Victor B. Skaar v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-2574
VICTOR B. SKAAR, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 2, 2020 December 17, 2020)
Lily Halpern and Molly Petchenik, law students, with whom Michael J. Wishnie, all of
New Haven, Connecticut, appeared for the appellant.
Mark D. Vichich, with whom William A. Hudson, Jr., Acting General Counsel; Mary Ann
Flynn, Chief Counsel; and Megan C. Kral, Deputy Chief Counsel, all of Washington, D.C., were
on the brief for the appellee.
Before BARTLEY, Chief Judge, and ALLEN and MEREDITH, Judges.
ALLEN, Judge, filed the opinion of the Court. MEREDITH, Judge, filed an opinion
concurring in part in the result and dissenting in part.
ALLEN, Judge: In January 1966, a United States Air Force B-52 bomber carrying four
thermonuclear weapons collided with another aircraft over Spain. Two of the nuclear weapons the
B-52 was carrying crashed into the ground and exploded near the village of Palomares. The non-
nuclear explosions of these devices spread radioactive plutonium over the Spanish countryside.
Appellant Victor B. Skaar was one of approximately 1,400 U.S. servicemembers, most from the
Air Force, who responded to this tragic event and participated in cleanup activities.
In an April 14, 2017, decision, the Board of Veterans' Appeals denied Mr. Skaar service
connection for leukopenia, which he claimed was due to exposure to ionizing radiation during the
cleanup activities near Palomares. In addition to contesting the Board's denial of service
connection for leukopenia before the Court, Mr. Skaar contends that the Board erred because it did
not adjudicate what he claims is a pending appeal of a denied claim for service connection for skin
cancer, also claimed as due to exposure to ionizing radiation.
Mr. Skaar sought to proceed as a representative of a class of veterans who had participated
in the Palomares cleanup challenging both the exclusion of Palomares from the list of "radiation
risk activities" under 38 C.F.R. § 3.309 as well as the accuracy of radiation dose estimates the Air
Force provided in the context of 38 C.F.R. § 3.311.1 On December 6, 2019, this Court, sitting en
banc, held for the first time in its history that it may certify classes in the context of an individual
appeal of a Board decision.2 In doing so, as we explain in more detail below, we rejected Mr.
Skaar's request to proceed as a representative of a class challenging the exclusion of Palomares as
a "radiation risk activity" under § 3.309.3 However, we concluded that his appeal could proceed as
a class action with respect to his claim under § 3.311. The Court defined the class for which Mr.
Skaar could serve as a representative as the following:
All U.S. veterans who were present at the 1966 cleanup of plutonium dust at
Palomares, Spain, and whose application for service-connected disability
compensation based on exposure to ionizing radiation VA has denied or will deny
by relying, at least in part, on the findings of dose estimates requested under
38 C.F.R. § 3.311, except those whose claims have been denied and relevant appeal
windows of those denials have expired, or those whose claims have been denied
solely based on dose estimates obtained before 2001.[4]
Today we address the merits of Mr. Skaar's appeal both on the claim for which we granted
class certification as well as the issues he presses on an individual basis. We summarize our
holdings here. Beginning with the class claim concerning radiation dose estimates, we hold that
the Board failed to meet its obligation under 38 C.F.R. § 3.311(c) to ensure that dose estimates VA
received from the Air Force constitute "sound scientific evidence." We will remand this issue to
the Board so it may assess whether the dose estimates the Air Force has provided are based on
such sound scientific evidence, providing an adequate statement of reasons or bases for the
conclusion it reaches.
The questions before us concerning Mr. Skaar's individual claims fall into two categories:
(1) The various arguments appellant advances concerning his skin cancer claim, and (2) whether
1
See Appellant's Motion for Class Certification or Aggregate Resolution.
2
Skaar v. Wilkie (Skaar II), 32 Vet.App. 156, 177-78 (2019) (en banc order). We had previously held that, in
appropriate circumstances, we would certify classes in the context of petitions. See Monk v. Wilkie, 30 Vet.App. 167,
174 (2018) (en banc).
3
Skaar II, 32 Vet.App. at 173-74.
4
Id. at 201.
2
VA has unlawfully failed to include Palomares as a "radiation risk activity" under 38 C.F.R.
§ 3.309.5 As to appellant's skin cancer arguments, we are unable to reach the merits of those claims
because the Board did not address them. But though we lack jurisdiction to address the skin cancer
claim on the merits, we do have jurisdiction to determine whether the Board erred in failing to
address it. We hold that we must remand the skin cancer claim because VA failed to provide a
Statement of the Case (SOC) in response to a valid Notice of Disagreement (NOD) appellant filed.
Concerning the radiation risk activity under § 3.309, we hold that we lack jurisdiction to address
the arguments that remain after the Court's class certification decision because appellant did not
raise them before the Agency. And, as we explain, our class certification decision resolves the
appeal on that issue as to all other matters.
We will proceed as follows. First, we will set out a basic statement of facts that applies
generally to all the claims and that explains how this matter reached the Court. We will, however,
provide more detailed facts in the context of our discussion of the specific claims later in our
opinion. Second, we will describe the legal framework for awarding service connection for
conditions claimed to be caused by exposure to ionizing radiation. Third, we will address the claim
concerning radiation dose estimates under § 3.311 for which appellant represents a class. And
finally, we will discuss appellant's two sets of individual claims concerning skin cancer and the
lack of designation of the Palomares cleanup as a radiation risk activity under § 3.309.
I. GENERAL BACKGROUND
A. Factual Background
Appellant served in the United States Air Force from November 1954 to July 1981,6 and
he participated in and was present at the Palomares cleanup. In fact, as explained further below,
he was in the "High 26" group of service members who had test results that, compared to test
results of other Palomares cleanup workers, showed the highest exposure to radiation, and who
were monitored for a period after the cleanup ended.7 In 1998, he was diagnosed with leukopenia,
5
As we noted, the en banc Court denied Mr. Skaar's request to represent a class with respect to the radiation risk
activity issue under § 3.309. See id. at 173-74. However, as we explain below, the denial of class certification did not
fully resolve this claim on an individual level.
6
Record (R.) at 2.
