Marvin Robinson v. James B. Peake

This version includes the errata dated 3Apr08-e
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 04-1690
MARVIN ROBINSON , APPELLANT ,
V.
JAMES B. PEAKE , M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued May 23, 2007 Decided January 29, 2008 )
Robert V. Chisholm, of Providence, Rhode Island, argued for the appellant. James F.
Cameron, of Montgomery, Alabama, was on the brief for the appellant.
Leslie C. Rogall, with whom Tim S. McClain, General Counsel; R. Randall Campbell,
Assistant General Counsel; and Joan E. Moriarty, Deputy Assistant General Counsel, all of
Washington, D.C., were on the brief for the appellee.
William S. Mailander and Michael P. Horan, both of Washington D.C., were on the brief of
Paralyzed Veterans of America, as amicus curiae; Barbara J. Cook, of Cincinnati, Ohio, was on the
brief for the National Organization of Veterans' Advocates, Inc., as amicus curiae; Landon Overby,
of Washington, D.C., was on the brief for Disabled American Veterans, as amicus curiae; and John
F. Cameron, of Montgomery, Alabama, was on a supplemental brief, as amicus curiae.
Before HAGEL, LANCE, and SCHOELEN, Judges.
HAGEL, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a dissenting
opinion.
HAGEL, Judge: Before the Court is Marvin Robinson's appeal of a May 17, 2004, Board
of Veterans' Appeals (Board) decision in which he was denied service connection on a secondary
basis for heart disease and a thyroid disability. In that decision, the Board also remanded the issue
of entitlement to an increased disability rating for Mr. Robinson's service-connected peptic ulcer
disease. The remanded matter is not before the Court. Because Mr. Robinson has failed to
demonstrate any error in the Board decision or any reason his new theory of entitlement should enjoy
the benefit of a discretionary remand from this Court, the Board decision will be affirmed. See
Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000).
I. FACTS
Mr. Robinson served on active duty in the U.S. Navy from October 1986 to April 1988. In
November 1988, he was awarded service connection for peptic ulcer disease effective from the day
following the date of his discharge from service.
In December 1998, he filed a claim for VA benefits for, among other things, heart and thyroid
conditions, which he asserted had their onset in February 1996. In September 1999, a VA regional
office denied him service connection for heart disease and a hyperthyroid condition secondary to his
service-connected peptic ulcer disease. Mr. Robinson filed a Notice of Disagreement in November
1999 asserting that he disagreed with the regional office's denial of "service connection for heart
disease and hyperthyroid condition as secondary to [his] service[-]connected peptic ulcer disease."
Record (R.) at 139 (emphasis added). That Notice of Disagreement was submitted along with a letter
from attorney John F. Cameron, informing VA that attorney Cameron was being designated as Mr.
Robinson's attorney. R. at 141-42. Attorney Cameron asked that multiple documents, including Mr.
Robinson's Notice of Disagreement, be associated with Mr. Robinson's claims file.
In October 2001, the Board remanded Mr. Robinson's claims to the regional office for
additional development. Specifically, the Board ordered the regional office, among other things, to
(1) "arrange for a VA examination by an appropriate specialist in order to determine the nature,
severity, and etiology of the thyroid disorder" and (2) "arrange for a VA examination by a
cardiovascular specialist in order to determine the nature, severity, and etiology of any cardiovascular
disorder." R. at 189-90. The examiner was specifically directed to opine as to whether those
conditions were related to or aggravated by Mr. Robinson's service-connected peptic ulcer disease.
The report from a November 2002 VA thyroid and parathyroid diseases examination reflects
the examiner's opinion that Mr. Robinson's "chest pain . . . claimed as heart problems . . . was
secondary to his [h]yperthyroidism" and that "[t]here is no heart problem that is attributable to his
service[-]connected peptic ulcer disease[;] and his thyroid condition . . . is not related to his service-
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connected peptic ulcer disease." R. at 697. There is of record a document that purports to be the
report from a November 2002 VA heart examination. See R. at 698. Under the heading
"[e]xamination results," that document states only the following: "Please see the Thyroid/Parathyroid
compensation and pensions examination." Id.The Board, in the May 2004 decision now on appeal, denied service connection on a
secondary basis for heart disease and a thyroid disability. In so doing, the Board relied on the
November 2002 VA examination report, which "found no relationship between the service-
connected peptic ulcer disease and the two later arising diseases." R. at 9.
In his brief, Mr. Robinson raises three arguments. First, he contends that the Board violated
Stegall v. West, 11 Vet.App. 268, 271 (1998), by failing to ensure compliance with the October 2001
Board remand order. In that regard, he argues that the examiner failed to discuss the etiology of the
thyroid and cardiovascular conditions, as ordered by the Board. Appellant's Brief (Br.) at 8. His
second argument is related to his first–that the Secretary violated the duty to assist by relying on
inadequate medical examination reports. See id. at 9-10. His third and final argument is that the
Board violated Schroeder v. West, 212 F.3d 1265 (Fed. Cir. 2000), by failing to adjudicate whether
he is entitled to service connection on a direct basis for heart disease and a thyroid disability.
In response, the Secretary contends that Mr. Robinson is challenging the propriety of the
November 2002 VA examination for the first time on appeal and that the "Court should refrain from
considering such arguments raised for the first time on appeal." Secretary's Br. at 9. He further
contends that, should the Court consider the argument concerning the propriety of the November
2002 VA examination, that examination did comply with the Board's prior remand instructions. The
Secretary asserts that Mr. Robinson was represented before the Board by the same attorney
representing him before the Court and that, as a consequence, the issue should be deemed to have
been waived. Id. at 13-14. Responding to Mr. Robinson's final argument, the Secretary asserts that
Mr. Robinson "has consistently maintained to the [A]gency since the initial filing of his claim in
1998 that he believed his disabilities were caused on a secondary basis by his service-connected
disability" and, thus, the Board did not err in failing to adjudicate entitlement to service connection
for heart disease and a thyroid disability on a direct basis. Id. at 17.
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On February 8, 2007, the Court issued an order notifying the parties that it was interested in
resolving, among other things, the following two questions raised in this appeal: First, whether or
not representation by counsel before the Agency is a factor to be considered in determining whether
the Court should apply the exhaustion doctrine to affirm a Board decision rather than adjudicate or
remand a new theory of entitlement first raised on appeal. And, second, whether representation by
counsel before the Agency has any effect on the Court's analysis of whether VA fulfilled its
obligation to consider and decide all issues reasonably raised by the claim. The Court then allowed
the parties to file supplemental pleadings addressing these issues. In addition, the Court allowed for
the filing of amicus briefs.
In response to that order, the Court received supplemental pleadings from the parties and
multiple amicus briefs. The gist of Mr. Robinson's supplemental pleading and the amicus filings is
that the Court cannot impose an exhaustion requirement because to do so would violate the
principles established in the U.S. Supreme Court's decision in Sims v. Apfel, 530 U.S. 103 (2000).
