Kay v. Principi, 16 Vet.App. 529, 534 (2002).
62
38 U.S.C. §§ 5109B, 7112.
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