7
R. at 2124-28.
3
a decrease in white blood cell count. 8 His doctor opined that exposure to ionizing radiation
"[h]istorically does appear to be the positive agent" causing leukopenia, but his doctor concluded
that "we have been unable to prove this." 9 Appellant filed a claim for service connection for
leukopenia in August 1998.10 In February 2000, VA denied his claim because leukopenia is not a
radiogenic disease VA recognizes as resulting from a "radiation-risk activity."11
In March 2011, appellant requested that VA reopen his claim.12 The regional office (RO)
requested a radiation exposure opinion from the Air Force.13 In April 2012, the Air Force estimated
that appellant's maximum total effective dose was 4.2 rem with a bone marrow committed dose of
1.18 rem, compared to annual dose limits of 5 and 50 rem, respectively, for those working in
occupations typically involving radiation exposure.14 Based on these estimates, the director of the
Post 9/11 Environmental Health Program, writing for the Under Secretary for Benefits, advised in
May 2012 that "it is unlikely that [appellant's] leukopenia . . . can be attributed to radiation
exposure while in military service."15 The RO denied appellant's claim in June 2012.16 Appellant
disagreed with the RO's denial and eventually perfected an appeal to the Board.17
In October 2013, a private physician opined that appellant's leukopenia "is likely related to
exposure to heavy radioactive material in [1966]."18 In June 2014, after the Air Force reevaluated
its dose estimate methodologies, the Air Force provided VA with appellant's revised dose estimate,
8
R. at 2157.
9
Id.
10
R. at 2155.
11
R. at 2098.
12
R. at 2077.
13
R. at 1886. We will discuss the procedure for obtaining dose estimates in more detail below.
14
R. at 1888-89. A rem (roentgen equivalent man) is a unit of measurement for radiation. One unit represents "the
dosage of an ionizing radiation that will cause the same biological effect as one roentgen of X-ray or gamma-ray
exposure." MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/rem (last visited Sept. 9,
2020).
15
R. at 1877.
16
R. at 1869.
17
During this time, appellant raised a skin cancer claim based on his exposure to ionizing radiation. We will discuss
the procedural history of that claim below in our analysis of that matter.
18
R. at 39-40.
4
assigning him a new maximum total effective dose of 17.9 rem and a bone marrow committed
dose of 14.2 rem.19
In a May 2015 decision, the Board found the Air Force's revised dose estimates were new
and material evidence warranting the reopening of appellant's claim.20 The Board remanded the
claim to the RO because the Air Force's "revised assessment [was] significantly higher than the
April 2012 assessment," and therefore, "another [dose estimate] opinion [was] warranted."21 In
August 2016, the Director of Compensation Service provided a dose estimate opinion based on a
memorandum from the Deputy Chief Consultant, Post Deployment Health Services, who had
reviewed the June 2014 Air Force dose estimate,22 and medical literature about the medical effects
of ionizing radiation.23 The director found appellant's dose estimate "did not exceed 175.7 rem for
the bone surface, 69.3 for the lungs and 8.4 rem for the liver" and that appellant's leukopenia was
less likely than not related to his radiation exposure.24 The RO again denied appellant's claim.25 In
September 2016, a private physician opined that appellant's leukopenia was "a result of exposure
to ionizing radiation/plutonium."26
In the April 2017 decision on appeal, the Board denied appellant's claim seeking service
connection for leukopenia.27 The Board first noted that leukopenia was "not listed as a disease
specific to radiation-exposed veterans," and thus presumptive service connection under 38 C.F.R.
§ 3.309 was "not for consideration."28 In considering the dose estimate evidence under 38 C.F.R.
§ 3.311, the Board found the May 2012 dose estimate opinion lacked probative value "as it was
based on an inaccurate dose estimate."29 But, the Board found the August 2016 dose estimate
19
R. at 1301, 1274-75.
20
R. at 695-99.
21
R. at 698.
22
R. at 132.
23
R. at 131.
24
Id.
25
R. at 113-14.
26
R. at 38.
27
R. at 2-12.
28
R. at 5.
29
R. at 10.
5
"highly probative" because it "was based on a review of the entire record," while appellant's private
medical opinions were not as probative because "none offered any rationale for their statements."30
Recall that the 2016 dose estimate from the Director of VA's Compensation Service was based on
the revised 2014 dose estimate from the Air Force. Appellant appealed the Board's decision to the
Court.
In February 2019, the Court, retaining jurisdiction over this appeal, remanded the matter
to the Board for the limited purpose of providing a supplemental statement of reasons or bases
addressing arguments appellant raised about whether the dose estimates constituted sound
evidence under 38 C.F.R. § 3.311, but that the Board had failed to address.31 In a March 2019
supplemental statement, the Board found that "on its face [the June 2014 revised dose estimate the
Air Force provided] is based on sound scientific evidence" because it "was based on then recently
re-evaluated internal processes which were initiated to ensure a comprehensive and consistent
approach to dose estimates," and because the revised dose estimate "considered [appellant's]
previously reported intake values based on the application of contemporary modes in his bioassay
data collected in the 1960's."32
With respect to prior inconsistencies in the Air Force's dose methodologies, the Board
stated that "just as it is prohibited from exercising its own independent judgment to resolve medical
questions, the Board is not in a position to exercise such independent judgment on matters
involving scientific expertise." 33 The Board explained it "is bound by regulations of the
Department," and those regulations "provide specific instructions for obtaining dose estimates."34
Thus, "[w]ithout an independent dose estimate, and without a rational basis to reject the competent
findings of the Air Force," the Board found no evidentiary basis on which to grant service
connection. 35 The Board also acknowledged that appellant could have submitted his own
independent dose estimate but that he failed to do so.36
30
R. at 10-11.
31
Skaar v. Wilkie (Skaar I), 31 Vet.App. 16 (2019).
32
Appellee's Response (Resp.) to the Court's February 1, 2019, Order at 4 (Mar. 29, 2019).
33
Id. at 5 (citing Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991)).
34
Id. at 6.
35
Id. at 5.
36
Id. at 6.
6
After we received this supplemental statement from the Board, the Court certified a class
with respect to the dose estimates but found that appellant lacked standing to pursue various other
claims on behalf of the class, including those he asserted under 38 C.F.R. § 3.309. The en banc
Court then returned this matter to a panel to address the merits. After the Court approved a joint
notice plan, we held oral argument. We now decide both the class matter regarding dose estimates
and the remainder of appellant's individual arguments.