In addition, they argue that the Court should not treat differently appellants represented by counsel
and unrepresented appellants and that the U.S. Court of Appeals for the Federal Circuit's decision
in Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005), should be read narrowly to apply only in
the context of motions to revise based upon clear and unmistakable error.
In his supplemental pleading, the Secretary argues that the Court can apply the exhaustion
doctrine because 38 U.S.C. § 7105(c)(3) provides that an appeal to the Board "should set out specific
allegations of error of fact or law." 38 U.S.C. § 7105(c)(3). He further notes that VA's regulation
essentially mimics the statute. See 38 C.F.R. § 20.202 (2006) ("The Substantive Appeal should set
out specific arguments relating to errors of fact or law made by the agency of original jurisdiction
in reaching the determination, or determinations, being appealed."). Citing Andrews, the Secretary
goes on to assert that whether an appellant is represented by counsel is relevant in assessing the
Secretary's obligation to read claims sympathetically. The Secretary asserts that, in this case, Mr.
Robinson was represented by counsel for the entire six years that his appeal was pending before VA
and that, at no time before VA did Mr. Robinson raise arguments regarding service connection on
a direct basis. In essence, the Secretary argues that this case is more about a represented appellant's
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failure to raise arguments than it is about the Secretary's duty to sympathetically read a claim. The
Court heard oral argument in this matter on May 23, 2007.
II. ANALYSIS
A. Is Mr. Robinson's Argument on Appeal for Service Connection on a Direct Basis for Heart
Disease and a Thyroid Disability a Separate Claim for Disability Benefits for Those Conditions?
Our ability to exercise jurisdiction over this appeal hinges on whether Mr. Robinson is
advancing a new claim or merely a new argument in support of his claim. If Mr. Robinson is
advancing a new claim, we lack jurisdiction over this appeal because there is no final Board decision
on that claim. See 38 U.S.C. §§ 7252(a), 7266(a); see also Breeden v. Principi, 17 Vet. App. 475,
478 (2004). If, on the other hand, Mr. Robinson is advancing a new argument in support of his
claim, then we possess jurisdiction over this appeal and can consider the new argument or remand
the matter for the Board to consider it in the first instance. See Maggitt v. West, 202 F.3d 1370,
1377-78 (Fed. Cir. 2000) (holding that this Court has discretion to hear arguments presented to it in
the first instance, provided that it otherwise has jurisdiction over the claim).
In Roebuck v. Nicholson, we held that "although there may be multiple theories or means of
establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for
the same disability, they constitute the same claim." 20 Vet.App. 307, 313 (2006). Roebuck built
upon our decision in Bingham v. Principi, in which we held that "direct and presumptive service
connection are, by definition, two means (i.e., two theories) by which to reach the same end, namely
service connection." 18 Vet.App. 470, 474 (2004), aff'd, 421 F.3d 1346 (Fed. Cir. 2005). In
affirming Bingham, the Federal Circuit recognized that separate theories in support of a claim for
a particular benefit are not equivalent to separate claims and that a final denial on one theory is a
final denial on all theories. See Bingham, 421 F.3d at 1349 ("[W]e similarly cannot recognize an
exception [to the rule of finality] based on a purported legal error committed by the Board based on
its failure to consider all possible theories that may support a claim.").
There is, however, an early decision in which this Court reached a conclusion unlike the
conclusions discussed above. In Perman v. Brown, a decision issued before Congress eliminated the
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well-grounded-claim requirement by enacting the Veterans Claims Assistance Act of 2000, this
Court, without any legal analysis, held that a claim for disability benefits on a theory of secondary
service connection is separate and distinct from a claim for disability benefits on a theory of direct
service connection for that same disability. 5 Vet.App. 237, 239 (1993). As explained below, the
Federal Circuit overruled this holding.
Under the no longer existent well-grounded-claim requirement, VA's duty to assist was not
triggered until some evidence was presented in support of each element of the claim. See Morton
v. West, 12 Vet.App. 477, 486 (1999). It was under the well-grounded-claim requirement that this
Court endorsed a theory-by-theory concept of what constitutes a claim. In Schroeder v. West, upon
which we based our decision in Bingham, the Federal Circuit repudiated the theory-equals-claim
concept and held that, where a veteran sought benefits for an eye condition and his claim was well
grounded based on in-service exposure to Agent Orange, VA's duty to assist was triggered and VA
had an obligation to explore all legal theories, including those unknown to the veteran, by which a
veteran might be awarded service connection for such disability. 212 F.3d 1265, 1269-71 (Fed. Cir.
2000). Schroeder, like the Federal Circuit's subsequent decision affirming our decision in Bingham,
repudiates the each-theory-equals-a-distinct-claim concept. Although the question in Perman arose
in the context of whether a Notice of Disagreement had been timely filed, and that opinion has never
been explicitly overruled, we conclude that in its decision in Schroeder and in affirming our decision
in Bingham, the Federal Circuit overruled Perman sub silencio. The proposition that separate
theories in support of a claim for benefits for a particular disability equate to separate claims for
benefits for that disability is no longer the law. See Bingham, 421 F.3d at 1349; see also Roebuck,
20 Vet.App. at 313.
Here, Mr. Robinson, who has been represented by attorney Cameron since the submission
of his original Notice of Disagreement in November 1999, has pursued VA benefits for heart disease
and a thyroid disability only on a secondary basis–that is, on the theory that those conditions are
attributable to his service-connected peptic ulcer disease. In his brief in this appeal, Mr. Robinson
contends, for the first time, that he is entitled to service connection for those disabilities on a direct
basis and that the Board erred in failing to address service connection on a direct basis. See
Appellant's Br. at 11-12. In fact, at oral argument, Mr. Robinson even conceded that his claim for
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benefits on a secondary basis has no merit and that all that he pursues now is service connection on
a direct basis. Because, as explained above, his new argument in support of disability benefits on
a direct basis does not constitute a separate claim, we possess jurisdiction over the matter and will
consider the argument. See Maggitt, 202 F.3d at 1377-78. We now address the issue exhaustion.
B. Did the Board Err in Failing To Discuss Service Connection on a Direct Basis?
Having determined that the appellant's theory may be properly raised to the Court, we turn
to the question of whether it was error for the Board not to explicitly address this theory. As
explained below, there are two reasons why we are not persuaded by Mr. Robinson's argument that
the Board erred in failing to discuss service connection on a direct basis. First, Mr. Robinson's
reliance on Schroeder is misplaced. And, second, the facts of this case, particularly the fact that Mr.
Robinson has been represented by counsel since November 1999, compel us to conclude that the
Board did not err in failing to discuss entitlement to disability benefits on a direct basis.
1. Schroeder Does Not Support Mr. Robinson's Argument
Mr. Robinson's terse argument in his brief that the Board erred in failing to discuss service
connection on a direct basis is premised entirely on the Federal Circuit's decision in Schroeder. See
Appellant's Br. at 11-12. The appellant in Schroeder appealed a Board decision denying him service
connection for a bilateral eye disorder on a direct basis and as a result of Agent Orange exposure.
See id. at 1267. On appeal, this Court concluded that the Board had erred in finding the Agent
Orange claim not well grounded. This Court, however, affirmed the Board's decision denying
service connection on a direct basis on the basis that that "claim" was not well grounded.
As discussed above, the Federal Circuit expressly rejected this Court's decision that two
different theories equaled two separate claims and that the duty to assist attached to one theory but
not the other. See supra pp. 5-6; Schroeder, 212 F.3d at 1271 (holding that "once a veteran has
properly made . . . a . . . claim for a current disability as a result of a specific in-service occurrence
or aggravation of a disease or injury, the agency's duty to assist . . . attaches to the investigation of
all possible in-service causes of that current disability, including those unknown to the veteran").
Indeed, VA had itself misconstrued the appellant's one claim (based upon two separate theories) as
two separate claims. See Schroeder 212 F.3d at 1267 ("The agency treated Schroeder's submission
as two new claims, one for direct service connection. . . and a second for service connection . . .
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associated with Agent Orange exposure . . . ."). VA then denied them both. The ultimate issue was
whether those two separate denials could be severed and treated as denials of separate claims, the
effect of which would have been that, under the well-grounded-claim requirement then in effect, the
duty to assist would have attached to the Agent Orange "claim" and not the direct "claim." In
Schroeder, the Federal Circuit answered that question in the negative, and our decisions in Bingham
and Roebuck were built on the foundation the Federal Circuit established in Schroeder.
Mr. Robinson's case is entirely different. VA has consistently denied Mr. Robinson service
connection on a secondary basis only. As a consequence, Schroeder, which dealt with the Board's
denial of a particular benefit claimed on more than one basis, does not fit the facts of this case.
Nothing in the Federal Circuit's decision in Schroeder supports Mr. Robinson's position that the
Board is required to explicitly discuss a particular theory. As a consequence, Schroeder does not
support Mr. Robinson's argument that the Board was required to discuss service connection on a
direct basis.
To summarize, the Federal Circuit's ultimate conclusion in Schroeder is "well grounded as
to one theory, well grounded as to all theories." In other words, the duty to assist applies to the entire
claim, which might require assistance in developing more than one theory in support of that claim.
Schroeder does not address whether VA has an obligation to explicitly discuss sua sponte a
particular theory in the first place.
2. The Board Did Not Err in Failing To Address All Issues
Raised by Mr. Robinson or the Evidence of Record.
Notwithstanding the foregoing, we recognize that, the Board is required to consider all issues
raised either by the claimant, Schroeder, 212 F.3d at 1271, or by the evidence of record, Solomon
v. Brown, 6 Vet.App. 396, 402 (1994). Indeed, by regulation, the Board is required to construe an
appellant's arguments "in a liberal manner for purposes of determining whether they raise issues on
appeal." 38 C.F.R. § 20.202. In addition, the Board is obligated to consider all issues reasonably
raised in an appeal. See Urban v. Principi, 18 Vet.App. 143, 145 (2004) ("When reviewing [the
appellant's] claim, the Board was obligated to consider all reasonably raised matters regarding the
issue on appeal."); Brannon v. West, 12 Vet.App. 32, 35 (1998) (concluding that the Board must
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"adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal
including all documents and oral testimony in the record prior to the Board's decision").
Nonetheless, in addressing those theories, the Court has held that the Board is not required
to discuss all of the evidence of record but rather it must discuss the relevant evidence. Dela Cruz
v. Principi, 15 Vet.App. 143, 149 (2001); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593
(1991) (Board must discuss, inter alia, all relevant evidence). The Court's caselaw in this regard has
been affirmed by the Federal Circuit. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir.
2000) (holding that "absent specific evidence indicating otherwise," VA is presumed to have
reviewed all evidence in the record when making a determination as to service connection). Even
very recently the Federal Circuit reaffirmed that the Board's failure to mention something in its
decision does not trigger a presumption that it was not considered. Newhouse v. Nicholson, 497 F.3d
1298, 1302 (Fed. Cir. 2007).
The essential logic of all these cases is the same. As a nonadversarial adjudicator, the Board's
obligation to analyze claims goes beyond the arguments explicitly made. However, it does not
require the Board to assume the impossible task of inventing and rejecting every conceivable
argument in order to produce a valid decision. The question of the precise location of the line
between the issues fairly raised by the appellant's pleadings and the record and those that are not
must be based on the record in the case at hand; therefore, it is an essentially factual question.
However, we disagree with the dissent as to the fundamental nature of the line. Our dissenting
colleague suggests that "'all possible'" causes must be investigated by the Secretary. Ante p. 17
(quoting Schroeder, 212 F.3d at 1271 (emphasis in original)).
However, Congress has not used such unbounded language. For example, the duty to provide
a medical examination as to whether a particular theory of service connection has merit is explicitly
limited to situations where there is already some evidence in the record of a current disability and
some evidence that "indicates" that the disability "may be associated" with the claimant's military
service. 38 U.S.C. § 5103A(d)(2)(B). If Congress had wanted the Secretary to automatically provide
an examination on all possible theories, then section 5103A would not read the way it does. In this
regard, we note that if the evidence is insufficient to reach the low threshold necessary to trigger the
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duty to assist, see McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006), then any failure to discuss the
theory is necessarily not prejudicial.
Our dissenting colleague supports her belief in the Secretary's duty to investigate all possible
theories by suggesting that causes "unknown" to the appellant are those that "could not have been
previously raised by the appellant." Ante p. 17. This is simply not true. It is entirely possible that
the record might "indicate" a theory of entitlement, but that a lay appellant might not be sophisticated
enough to recognize the theory. Hence, a theory can be both unknown to the appellant and suggested
by the record. See Ingram v. Nicholson, 21 Vet.App. 232, 256-57 (2007) ("[I]t is the Secretary who
knows the provisions of title 38 and can evaluate whether there is potential under the law to
compensate an averred disability based on a sympathetic reading of the material in a pro se
submission."). Accordingly, we conclude that the Board is not required sua sponte to raise and reject
"all possible" theories of entitlement in order to render a valid opinion. The Board commits error
only in failing to discuss a theory of entitlement that was raised either by the appellant or by the
evidence of record. This standard is generous to veterans but respects the reality that the Secretary
does not have the resources to investigate sua sponte every conceivable unsupported theory of
entitlement. In this case, neither the appellant nor the record raised the theory of entitlement to
service connection on a direct basis and, thus, the Board did not err in failing to discuss that theory.
a. Service connection on a direct basis was not raised by the appellant to the Board.