B. Legal Landscape for Claimed Exposure to Ionizing Radiation
Congress recognized that for veterans who were exposed to radiation during military
service, the procedure for establishing direct service connection was "unduly burdensome because
many veterans were having difficulties supporting their claims for compensation."37 Thus, for
veterans seeking compensation for diseases related to in-service exposure to radiation, Congress
mandated and VA established special procedures to follow.38
With these provisions in place, a veteran may establish service connection for certain
disabilities claimed as due to in-service exposure to ionizing radiation in one of three ways: (1)
Via the presumption of service connection for radiation-exposed veterans under 38 U.S.C.
§ 1112(c) and 38 C.F.R. § 3.309(d)(3)(ii); (2) by meeting certain conditions specified in 38 C.F.R.
§ 3.311(b) for veterans with radiogenic diseases; or (3) by satisfying the elements of standard,
direct service connection.39 We note that in its decision the Board addressed a theory of standard,
direct service connection, but appellant did not challenge the Board's findings before the Court.
Therefore, this theory is not at issue.40
The first regulatory provision, 38 C.F.R. § 3.309(d), provides a presumption of service
connection for radiation-exposed veterans with certain listed disabilities. The regulation defines
"radiation-exposed veteran" as one who "participated in a radiation-risk activity" and lists specific
radiation-risk activities.41 For the purposes of this appeal, we note that the regulation does not
37
Hilkert v. West, 12 Vet.App. 145, 148 (1991) (en banc) (citing Wandel v. West, 11 Vet.App. 200 (1998)).
38
See Veterans' Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, 98 Stat. 2725(1984).
39
See Rucker v. Brown, 10 Vet.App. 67, 71 (1997) (citing Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994)).
40
See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc).
41
38 C.F.R. § 3.309(d)(3)(i) (2020).
7
include the Palomares cleanup in the regulation's list of radiation risk activities; nor does the
regulation include leukopenia in the regulation's list of presumptive disabilities.
Under the second regulation, 38 C.F.R. § 3.311, the veteran must first establish that he or
she suffers from a radiogenic disease that manifested within a certain time period. 42 Once a
claimant has established a diagnosis of a radiogenic disease within the specified period and claims
that the disease is related to his radiation exposure while in service, VA must obtain a dose
assessment and request exposure data from the veteran's service branch.43 For those claims that
meet these threshold requirements, the RO is required to refer the case to the Under Secretary for
Benefits. 44 If a condition is not recognized by regulation as a "radiogenic disease," the claim
nevertheless must be referred to the Under Secretary for Benefits when a claimant "has cited or
submitted competent scientific or medical evidence that the claimed condition is a radiogenic
disease."45
The Under Secretary for Benefits "shall consider the claim with reference to the factors
specified in paragraph (e) of this section and may request an advisory opinion from the Under
Secretary for Health."46 These factors include the probable dose, sensitivity of the involved tissue,
and the time-lapse between exposure and onset of the disease.47 How VA assesses these factors –
requiring sound medical and scientific evidence – is critical to the matter before the Court, and we
will return to that assessment in a moment. In making the required determination, the Under
Secretary for Benefits may request an advisory opinion from the Under Secretary for Health
because consideration of the claim "relies heavily on medical and scientific findings and
analysis."48 The Court has held that the Under Secretary for Benefits "is not explicitly required to
refer to the factors listed in [§] 3.311(e), but should, rather, consult those factors as a point of
reference when making recommendations to the [RO]."49
42
38 C.F.R. § 3.311(b)(2), (5) (2020).
43
38 C.F.R. § 3.311(a)(1)-(2); see Hilkert, 12 Vet.App. at 148.
44
38 C.F.R. § 3.311(b).
45
38 C.F.R. § 3.311(b)(5); see also Parrish v. Shinseki, 24 Vet.App. 391, 395 (2011).
46
38 C.F.R. § 3.311(c)(1).
47
38 C.F.R. § 3.311(e).
48
Hilkert, 12 Vet.App. at 149; see also 38 C.F.R. § 3.311(c)
49
Stone v. Gober, 14 Vet.App. 116, 120 (2000) (discussing Hilkert, 12 Vet.App. at 149-50).
8
The final determination of the Under Secretary for Benefits is then sent to the agency of
original jurisdiction, which considers the opinion as evidence. 50 In Stone, the Court held that
although the Under Secretary for Benefits was not required to explicitly consider each of the
factors in § 3.311(e), "the cursory explanation provided . . . did not provide adequate rationale for
the conclusion that there was no reasonable possibility that the veteran's cancer was caused by his
in-service exposure as required by 38 C.F.R. § 3.311(c)(ii)."51 Thus, the Court held that the Board
erred in relying on that opinion.52
At oral argument, the Secretary's counsel argued that in subsections (1) and (2), § 3.311(c)
provides the Under Secretary for Benefits with two choices: The Under Secretary may find either
that there is sound evidence to support radiation exposure or there is no reasonable possibility that
a veteran's disease is related to exposure.53 Though the Secretary's counsel initially appeared to
suggest that the requirement of sound scientific and medical evidence applies only to subsection
(1) when the evidence supports granting the claim, but not to subsection (2) when the evidence
supports denying the claim, 54 the Secretary later conceded that the sound-evidence requirement
functionally applies to both subsections.55
We agree that the "sound evidence" requirement applies to both subsections (1) and (2) of
§ 3.311(c). To hold otherwise would mean that the standard for granting a claim based on exposure
to ionizing radiation is different than the standard for denying a claim in a way that is materially
adverse to veterans. And to hold otherwise would allow VA to deny a veteran benefits based on
science that is not sound but only grant benefits only when the science is deemed sound. Such an
interpretation would lead to absurd results, something courts should avoid.56 Furthermore, it is
clear from the Board's supplemental statement and the Secretary's filings throughout this appeal
that both understood that whether the dose estimates were sound evidence was a key consideration
50
38 C.F.R. § 3.311(f).
51
Stone, 14 Vet.App. at 120.
52
Id.
53
Oral Argument (O.A.) at 46:33-47:47, 47:50-48:14, Skaar v. Wilkie (Skaar III), U.S. Vet. App. No. 17-2574 (oral
argument held Sept. 2, 2020), https://www.uscourts.cavc.gov/oral_arguments_audio.php.
54
Id.
55
Id. at 48:14-46.