First, we consider whether direct service connection was argued below. To do so, we must
consider how to read the appellant's submissions. In the Secretary's supplemental memorandum of
law, filed in response to the Court's February 8, 2007, order, the Secretary acknowledges that as a
matter of practice "VA reads all submissions sympathetically, even when a claimant is represented
by counsel." Secretary's Supplemental Memorandum at 8. The Secretary goes on to assert that "in
the six years [that Mr. Robinson's] appeal was pending before [VA], neither he nor his counsel
presented any argument to support his claims." Id. at 9. The Secretary is correct. In neither his
January 2000 nor his May 2001 Substantive Appeal did Mr. Robinson assert anything of real
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substance.1 In fact, the argument section on the January 2000 Substantive Appeal form, signed by
Mr. Robinson and attorney Cameron, was left blank. R. at 152. On that form, Mr. Robinson merely
checked a box that indicated that he wanted to appeal all of the issues listed on the Statement of the
Case and any Supplemental Statements of the Case that he had received. See id. The May 2001
Substantive Appeal form, again signed by Mr. Robinson and attorney Cameron, contains little more.
The argument section of that appeal form contains only the following statement: "I disagree with
all of the conclusions in your office's Statement of the Case, dated April 18, 2001. The [r]egional
office failed to consider all of the evidence and failed to follow the correct legal standards in
reaching its conclusions." R. at 174.
The presence of attorney Cameron throughout the appeals process before the Agency is a
significant factor that solidifies our conclusion. See Andrews, 421 F.3d at 1283 (holding that VA's
obligation to sympathetically read a clear-and-unmistakable-error motion does not apply to pleadings
filed by an attorney); see also Overton v. Nicholson, 20 Vet.App. 427, 438 (2006) ("A claimant's
representation by counsel does not alleviate VA's obligation to provide compliant notice; however,
that representation is a factor that must be considered when determining whether that appellant has
been prejudiced . . . ."); id. at 438-39 ("[I]t is not unreasonable to conclude that an appellant's
attorney is acting with the full authority and knowledge of his client and thus, to attribute to his client
the attorney's actions and communications."). We presume that attorney Cameron, an experienced
attorney in veteran's law, says what he means and means what he says. In this case, to the extent that
attorney Cameron made arguments to VA, he specifically used the term "secondary service
connection" and presented arguments consistent with the meaning of that term. Where an attorney
uses terms of art that make sense in the context used, the Board may reasonably conclude that there
is no ambiguity to be resolved with a sympathetic reading or a liberal construction of the pleadings.
In contrast, where a lay person uses a term of art, the Board should still read the whole submission
critically rather than assuming that the language was used correctly. Ingram, 21 Vet.App. at 256
1
Although the law encourages, but does not compel, an appellant to provide substantive argument to the Board,
see supra p. 7, an appellant's failure to do so clearly bears heavily on whether the Board failed to liberally construe the
appellant's assertions, particularly where a veteran is represented by counsel.
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("[A] sympathetic reading of the appellant's pleadings cannot be based on a standard that requires
legal sophistication beyond that which can be expected of a lay claimant . . . .").
Ultimately, there was nothing in Mr. Robinson's appeal to the Board, prepared on his behalf
by attorney Cameron, that the Board could have been expected to liberally construe or read
sympathetically in order to determine that Mr. Robinson was seeking to have his claim adjudicated
on a theory of direct service connection in addition to a theory of secondary service connection.
Therefore, the Board did not err by failing to adjudicate his claim on the basis of direct service
connection. The Statement of the Case to which Mr. Robinson himself referred in his May 2001
Substantive Appeal made it clear that the regional office had adjudicated and denied his heart and
thyroid claims solely on a secondary-service-connection basis. See R. at 179-81. In his appeal to
the Board, Mr. Robinson merely asserted that he disagreed with that specific conclusion. In that
appeal, prepared on his behalf by attorney Cameron, Mr. Robinson did not address the issue on
entitlement to service connection on a direct basis. Indeed, as noted above, it was in Mr. Robinson's
brief to this Court that he first contended that he was seeking service connection on a direct basis.
As a result, we find that no amount of liberal construction by the Board of Mr. Robinson's arguments
on appeal could have led it to believe that Mr. Robinson was taking issue with VA's failure to
adjudicate his claims on a direct theory as opposed to a secondary one. See Schroeder, 212 F.3d at
1271; see also 38 C.F.R. § 20.202.
b. Service connection on a direct basis was not suggested by the record before the Board.
Turning to whether the evidence of record before the Board raised the issue of service
connection on a direct theory, we note that in his opening brief Mr. Robinson does not point to any
evidence that he contends raised that theory or that should have compelled the Board to adjudicate
his claim on a direct theory in addition to a secondary theory. We therefore have no basis for
concluding that the Board erred in failing to address the claim in terms of a theory of direct service
connection. See Solomon, 6 Vet.App. at 402. While Mr. Robinson belatedly tries to point to
evidence in the record in his reply brief, the Court is not required to consider his belated argument
in support of his belated theory. See, e.g., Burton v. Principi, 15 Vet.App. 276, 277 (2001) (per
curiam order) ("We should not encourage the kind of piecemeal litigation in which the appellant here
has engaged."); Tubianosa v. Derwinski, 3 Vet. App. 181, 184 (1992) (noting that the appellant
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"should have developed and presented all of his arguments in his initial pleading"); Fugere v.
Derwinski, 1 Vet. App. 103, 105 (1990) ("[a]dvancing different arguments at successive stages of
the appellate process does not serve the interests of the parties or the Court" because piecemeal
litigation hinders the decisionmaking process).
Our dissenting colleague indicates that she would find the evidence first mentioned in Mr.
Robinson's reply brief sufficient to demonstrate prejudicial error by the Board. We disagree. There
is simply no medical or lay evidence of continuity of symptomatology that links the symptoms
reported in 1988 to Mr. Robinson's current condition in a way that suggests that direct service
connection. It is impractical to require the Board to explicitly mention every prior medical record
noting any type of symptom and state that there is no evidence that the symptom is directly
connected to the current condition. Such a remand would "'unnecessarily impos[e] additional
burdens on the [Board] and . . . VA with no benefit flowing to the veteran.'" Sabonis v. Brown, 6
Vet.App. 426, 430 (1994) (quoting Soyini v. Principi, 1 Vet.App. 540, 546 (1991)). Under Gonzales
and Newhouse, both supra, we must presume that the Board considered this evidence and found it
too scant to warrant comment. That conclusion is not clearly erroneous so we must affirm.
For all the reasons stated above, based on the evidence contained in the record, as well as Mr.
Robinson's statements throughout his appeal, the Court concludes that the Board did not erred in
failing to adjudicate his claim for VA benefits for heart disease and a thyroid disability on a direct
basis. See Schroeder, 212 F.3d at 1271.
C. Compliance With the 2001 Board Remand Order
"[A] remand by this Court or the Board confers on the . . . claimant, as a matter of law, the
right to compliance with the remand orders." Stegall, 11 Vet.App. at 271. When "the remand orders
of the Board or this Court are not complied with, the Board itself errs in failing to [e]nsure
compliance." Id. Such an error can constitute the basis for a remand by this Court. Id.