56
See, e.g., McNeill v. United States, 563 U.S. 816, 822 (2011); United States v. Wilson, 503 U.S. 329, 334 (1992);
Timex V.I., Inc. v. United States, 157 F.3d 879, 886 (Fed. Cir. 1998); Atencio v. O'Rourke, 30 Vet.App. 74, 83 (2018).
9
under the regulation. Our decision will proceed on this interpretation of the regulation. We have
no occasion in this appeal to consider whether, given the regulation's express language, the quality
of evidence under subsection (1) differs from the quality of the evidence under subsection (2), and,
therefore, we express no views on that question.
II. THE CLASS CLAIM: DOSE ESTIMATES AND 38 C.F.R. § 3.311A. Additional Factual Background
In our December 2019 order dealing with class certification, the Court provided a detailed
history of the Palomares incident and radiation exposure, and we incorporate that history here.57
However, we will summarize that history as it relates to the matter before us. Following the
accident involving the B-52 bomber and the detonation of the two thermonuclear bombs near
Palomares, Spain, appellant, along with nearly 1,400 U.S. military personnel, assisted in the
cleanup efforts. To aid the effort to monitor possible radioactive exposure, many of those who
worked in the cleanup effort gave urine and nasal swab samples. A group of 26 service members,
including appellant, referred to as the "High 26,"were exposed to the greatest amount of radiation
and were monitored for 18 to 24 months following the cleanup for signs of radiogenic conditions.58
The Air Force discontinued these monitoring efforts in December 1967 when it determined these
service members' "health is in no jeopardy from retention of radioactive materials as a result of
participation in the [Palomares cleanup] operation."59
In evaluating disability claims based on ionizing radiation exposure, VA turns to the Air
Force for information. In April 2001, a consulting firm, Labat-Anderson, evaluated the Air Force's
dose methodology 60 and provided a report to the Air Force that established preliminary dose
estimates for various subcategories of veterans.61 The Labat-Anderson Report (LA Report or the
Report) stated that the recorded urine dose intakes for Palomares veterans "seemed unreasonably
high" compared to "environmental measurements" derived from air samples gathered 15 years
57
Skaar II, 32 Vet.App. at 167-72.
58
R. at 2124-28.
59
R. at 2430.
60
See R. at 2682-2818.
61
R. at 2691.
10
after cleanup and "estimates prepared for other plutonium exposure cases – persons residing in the
Palomares vicinity and Manhattan Project workers."62 The LA Report found that these air samples
and comparisons "provided a basis for preparing independent estimates of intake and dose using
representative scenarios" rather than actual recorded dose intakes. 63 After comparing the
"independent estimates" with the actual recorded dose intakes, the Report "excluded data from the
on-site samples and attributed more significance to samples collected at later dates for the High 26
Group."64
The LA Report noted its findings "represent preliminary estimates that cannot be
considered as definite" and "recommended further study to develop credible estimates of doses
that are compatible with those calculated from environmental data."65 Despite the caveats, the Air
Force adopted the Report's dose estimate methodology in full.66
In December 2013, the Air Force concluded that an evaluation of its radiation dose
methodology revealed "inconsistencies in dose assignment over the past 12 years" since the LA
Report.67 The Air Force found its methodology, which was based on the Report, "appeared to
underestimate doses for some individuals" and thus the Air Force intended to "formally standardize
[its] response methodology for radiation dose inquiries involving Palomares participants" by
establishing dose estimates based on each veteran's specific duties.68 The Air Force further stated
it would reevaluate individual dose estimates it had already provided Palomares veterans.69
In the course of this appeal, further information related to the dose estimates the Air Force
provides VA has become available. In February 2019, this Court issued a limited remand for the
Board to provide a supplemental statement of reasons or bases addressing the dose estimates VA
relies on for Palomares veterans.70 Appellant had the opportunity to submit more information
62
R. at 2701.
63
R. at 2691.
64
R. at 2795.
65
Id.
66
R. at 1580-81, 3508-511.
67
R. at 1580.
68
Id.
69
R. at 1581.
70
Skaar I, 31 Vet.App. at 18-20.
11
about the dose estimates to VA, which he did. Included in that information was a December 2017
report from Dr. Frank von Hippel that called into question the Air Force's reliance on the LA
Report.71 Dr. von Hippel concluded that "the Air Force's dose estimates have huge uncertainties
and the maximum doses incurred by those not in the 'High 26,' could be hundreds of times higher
than those that the Air Force has recommended to the VA for determination of benefits."72
Additionally, in August 2020, the Secretary provided the Court with a recent report from
the Air Force that, in part, responds to Dr. von Hippel's paper.73 In the report, the Air Force defends
its use of dose estimate methodologies and notes that it "provides significant benefit of doubt in
favor of veterans."74 Both the Secretary and appellant note that this recent report was not before
the Board and that the Court lacks jurisdiction to evaluate it in the first instance.75 We refer to this
submission merely to acknowledge its existence. In no way do we base our decision on this recent
report.
B. Parties' Arguments
On behalf of the class the Court certified, appellant challenges the Air Force dose estimates
based on the LA Report that VA relies on for Palomares veterans. He argues that pursuant to
38 C.F.R. § 3.311(c)(2)(ii), VA is required to rely on sound scientific and medical evidence and
that the Air Force dose estimates do not meet that standard. Thus, he asserts that VA's reliance on
those estimates is arbitrary, capricious, an abuse of discretion or not otherwise in accordance with
law, or, in the alternative, that VA's reliance on the estimates violates the Due Process Clause of
the Fifth Amendment. The Secretary counters that in relying on the Air Force's dose estimates the
Board made no clear errors of fact. He urges that we affirm the decision on appeal. Because the
Board failed to explain whether the dose estimates constituted sound evidence, we will set aside
the Board's decision and remand the matter for the Board to consider this issue and explain the
bases for its determinations.
C. Legal Background
71
R. at 2635-50.
72
R. at 2650.
73
See Secretary's Notice of Case Development (Aug. 25, 2020).
74
Id. Exhibit at 61.
75
See id. at 2; O.A. at 4:55-5:15.