As an initial matter, Mr. Robinson did not raise his argument regarding VA's compliance
with the Board's remand order of 2001 before the Board in 2004 when the matter was returned to the
Board following its prior remand order. Nevertheless, rather than remanding the case for the Board
to discuss that argument in the first instance, we will consider it ourselves. It is not surprising that
Mr. Robinson's Stegall argument bears a striking resemblance to his argument that the Board erred
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in failing to adjudicate service connection on a direct theory. He argues that the November 2002 VA
examiner failed to comply with the Board's October 2001 remand order because the examiner
addressed only secondary service connection and did not provide an opinion regarding the etiology
of the heart and thyroid conditions. See Appellant's Br. at 8 ("Dr. Schroff improperly limited his
reports only to the issue of whether the two conditions were caused by or related to the [a]ppellant's
[peptic ulcer disease]."). Again, we are not persuaded.
The Board's remand order, read in its entirety, does not support Mr. Robinson's argument.
The relevant paragraphs of the 2001 Board remand order state that the regional office "should
arrange for a VA examination . . . in order to determine the nature, severity, and etiology" of Mr.
Robinson's heart and thyroid disorders. R. at 189-90. Although such broad language arguably
supports Mr. Robinson's argument, it cannot be read out of context. In that regard, later in the
relevant paragraphs of the order, the Board made it abundantly clear that the examiner was requested
to opine only as to whether the heart and thyroid conditions were "caused or . . . aggravated by the
service[-]connected peptic ulcer disease," in other words, as to whether the heart and thyroid
conditions are related to Mr. Robinson's service on a secondary basis. Id. The examiner did not
"improperly" limit his opinion, as Mr. Robinson contends; he complied with the Board's directive
regarding the medical examination and opinion required. Appellant's Br. at 8. In sum, the examiner
answered the questions posed by the Board and did not err in failing to render an opinion on a
subject other than that to which the Board directed him.
D. Duty To Assist Argument
Mr. Robinson argues that the Secretary violated his duty to assist by relying on the inadequate
November 2002 VA examination report. Because the Court has already concluded that that
examination complied with the Board's October 2001 remand instructions, Mr. Robinson's duty-to-
assist argument–a corollary of his previous argument–is unavailing.
E. Remand Under Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000)
Despite the complete absence of error in the Board decision on review, the Court still has the
power to remand this matter if some other factor renders remand appropriate. 38 U.S.C. § 7252(a).
An example of such a factor is an intervening change in law. See, e.g., Vaughn v. Principi, 336 F.3d
1351 (Fed. Cir. 2003). However, our power to find that a non-error remand is appropriate does not
14
mean that an appellant is entitled to such a remand whenever he or she wishes the Board to address
an issue not originally discussed. In Maggitt, the Federal Circuit held that we have discretion to hear
arguments presented to us in the first instance, provided that we otherwise possess jurisdiction over
the claim. See 202 F.3d at 1377. Addressing whether we can invoke an exhaustion requirement
against an appellant to promote judicial efficiency, the Federal Circuit stated that "the Veterans Court
is uniquely positioned to balance and decide the considerations regarding exhaustion in a particular
case." Id. at 1378.
Subsequent to Maggitt, the U.S. Supreme Court issued its decision in Sims, supra. At issue
in Sims was whether a Social Security claimant seeking judicial review of an administrative law
judge's decision waived court consideration of any issues that were not raised in her request for
review by the Social Security Appeals Council. See Sims, 530 U.S. at 105. The Supreme Court
observed that the laws and regulations governing the Social Security Administration do not require
issue exhaustion and that "the desirability of a court imposing a requirement of issue exhaustion
depends on the degree to which the analogy to normal adversarial litigation applies in a particular
administrative proceeding." Id. at 109. Because "Social Security proceedings are inquisitorial rather
than adversarial," the Supreme Court held that a court-imposed issue exhaustion requirement was
inappropriate in the Social Security context. Id. at 110.
While the appellant asserts that Sims has narrowed–if not eliminated–the scope of Maggitt,
the Court does not agree. The Court's authority and Maggitt were already narrower than Sims.
Hence, Sims does not affect Maggitt. To be clear, the essence of Sims is that a Social Security
claimant is not barred from arguing before a Federal district court, a judicial tribunal, a particular
theory of error in the original ALJ decision simply because that error was not raised during the
appeal to the Social Security Appeals Council, an administrative appellant tribunal. Even without
Sims, the Court has long held that the Board itself commits error by failing to address issues
reasonably raised by the record. See Solomon, supra. Hence, consistent with Sims, the Court does
not require that an issue be argued to the Board, an administrative appellate tribunal, in order for it
to be raised before the Court, a judicial tribunal. In other words, Sims holds that an allegation of
error can be raised at any level in a nonadversarial setting. However, Sims does not allow an
15
unsupported theory of entitlement to be raised at any time so as to entitle an appellant to a remand
not based on error.
This case differs from Sims because here the question of whether to exercise discretion to
remand under Maggitt deals only with a situation where the remand would not be based upon error.
Nothing in Sims requires remand in the absence of error, even in a nonadversarial setting. Hence,
the question presented is whether it is appropriate to remand this matter in the absence of error and
based on Mr. Robinson's new theory of direct service connection. As there has been no reason to
excuse the failure to present this theory during the last seven years, the Court concludes that a
remand under Maggitt would be inappropriate. We recently reaffirmed in Bonhomme v. Nicholson,
21 Vet.App. 40, 44 (2007), that it is not the role of the Court to act as "a mere procedural reset button
where any appellant could obtain unlimited remands simply by submitting some new document to
VA." In Bonhomme, the Court denied the appellant's motion for a remand to consider newly
produced evidence that had been submitted to VA. The logic of Bonhomme is only stronger in the
situation where the appellant's request for a discretionary, non-error remand is not even supported
by new evidence. Indeed, Mr. Robinson's request for a remand is not only not supported by new
evidence, but it is also not supported by any evidence previously of record.
To summarize, Mr. Robinson has neither demonstrated error in the Board decision nor
offered a reason why counsel could not have argued the theory of direct service connection during
the seven years this matter has been before VA. In particular, he has offered no reason why this
theory could not have been included in the Substantive Appeals that otherwise contained no
arguments. Nonetheless, counsel is before this Court with a new theory and seeking the advantage
of having the Court return his claim to the head of the line so that his failure to raise this theory
earlier will have no consequence. See 38 U.S.C. § 5109B, 7112 (West Supp. 2006) (requiring
Secretary to provide for "expeditious treatment" of claims remanded by Board or Court). In the
absence of error or a justification for not raising the issue earlier, it is simply not fair to accord Mr.
Robinson special treatment or to make other claimants wait for decisions while he receives expedited
treatment from VA. He remains free to raise this theory in attempt to reopen his claim for service
connection.
16
III. CONCLUSION
On consideration of the foregoing, the May 17, 2004, Board decision is AFFIRMED.
SCHOELEN: Judge, dissenting: I respectfully dissent from the majority's interpretation and
application of the United States Court of Appeals for the Federal Circuit's (Federal Circuit) decision
in Schroeder v. West, 212 F.3d. 1265 (Fed. Cir. 2000), and from the majority's application of Sims v.
Apfel, 530 U.S. 103 (2000), and Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000) in this case.
The appellant argues that "[t]he Board and Secretary failed to address Mr. Robinson's two
claims on a direct service connection basis to adjudicate whether his thyroid condition and/or his
heart condition were caused in part by his military duties in service." Appellant's Brief (Br.) at 11-
12. He contends that this failure is a violation of the Federal Circuit's holding in Schroeder, which
he contends requires VA to assist the claimant by investigating "all possible in-service causes of that
current disability, including those unknown to the veteran." Appellant's Br. at 12 (quoting
Schroeder, 212 F.3d at 1271 (emphasis in original, omitted in Br.)). The majority concludes that
Schroeder, because it dealt with a Board denial based on both a direct theory of service connection
and a presumptive theory of service connection, addresses only the consequences of the Board
denying benefits on multiple bases previously raised by the appellant, and is not applicable because
this case has involved only the denial of benefits on one basis – secondary service connection. Ante
p. 8.
Although Schroeder undeniably arose in the context of the Board denying benefits on
multiple bases that were previously raised by the appellant, I see no reason to limit what is, in my
view, its essential holding, as the majority does. The Federal Circuit did not qualify VA's obligation
to assist a claimant, nor does the Schroeder holding turn on the procedural posture of the case. I
believe the breadth of the Federal Circuit's language also undermines the majority's assertion that
"Schroeder does not address whether VA has an obligation to explicitly discuss sua sponte a
particular theory in the first place." Ante p. 8. If VA's obligation to investigate causes of a disability
includes those causes that are "unknown" to the claimant, these causes would not and could not have
been previously raised by the appellant. VA would necessarily have the obligation to consider those
causes sua sponte. In fact, sua sponte consideration of claims and theories is exactly what is required
of VA as a result of VA's duty to investigate all possible in-service causes of a condition as well as
17
VA's duty to read pro se pleadings – such as the appellant's initial application for benefits –
sympathetically. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) ("Roberson [v.
Principi, 251 F.3d 1378 (Fed. Cir. 2001)] requires, with respect to all pro se pleadings, that the VA
give a sympathetic reading to the veteran's filings." (quoting Szemraj v. Principi, 357 F.3d 1370,
1373 (Fed. Cir. 2004) and citing Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004))); see also
R. at 122-25.
To be clear, VA's duty to assist a claimant by investigating all possible in-service causes of
a current disability is not absolutely limitless–it is an inquiry into what is possible. VA must
consider factors such as the circumstances of service, the type of disability for which the claimant
seeks benefits, and any evidence of record. Regulatory provisions already suggest circumstances in
which VA is not obligated to provide assistance, for example, where the claimant is ineligible for
the benefit sought because of "lack of qualifying service, lack of veteran status, or other lack of legal
eligibility;" if the claim is "inherently incredible or clearly lack[s] merit;" or if the application
requests a "benefit to which the claimant is not entitled as a matter of law." 38 C.F.R. § 3.159(d)(1-
3) (2007). There is no argument that Mr. Robinson's application is not substantially complete, or
that he lacks qualifying service, veteran status, or legal eligibility, or that his claim is inherently
incredible, or that he is not entitled to benefits as a matter of law.
VA's duty to assist the claimant is the cornerstone of the nonadversarial claims adjudication
system the Agency is meant to operate. The Federal Circuit has explained the current nature of the
duty to assist, contrasting it with its former incarnation:
On November 9, 2000, Congress enacted the VCAA [Veterans
Claims Assistance Act], Pub.L. No. 106-475, 114 Stat. 2096 (codified
in scattered sections of 38 U.S.C.), which "amend[ed] title 38, United
States Code, to reaffirm and clarify the duty for the Secretary of
Veterans Affairs to assist claimants for benefits under laws
administered by the Secretary, and for other purposes." Among other
things, the VCAA removed the requirement of former § 5107(a) that
a claimant first establish a well-grounded claim before VA was to
begin providing assistance. Further, it amended existing §§ 5102 and
5103 and added new §§ 5100 and 5103A, expanding VA's duty to
assist claimants in several respects. Specifically, new § 5103A(a)
imposes on VA a duty to assist a claimant by making reasonable
efforts to assist him or her in obtaining evidence necessary to
18
substantiate a claim for benefits. 38 U.S.C. § 5103A(a). Further
provisions outline the details of providing such assistance in
obtaining information, evidence, and records from government and
private sources; informing the claimant if VA is unable to obtain
pertinent evidence; and providing a medical examination or medical
opinion when necessary to resolve the claim.
Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1338-39 (Fed. Cir. 2003).
The critical change in VA's duty to assist wrought by the VCAA regards when the duty is
triggered. The duty to assist is now triggered by VA's receipt of a "substantially complete
application for benefits," 38 C.F.R. § 3.159(c) (2007), which means, for a case such as Mr.
Robinson's, an application "containing the claimant's name . . . sufficient service information for VA
to verify the claimed service, if applicable; [and] the benefit claimed and any medical condition(s)
on which it is based." 38 C.F.R. § 3.159(a)(3) (2007).
In October 2001, the Board remanded Mr. Robinson's claim "for compliance with the notice
and duty to assist provisions contained in the [VCAA]." R. at 187. I cannot say why VA never
considered the possibility of direct service connection in this case because it cannot be ascertained
from the record why VA elected only to consider the claim on a secondary basis. The Board decision
here on appeal provides very little guidance. After listing the various statutory and regulatory
provisions governing the direct theory of service connection (R. at 8), the Board went on only to
evaluate the case as a claim for benefits on a secondary basis, having concluded that "the veteran
contends that [his current conditions] were caused or aggravated by service-connected peptic ulcer
disease, rather than due directly to any incident of active service." R. at 8. The Board did not
provide a sufficient explanation of the reasons or bases for concluding that the appellant's arguments
were competent to limit VA's development and adjudication of the case. See 38 U.S.C. § 7104(d)(1)
(requiring the Board, in rendering its decision, to provide a written statement of the reasons or bases
for its "findings and conclusions[] on all material issues of fact and law presented on the record"; see
also Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992) (indicating that evidence regarding
medical diagnoses provided by a person without "medical knowledge" is not probative); Gilbert v.
Derwinski, 1 Vet.App. 49, 56-57 (1990) (holding that the Board's statement of reasons or bases must
19
be adequate to enable a claimant to understand the precise basis for the Board's decision, as well as
to facilitate review in this Court).