12
As we noted, a veteran may seek service connection for a disability caused by exposure to
ionizing radiation by establishing the standard elements of direct service connection. But direct
service connection is not at issue here. Rather, here we consider that for a veteran with a disability
caused by exposure to ionizing radiation, two regulatory paths can lead to service connection. The
first path, provided in 38 C.F.R. § 3.309, with its focus on radiation risk activities, is not relevant
to the class claim. The second, provided in 38 C.F.R. § 3.311, applies to Palomares veterans and
is central to the claims of Mr. Skaar and the class he represents.
Specifically at issue, § 3.311(c) requires the Under Secretary for Benefits to determine
whether "sound scientific and medical evidence supports the conclusion [that] it is at least as likely
as not" that a claimant's condition is the result of ionizing radiation exposure. "[S]ound scientific
evidence" is defined as "observations, findings, or conclusions which are statistically and
epidemiologically valid, are statistically significant, are capable of replication, and withstand peer
review," and "sound medical evidence" is defined as "observations, findings, or conclusions which
are consistent with current medical knowledge and are so reasonable and logical as to serve as the
basis of management of a medical condition."76
The specific question whether a dose estimate is "sound scientific evidence" is a factual
determination that the Court reviews for clear error. 77 We may overturn the Board's factual
findings only if there is no plausible basis in the record for the Board's decision and the Court is
"'left with the definite and firm conviction'" that the Board's decision was in error.78 However, if
the Court determines that the Board failed to follow applicable regulatory provisions when making
its factual assessment about dose estimates, we will hold such a decision unlawful and set it aside
as being "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."79
Finally, the Board must include in its decision a written statement of the reasons or bases for its
findings and conclusions, adequate to enable an appellant to understand the precise basis for the
Board's decision as well as facilitate review in this Court.80
76
38 C.F.R. § 3.311(c)(3).
77
38 U.S.C. § 7261(a)(4); see Dyment v. West, 13 Vet.App. 141, 144 (1999).
78
See Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)).
79
38 U.S.C. § 7261(a)(3)(A).
80
38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
13
D. Analysis
Appellant contends that the dose estimates the Air Force provided to VA and on which VA
relied, in part, to deny service-connection claims to Mr. Skaar and the class do not constitute the
sound medical or scientific evidence that § 3.311(c) requires. He provides detailed arguments
regarding the science behind the Air Force's methodologies and the LA Report in particular. The
Court, however, is limited in considering the scientific evidence presented in this matter. First, we
have no jurisdiction to directly review what the Air Force has done to provide VA with dose
estimates because our jurisdiction is limited to the review of final Board decisions.81 We have no
authority to dictate to the Air Force how dose estimates are created and nothing we say should be
construed as doing so.
We are also constrained by our statutory duty to review what the Board has done.82 No
matter how deferential our standard of review may be, when the Board does not explain its reasons
for reaching a factual finding, the Court's ability to review anything is frustrated. As the United
States Court of Appeals for the Federal Circuit held, "[t]he Court of Appeals for Veterans Claims,
as part of its clear error review, must review the Board's weighing of the evidence. It may not
weigh any evidence itself."83
With these constraints in mind, we turn to how the Board assessed the dose estimates the
Air Force provided for Mr. Skaar. In the April 2017 decision on appeal, the Board failed to address
the methodology the Air Force used to measure appellant's radiation exposure, despite his direct
challenge concerning that issue.84 Recognizing this error, the en banc Court retained jurisdiction
and remanded the matter for the Board to address appellant's argument. 85 In the March 2019
supplemental statement of reasons or bases in response to our remand, the Board found that "on
its face" the Air Force's dose estimate constituted sound scientific evidence.86 However, the Board
also noted that it could not make an independent judgment on "matters involving scientific
81
See 38 U.S.C. § 7266(a); see also Bond v. Derwinski, 2 Vet.App. 376, 377 (1992) (per curiam order).
82
See 38 U.S.C. § 7261(a)(3).
83
Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (emphasis in original).
84
R. at 106-07, 778-83.
85
Skaar I, 31 Vet.App. at 18-20.
86
Appellee's Resp. to the Court's February 1, 2019, Order at 5 (Mar. 29, 2019).
14
expertise" and that it was "bound by regulations of the Department," which provided specific
instructions on obtaining dose estimates.87 The Board provided an inadequate statement of reasons
or bases for concluding that the Air Force's dose estimate constituted sound scientific evidence.
First, the Board's finding that the dose estimate is sound evidence "on its face" without
more detail essentially amounts to the Board saying the dose estimate is sound "because I say so."
In different contexts the Court has held that such a conclusion without reasoning is unacceptable
and does not allow for meaningful judicial review.88 Relatedly, the Board's statement of reasons
or bases for accepting the Air Force dose estimate seems internally contradictory. If the Board is
unable to make an independent judgment on such matters, then it is unclear to the Court how it
could also find the dose estimate sound "on its face."
Perhaps most critically, the Board's statement of reasons or bases on this issue is deficient
because the Board appeared to believe it was bound to accept uncritically the dose estimate the Air
Force provided. The Board commented that it was "bound by the regulations of the Department."89
That is certainly true. 90 But the relevant regulation imposes on VA the duty to base its
determinations on sound scientific evidence. At oral argument, the Secretary appeared to adopt the
Board's flawed view of its responsibility, arguing that VA is unable to change the information it
receives from the Air Force and is bound by it.91 This view is flawed because it is not consistent
with § 3.311, which, as we have noted, provides that VA is responsible for determining whether
the evidence on which it relies is sound. It may be that VA cannot change the estimate the Air
Force provides, but that does not mean it may ignore its obligation to ensure that the evidence on
which it relies is sound. After all, the dose estimate is at base nothing more than a piece of evidence
that the Board must consider in its role as factfinder. Other regulations specifically mandate that
on various matters VA is bound by findings of the Department of Defense or the service
branches.92 VA knows how to write regulations making other agencies' determinations binding on
87
Id.
88
See, e.g., Cantrell v. Shulkin, 28 Vet.App. 382, 392 (2017).
89
Appellee's Resp. to the Court's February 1, 2019, Order at 5.
90
38 U.S.C. § 7104(c).
91
O.A. at 39:24-59.
92
See 38 C.F.R. § 3.1(m) (2020) (providing that a "service department finding that injury, disease, or death occurred
in line of duty will be binding" on VA); 38 C.F.R. § 3.12(a) (2020) ("A discharge under honorable conditions is
binding on [VA] as to character of discharge."); see also Duro v. Derwinski, 2 Vet.App. 530 (1992) (holding that
15
itself. But VA did not do so in § 3.311, and VA is therefore required to do more than simply accept
the Air Force's determinations as to dose estimates.