Moreover, I disagree with the majority's statement that the record is devoid of evidence
relevant to the matter of direct service connection. See ante pp. 11-12. In his reply brief, responding
to the Secretary's argument that there is no evidence that he suffered an event, injury or disease in
service related to his claimed disabilities (Secretary's Br. at 14), he cites recurrent chest pain
experienced during active duty (Reply Br. at 7 (citing R. at 36)), and notes that an August 1988
examination report "recorded that Mr. Robinson was having 'irregular chest pains' and was 'see[ing]
black dots in front of eyes (both eyes).'" Reply Br. at 7 (citing R. at 111). Pursuant to 38 U.S.C.
§ 7104(a), "[d]ecisions of the Board shall be based upon the entire record in the proceeding and upon
consideration of all evidence and material of record and applicable provisions of law and regulation."
As discussed above, there was evidence of record that could have implicated a direct theory of
service connection, but the Board did not consider that theory of entitlement. In failing to do so, it
violated section 7104(a)'s mandate by failing to base its decision on "applicable provisions of law
and regulation." Section 7104(a) is operative regardless of what the appellant argues or when he
argues it; it is indisputably the Board's obligation to consider all applicable provisions of law and
regulation, not the appellant's obligation to tell the Board which provisions apply.
Additionally, and again pursuant to my view of Schroeder, presuming that VA has the
obligation to investigate all possible in-service causes of a current disability, if it were possible that
a claimant, by affirmative instruction to the Agency, could waive consideration of such development,
I would not find that the appellant here has done so. See Janssen v. Principi, 15 Vet.App. 370, 374
(2001) (holding that, in order expressly to waive consideration of a legal provision, "the appellant
must first possess a right, he must have knowledge of that right, and he must intend, voluntarily and
freely to relinquish or surrender that right"). I do not believe that the appellant's failure to raise a
point affirmatively during proceedings below constitutes express voluntary relinquishment of
consideration of that point.
I would find that remand is warranted in this case based on VA's failure to comply with
Schroeder, the Board's failure to consider all applicable provisions of law, and the Board's failure
20
to provide an adequate statement of reasons or bases for its conclusion that VA properly assisted Mr.
Robinson in developing his claim.
The majority also discusses the relationship between Maggit v. West, 202 F.3d 1370 (Fed.
Cir. 2000) and Sims, and concludes that "Sims does not affect Maggitt." Ante p. 14. For the reasons
set forth below, I disagree with this conclusion.
In Maggitt, the Federal Circuit held that this Court has discretion to hear arguments presented
to it in the first instance, provided that the Court otherwise possesses jurisdiction over the claim. See
202 F.3d at 1377. Addressing whether the Court could invoke an exhaustion requirement against
an appellant to promote judicial efficiency, the Federal Circuit stated that "the Veterans Court is
uniquely positioned to balance and decide the considerations regarding exhaustion in a particular
case." Id. at 1378. As explained below, however, in light of the Supreme Court's subsequent
decision in Sims, I conclude that a "judicially imposed issue-exhaustion requirement" has no place
in the veterans benefits system, but I believe the majority imposes one de facto in its disposition of
this case. 430 U.S. at 110.
At issue in Sims was whether a Social Security claimant seeking judicial review of an
administrative law judge's decision waived court consideration of any issues that were not raised in
her request for review by the Social Security Appeals Council. See id. at 105. The Supreme Court
observed that the laws and regulations governing the Social Security Administration do not require
issue exhaustion and that "the desirability of a court imposing a requirement of issue exhaustion
depends on the degree to which the analogy to normal adversarial litigation applies in a particular
administrative proceeding." Sims, 530 U.S. at 109. Because "Social Security proceedings are
inquisitorial rather than adversarial," the Supreme Court held that a court-imposed issue exhaustion
requirement was inappropriate in the Social Security context. Id. at 110.
The laws and regulations governing veterans' benefits do not require issue exhaustion.
Although the Secretary asserts that 38 U.S.C. § 7105(d)(3) and 38 C.F.R. § 20.202 (2007) impose
such a requirement, I disagree. First, the statute and regulation both use the permissive word
"should" to encourage, but not require, the claimant to raise particular issues for review.
See 38 U.S.C. § 7105(d)(3) ("The appeal should set out specific allegations of error of fact or law,
such allegations related to specific items in the statement of the case."); 38 C.F.R. § 20.202 ("The
21
Substantive Appeal should set out specific arguments relating to errors of fact or law made by the
agency of original jurisdiction in reaching the determination . . . being appealed . . . . The Board will
construe such arguments in a liberal manner for purposes of determining whether they raise such
issues on appeal."). The use of nonmandatory phrasing means that the statute and regulation do not
impose an issue exhaustion requirement. See Douglas v. Derwinski, 2 Vet.App. 435, 439 (1992)
("Nowhere does the regulation state that only the issues raise in the Form 1-9 must be considered;
nor does the regulation state that the B[oard] must consider only the evidence pertinent to the issues
raised explicitly in the Form 1-9."). Second, like the Social Security adjudication scheme, the
veterans benefits adjudication process is nonadversarial in nature. See Andrews, 421 F.3d at 1283("[P]roceedings before the Board, like those before the Social Security Appeals Council, are
non[]adversarial."); see also Thurber v. Brown, 5 Vet.App. 119, 124 (1993) ("VA's nonadversarial
claims system is predicated upon a structure which provides for notice and an opportunity to be
heard at virtually every step in the process."). Thus, I would conclude, in accord with the Supreme
Court holding in the nonadversarial Social Security setting, that the imposition of an issue
exhaustion requirement in the adjudication of veterans benefits claims is undesirable.1
Although the majority states that "the Court does not require that an issue be argued to the
Board in order for it to be raised here," ante p. 14, the majority goes on to state that "Sims does [not]
allow an unsupported theory of entitlement to be raised at any time so as to entitle an appellant to
a remand not based on error." Id. As a result, the majority finds no reason to remand this case for
the Board to conduct any further development or adjudication of the appellant's claim, which, in fact,
imposes the issue exhaustion requirement that Sims prohibits. With the understanding that Sims
precludes such a result regardless of the appellant's failure to raise this argument below, I believe that
the Court should exercise its discretion to remand this matter to the Agency for proper adjudication
of the direct service connection theory in the first instance. See Maggitt, 202 F.3d at 1378-79
1
Although I would not impose a judicial issue exhaustion requirement, I note that the Federal Circuit has
recognized that regulations impose a limited issue exhaustion requirement in the context of motions to revise based upon
clear and unmistakable error. In Andrews, the Federal Circuit actually discussed Sims and distinguished it on the basis
that 38 C.F.R. § 20.1404(b) imposes a "regulatory requirement for exhaustion." Andrews, 421 F.3d at 1284.
Importantly, however, the Federal Circuit has established that "VA has an antecedent duty to sympathetically read a
[clear-and-unmistakable-error] motion that is filed pro se before determining whether a claim has been pled with
specificity." Johnston v. Nicholson, 421 F.3d 1285, 1287 (Fed. Cir. 2005).
22
(allowing this Court to hear an argument raised before it in the first instance, assuming the Court has
jurisdiction over the claim, or remand the matter to the Board for adjudication in the first instance);
see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are
not appropriate fora for initial fact finding"); Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed. Cir.
1996) (stating that this Court "is not a trier of fact and is not in a position to make . . . factual
determination[s]"); see also 38 U.S.C. § 7261(c). I also note that it should not matter what Mr.
Robinson wrote on his Substantive Appeal, as both the statute and regulation governing the content
of a Substantive Appeal use only hortatory language in telling claimants what to include.
The majority relies, in part, on Bonhomme v. Nicholson, 21 Vet.App. 40 (2007) (per curiam
order), to bolster its conclusion that a "discretionary, non-error remand," ante p. 15, is unwarranted
in this case. Bonhomme addresses an application to reopen a previously and finally denied claim.
The process for reopening a claim involves the submission of new and material evidence. In
Bonhomme, after the Board rendered an adverse decision on the appellant's application and while
appeal of that Board decision was pending at the Court, the appellant obtained additional evidence.
Bonhomme, 21 Vet.App. at 41. The appellant urged the Court to vacate the Board decision and
remand the matter on appeal based on the newly obtained evidence, not based on any flaw in the
Board's decision on the evidence before it at that time. Id. As the Court explained, the Court's
review of a given Agency decision "is limited to reviewing the correctness of the Agency's factual
and legal conclusions based on the record before the [A]gency at the time of its decision." Id. at 43.
The Bonhomme Court noted that granting the appellant's motion for remand "would not be in
keeping with our role as an appellate court," id., because it would require the Court to engage in
factfinding in the first instance or would cause the Court to operate as "a mere procedural reset
button where any appellant could obtain unlimited remands simply by submitting some new
document to VA, which the Court would have to assume is relevant." Id. at 44.
There are several reasons not to rely on Bonhomme as the majority does. First, because it
involves an application to reopen a claim, Bonhomme addresses only the question of what the Court
may do when additional evidence is submitted after the Board denies an application to reopen,
whereas in the instant case, the dispute is about the Agency's treatment of the claim based on the
evidence of record. The majority's assertion that "[t]he logic of Bonhomme is only stronger in the
23
situation where the appellant's request for a . . . remand is not even supported by new evidence," ante
p. 15, is fallacious; if the appellant were to offer new evidence in the instant case, the Court could
not consider it in the first instance. Accordingly, remand is not less appropriate here because Mr.
Robinson did not submit new evidence; it is more appropriate because he has asserted an error – or
at least incompleteness – in VA's review of the evidence of record. Second, Bonhomme explains
what the submission of additional evidence in the application to reopen context does allow: "An
appellant may submit new evidence to the Secretary while a claim is on appeal to this Court, but
such evidence would constitute a new claim to reopen and would not entitle the appellant to an
effective date based upon the date that the claim on appeal was received." Bonhomme, 21 Vet.App.
at 42 (citing Jackson v. Nicholson, 449 F.3d 1204, 1208 (Fed. Cir. 2006)). Thus, the proper course
of action in Bonhomme was clear, and there was no cause for the Court to consider remanding the
case based on the submission of new evidence. Finally, Bonhomme clearly states that "[t]he issue
before the Court is whether the submission of evidence proffered after a final Board decision
provides sufficient justification to nullify the finality of that decision. We hold under the facts of
this case that it does not." Bonhomme, 21 Vet.App. at 41 (emphasis added). The emphasized
language suggests that the Court in Bonhomme viewed its holding as one limited in applicability to
the facts before it and I believe the Court would do well to heed that limitation in this case.
The effect of the majority's reading of Mr. Robinson's pleadings to the Court is that Mr.
Robinson, notwithstanding his argument to the Court that the Board should have considered his
claims on a direct basis and highlighting some evidence that was before the Board that may suggest
the plausibility of his claims on that basis, ends up with an affirmed – and thus final – Board decision
on his claim. This occurs even though the Board at no point addressed the possibility that he might
prevail on his claim on any theory of entitlement other than secondary service connection. In order
to challenge this determination, Mr. Robinson will have to present new and material evidence to
reopen his claim, in which case – should he prevail – he will receive a much later effective date for
his award. See Kent v. Nicholson, 20 Vet.App. 1, 5 (2006); see also 38 U.S.C. §§ 5108, 7104(b)(1).
It is doubtful that Mr. Robinson could prevail on a motion for revision on the basis of clear and
unmistakable error (CUE), because not only is he without the benefit of any evidentiary development
of the direct-service-connection theory, but this Court's adjudication of a matter generally amounts
24
to a final decision that cannot be reviewed by a lower adjudicatory forum. See 38 C.F.R.
§ 20.1400(b)(2) (2007) ("All final Board decisions are subject to revision under this subpart except:
. . . . Decisions on issues which have subsequently been decided by a court of competent
jurisdiction."); see also Disabled Am. Veterans v. Gober, 234 F.3d 682, 693 (Fed. Cir. 2000)
(upholding regulation because "it is improper for a lower tribunal . . . to review the decision of a
higher tribunal").
I am alarmed by the majority's decision, in concluding that this case need not be remanded
for a Board decision in the first instance and in rejecting the appellant's argument made to the Court,
to accord such significance to the fact that the appellant was represented by an attorney during the
appeal process. To be clear, I do not wish to condone or endorse actions by attorneys that may
hamper their clients' efforts to secure benefits, nor actions that hinder proper function of VA's
adjudicatory system. Nevertheless, neither the Secretary nor the majority cites any statutory or
regulatory authority for the conclusion that represented appellants should be treated differently from
their unrepresented counterparts in VA's development of evidence. There is simply no basis in law
to justify narrowing VA's duty to assist with the development of claims, based on the majority's
artificial distinction between represented and unrepresented claimants. Absent congressional action
to limit VA's duty to assist in claims by represented veterans, I believe the Court acts today to
impede "Congress's clear desire to create a framework conducive to efficient claim adjudication"
Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007).
The Court's decision results in a perverse incentive for claimants to elect not to engage
attorneys to represent them before the Agency, despite recent legislation permitting claimants to hire
attorneys much earlier in the claims process than previously allowed. See The Veterans Benefits,
Health Care, and Information Technology Act of 2006, Pub. L. No. 109-461, § 101, 120 Stat. 3403(2006). Mr. Robinson, as a result of the majority's decision in his case, received less favorable
treatment from this Court than he would have received had he represented himself before the
Agency. This result presents a peculiar conundrum for any claimant seeking benefits in a
purportedly nonadversarial, manifestly pro-claimant adjudicatory system. See Summers v. Gober,
225 F.3d 1293 (Fed. Cir. 2000).
25
To summarize, I would hold that VA failed to fulfill its duty to assist as outlined in Schroeder
and the Court should remand this case for correction of this error. Alternatively, I believe this Court
should, in its discretion and pursuant to Maggitt, remand the case for VA to consider the direct
theory of service connection in the first instance.
26