We agree with the Board's determination that whether the dose estimate evidence before it
is sound may require scientific expertise beyond what the Board can provide independently.93 But
that does not mean that the Board may abdicate its responsibility to assess whether the evidence
before it is "sound." After all, it is the Board's responsibility, as factfinder, to determine the
credibility and weight to be given to the evidence before it.94 In fact, the definition of "sound
scientific evidence" in § 3.311(c) requires an understanding of what is statistically significant in
dose estimate testing and whether such testing is capable of replication and can withstand peer
review. And though the Court recognizes that it may not be proper for the Board to opine on such
scientific determinations, just as it may not make its own independent medical judgments,95 that
recognition does not mean that the Board can simply accept what the Air Force or any entity says
about a dose estimate. Rather, it means that the Board should seek appropriate evidence to make
its decision, just as it does with respect to medical matters. The type of expert assistance the Board
may need will depend on the facts before it, just as it does when the Board assesses medical
matters.
The problem here is that the Board did not provide any explanation beyond asserting that
it could not make an independent determination about whether the Air Force dose estimate was
sound, other than an unexplained finding that it was sound "on its face." In sum, the Board must
provide more in the way of explaining how and why it found the Air Force dose estimate sound
evidence if the Board relies on that evidence to deny appellant's claim. Because it did not do so,
remand is required.96
pursuant to 38 C.F.R. § 3.203 a service department finding as to qualifying service for VA benefits is binding on VA).
93
Cf. Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (holding that the Board "must consider only independent
medical evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board
opinion").
94
See Washington v. Nicholson, 19 Vet.App. 362, 369 (2005); Owens v. Brown, 7 Vet.App. 429, 433 (1995).
95
See Kahana v. Shinseki, 24 Vet.App. 428, 434-35 (2011); Colvin, 1 Vet.App. at 172.
96
See Stone, 14 Vet.App. at 120.
16
To guide the Board on remand,97 we underscore that if the Board without analysis simply
accepts the Air Force's determinations, the Board fails to follow an applicable regulatory provision.
Such a lack of reasoning renders a Board decision "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law."98 In determining whether agency action is arbitrary and
capricious under the Administrative Procedures Act (APA), courts look to the agency's reasoned
decisionmaking concerning the action at issue. 99 Under section 7261, our review of Board
decisions is functionally equivalent to "arbitrary and capricious" review under the APA. 100 In
Motor Vehicle Manufacturers Association of the United States v. State Farm Insurance, perhaps
the leading case on "arbitrary and capricious" review, the Supreme Court held that the National
Highway Traffic Safety Administration's (NHTSA's) rescission of crash protection requirements
was arbitrary and capricious,101 because the NHTSA had failed both to address the change fully
and to explain why it had ignored some of the research before it.102 The Court explained that "the
agency must examine the relevant data and articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice made."103
VA has "never provided a clear and coherent explanation" for relying on the Air Force dose
estimates, despite the regulatory requirement, that is, the requirement in § 3.311, that VA
determine whether the evidence on which it relies is sound.104 When reviewing a different agency
action, the Court of Appeals for the District of Columbia Circuit captured well the situation we
face: "We do not mean to suggest that the record mandates a conclusion contrary to the agency's.
Rather we simply find that [the agency] has never articulated the standards that guided its
analysis." 105 As we have said, here remand is required for the Board to provide an informed
97
See Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009).
98
38 U.S.C. § 7261(a)(3)(A) (requiring the Court to hold unlawful and set aside Board decisions that are "arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law").
99
See Motor Vehicle Mfrs. Ass'n of the U.S., Inc. v. State Farm Ins., 480 U.S. 29, 42-43 (1983).
100
See Gilbert, 1 Vet.App. at 58 (relying on the definition of "arbitrary and capricious" provided in State Farm).
101
Id.
102
Id. at 43.
103
Id. at 43 (internal quotation marks omitted).
104
See Tripoli Rocketry Ass'n v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 437F.3d 75, 81 (D.C. Cir. 2006)
(applying the "reasoned decisionmaking" standard).
105
Id.
17
analysis about whether the Air Force dose estimate is sound medical or scientific evidence
sufficient to facilitate judicial review and avoid arbitrary and capricious decisionmaking.106
We recognize that, at oral argument, the Secretary's counsel offered a detailed explanation
of the history of the Air Force dose estimate methodology.107 The Court appreciates the time and
effort counsel put into gaining an understanding the complex science at issue here and into
discussing this issue during oral argument. However, it ultimately is not his prerogative to explain
what the Board did not. As we have often said, the Secretary cannot make up for the Board's
deficient statement of reasons or bases.108
In sum, we hold that § 3.311(c) requires that VA determine whether the dose estimates
provided by the Air Force constitute sound medical and scientific evidence. Because the Board did
not provide an adequate statement of reasons or bases for its determination regarding this question,
remand is required.
Because this holding applies to the certified class, we pause for a moment to address the
our dissenting colleague's concerns with respect to certifying the class and applying our holding
as to the class members. First, our colleague disputes our jurisdiction to decide the claims of class
members and to consider information obtained as result of the Court's limited remand. The en banc
Court has addressed these matters in its class certification proceedings, and we are not at liberty to
revisit them today. Relatedly, our dissenting colleague suggests that the Court decertify the class
in light of our decision to remand Mr. Skaar's claim. Again, we are not inclined to revisit the class
certification, because neither party has asked us to do so. Furthermore, we see no change in the
circumstances that led the en banc Court to certify the class in the first place. Finally, to the extent
that our dissenting colleague raises concerns as to our applying our holding to the class, at this
stage in the litigation these concerns are premature. Our holding at this stage is unremarkable –
the decision on the class claim applies to the class. It may be that at some point this panel or another
106
See Tucker v. West, 11 Vet.App. 369, 374 (1998).
107
O.A. at 29:10-33:40.
108
See In re Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002) ("[C]ourts may not accept appellate counsel's post hoc
rationalization for agency action." (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)));
McCray v. Wilkie, 31 Vet.App. 243, 258 (2019) ("[T]he Secretary's impermissible post-hoc rationalization cannot
make up for shortcomings in the Board's assessment."); Simmons v. Wilkie, 30 Vet.App. 267, 277 (2018) (holding that
the "Court cannot accept the Secretary's post-hoc rationalizations" to cure the Board's reasons-or-bases errors); Smith
v. Nicholson, 19 Vet.App. 63, 73 (2015) ("[I]t is not the task of the Secretary to rewrite the Board's decision through
his pleadings filed in this Court.").
18
could be called on to interpret how this decision applies in another context, perhaps in connection
with an action brought to enforce our decision. On the other hand, there may never be a case in
which the Court is called on to address the issue. And though we cannot predict such a situation
will arise, we know one thing for certain: The time to consider the dissent's concerns is decidedly
not today.
III. INDIVIDUAL CLAIM: SKIN CANCER
A. Additional Factual Background
During a January 2013 VA examination, the examiner diagnosed appellant with skin
cancer.109 Appellant requested that his case be reviewed to determine whether his skin cancer was
linked to his exposure to ionizing radiation. VA obtained a dose estimate. That dose estimate found
the total probability of causation between his skin cancer and his radiation exposure to be
35.13%.110 In March 2014, the RO denied appellant's skin cancer claim.111
In a May 2014 statement, appellant requested that VA "move on with the important issues"
and noted his radiation exposure and skin cancer. 112 Based on the Air Force's revised dose
estimates, VA sought additional opinions regarding appellant's skin cancer. In a statement VA
received in August 2014, appellant generally contested the adjudication of his Palomares-related
claims and the regulations that governed that adjudication.113 He did not, however, identify any
specific disability.
In a September 2014 rating decision, VA continued to deny appellant's skin cancer claim.114
Later that same month, appellant acknowledged receipt of that rating decision but noted he had
not received the March 2014 rating decision.115
In November 2014, appellant submitted several documents to VA related to his skin cancer
claim. First, he submitted an "Application for Disability Compensation and Related Compensation
109
R. at 1645.
110
R. at 1530-35.
111
R. at 1358-79.
112
R. at 1305.
113
R. at 1252-53.
114
R. at 1180-97.
115
R. at 1153.
19
Benefits," requesting that his skin cancer claim be reopened and adjudicated based on his exposure
to Agent Orange.116 Additionally, he submitted a letter noting that his skin cancer claim was denied
in March and September 2014 and stating that he had "reopened the claim for service connected
compensation as a result of [his] exposure to Agent Orange."117 With his letter he included medical
evidence and other documents. VA construed these documents as a request to reopen the
previously denied claim for service connection for skin cancer. In a February 2015 letter, appellant
again disputed the denial of his skin cancer claim and provided a summary of the evidence he
believed warranted granting the claim.118
In an August 2015 rating decision, the RO denied reopening.119 The evidence of record
does not show, nor does appellant argue, that he appealed the August 2015 rating decision.
B. Parties' Arguments
Appellant raises several substantive arguments regarding how VA adjudicated his skin
cancer claim. First, he contends that VA's refusal to include basal cell skin cancers and melanomas
as radiation-exposure diseases under 38 C.F.R. § 3.309(d)(2) is arbitrary, capricious, an abuse of
discretion, or not otherwise in accordance with law under the APA. 120 He also asserts that VA
violated the APA by changing its skin cancer causation analysis without providing him notice. He
further argues that the Board violated its duty to assist by failing to consider all evidence of record
in denying his skin cancer claim. Recognizing that the Court may not be able to reach these
substantive arguments, appellant argues in the alternative that the Board erred in failing to consider
whether he had appealed the denial of his skin cancer claim. He points to several different
documents that he alleges could be construed as NODs challenging the March and September 2014
rating decisions that denied his skin cancer claim.121 The Secretary responds that the Court does
not have jurisdiction over this matter in any respect because the Board did not address it.
116
R. at 819-21.
117
R. at 758.
118
Supplement to the Record of Proceedings at 727.
119
R. at 178-209.
120
As we explained above, section 7261, not the APA, governs this Court's review of whether VA action was arbitrary
and capricious. However, the standard under both statutes is materially the same. In his reply brief, appellant clarified
that he raised his challenge under both the APA and section 7261. See Reply Brief at 9.
121
Reply Br. at 2-5.
20
We hold that we are unable to reach appellant's arguments on the merits because the Board
did not consider the skin cancer claim; the Board addressed only appellant's claim for service
connection for leukopenia. Our jurisdiction is limited to review of final Board decisions, and here,
there is nothing to review about skin cancer. 122 However, we conclude that appellant submitted a
valid NOD with respect to the skin cancer denial and will remand the matter for the issuance of an
SOC.
C. Legal Background
Under the regulations in effect when appellant submitted the documents he argues are
NODs, 123 VA defined an NOD as "[a] written communication from a claimant or his or her
representative expressing dissatisfaction or disagreement with an adjudicative determination by
the agency of original jurisdiction and a desire to contest the result."124 An NOD "must be in terms
which can be reasonably construed as disagreement with that determination and a desire for
appellate review," but "special wording is not required."125 As with all submissions, in determining
whether an NOD has been filed, "'VA has always been, and will continue to be, liberal in
126
determining what constitutes [an NOD].'" Thus, "[i]n determining whether a written
communication constitutes an NOD, the Court looks at both the actual wording of the
communication and the context in which it was written."127
"[A]n NOD initiates appellate review in the VA administrative adjudication process."128 If
a claimant files an NOD and no SOC is furnished in response, then the claim remains pending in
122
See 38 U.S.C. § 7252(a).
123
The Court notes that, in September 2014, VA amended § 20.201 to require the filing of an NOD on a standard
form. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660 (Sept. 25, 2014). That requirement applies "only
with respect to claims and appeals filed 180 days after the date th[e] rule [was] published in the Federal Register as a
final rule," i.e., after March 24, 2015. Id. at 57,686. This revision is not applicable here.
124
38 C.F.R. § 20.201 (2014).
125
Id.126
Palmer v. Nicholson, 21 Vet.App. 434, 437 (2007) (quoting 57 Fed. Reg. 4088, 4093 (Fed. 3, 1992)).
127
Jarvis v. West, 12 Vet.App. 559, 561 (1999).
128
Mason v. Brown, 8 Vet.App. 44, 54 (1995) (citing 38 U.S.C. § 7105); Holland v. Gober, 10 Vet.App. 433, 436
(1997).
21
appellate status.129 The Court reviews de novo whether a timely NOD has been filed.130 When
presented with evidence of a timely NOD to which the RO has not responded, the proper remedy
is for the Court to vacate the Board decision and remand the matter for the Board to address it and
order the appropriate procedural compliance.131 Thus, the Secretary's arguments regarding the
Court's lack of jurisdiction are not correct. We have jurisdiction "where the Board failed to address
a claim or matter even though a valid NOD has been filed as to an RO's adverse decision on that
claim or matter."132
D. Analysis
Our analysis turns on the November 2014 letter appellant submitted to VA, along with the
evidence he attached to it and the claim form he submitted that same month.133 Although in his
November 2014 submission appellant requested that his denied skin cancer claim be reopened and
considered in light of his exposure to Agent Orange, his submission could not constitute a request
to reopen a previously denied claim because the submission was filed within the 1-year period to
appeal the March and September 2014 denials and those denials had not yet become final.134 "[A]
claim becomes final and subject to a motion to reopen only after the period for appeal has run."135
In Jennings v. Mansfield, the appellant challenged a Board decision finding no clear and
unmistakable error in a 1954 rating decision that found a doctor's letter was not a request to
reopen.136 The Federal Circuit affirmed a decision of this Court affirming the Board because it
held that the rating decision would not have become final at the time the letter was submitted.137
The court held that "a claim becomes final and subject to a motion to reopen only after the period
129
See Tablazon v. Brown, 8 Vet.App. 359, 361 (1995).
130
See Fenderson v. West, 12 Vet.App. 119, 132 (1999); Beyrle v. Brown, 9 Vet.App. 24, 28 (1996).
131
Anderson v. Principi, 18 Vet.App. 371, 374 (2004); Manlincon v. West, 12 Vet.App. 238, 240-41 (1999);
Fenderson, 12 Vet.App. at 132; Holland, 10 Vet.App. at 36.
132
Anderson, 18 Vet.App. at 378 (Steinberg, J., concurring); see also Barringer v. Peake, 22 Vet.App. 242, 244 (2008)
(Court has jurisdiction to review whether the Board erred in failing to address a reasonably raised claim).
133
See R. at 758, 819-21.
134
38 U.S.C. § 7105(b); see Young v. Shinseki, 22 Vet.App. 461, 466-67 (2009).
135
Jennings v. Mansfield, 509 F.3d 1362, 1367-68 (Fed. Cir. 2007).
136
Id. at 1367.
137
Id. at 1368.
22
for appeal has run. Any interim submissions before finality must be considered by the VA as part
of the original claim."138 Relying on Jennings, this Court in Young held that a document received
within one year of a September 1996 rating decision could not constitute a claim to reopen because
the rating decision was not yet final.139 Because the Board and the Court on de novo review also
found the document did not constitute an NOD, appellant in that case was not entitled to an earlier
effective date based on a unadjudicated claim.140
Similarly, here, appellant's November 2014 letter was received within 1 year of the March
and September 2014 rating decisions, when neither had yet become final. Thus, at the time of the
November 2014 letter, there was no prior final decision to reopen and his submission cannot
constitute a request to reopen. Instead, the filing must be considered by VA as part of the original
claim. 141 Having determined that the November 2014 letter was improperly adjudicated as a
request to reopen, we now turn to whether it constitutes an NOD.
When we view the November 2014 letter in the context of the record as a whole, we hold
that appellant's November 2014 letter, considered with the new claim form and medical evidence
attached to the letter, qualifies as a valid NOD.142 Appellant was pro se at the time, requiring us to
sympathetically read his submissions.143 Doing so, it seems to us that he disagreed with the RO's
denial of his claim.144 In the document, he explicitly refers to the March and September 2014 rating
decisions that denied service connection for his skin cancer claim and expresses disagreement with
those decisions. Appellant does not expressly call his submission an NOD, instead requesting
reopening, but the regulation does not require any special wording.145 Furthermore, in VA's pro-
veteran, nonadversarial system, if there was a question as to what he intended to do in submitting
the letter, VA could have inquired as to his intentions.
138
Id.139
22 Vet.App. at 466.
140
Id. at 466-67.
141
Jennings, 509 F.3d at 1368.
142
See R. at 758.
143
See Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009).
144
R. at 758.
145
38 C.F.R. § 20.201.
23
Although appellant requested reopening of his skin cancer claim in the November 2014
letter, we hold that the submission could not be a request to reopen because the March and
September 2014 rating decisions had not yet become final. Because the November 2014 letter was
a written communication that expressed disagreement with the RO's denial of his skin cancer
claim, referenced the March and September 2014 rating decisions, and showed an intent to
continue to pursue benefits for his skin cancer, we further hold that the November 2014 letter
meets the applicable regulatory requirements for an NOD instead. And, because no SOC was ever
issued regarding appellant's skin cancer claim and the Board did not address the matter, the proper
remedy is to remand the matter for the Board to address it and, if needed, order the required
procedural development.146
IV. INDIVIDUAL CLAIM: RADIATION RISK ACTIVITY
A. Parties' Arguments
Finally, appellant argues that the Palomares incident should be a radiation-risk activity
recognized in 38 C.F.R. § 3.309(d) and that its exclusion is arbitrary and capricious or constitutes
a violation of due process. We have already held in the context of our class certification order that
he lacks standing to make this argument based on his leukopenia diagnosis because leukopenia is
not included as a condition presumptively caused by exposure to ionizing radiation. 147 That
decision meant appellant could not represent a class challenging § 3.309's exclusion of Palomares
as a radiation risk activity based on the denial of a benefit for a presumptive condition. It also
effectively validated the Board's conclusion that appellant was not entitled to service connection
because leukopenia was not a listed condition under § 3.309.148 But our decision on that question
left one argument from appellant unresolved because it was not relevant to the class certification
question issue the Court addressed.
Specifically, appellant contends that even though he does not have one of the conditions
under § 3.309 for which service connection based on ionizing radiation exposure is presumed, VA
146
See Anderson, 18 Vet.App. at 374; Fenderson, 12 Vet.App. at 132; Holland, 10 Vet.App. at 436; see also 38 C.F.R.
§ 19.38 (2020) ("When a case is remanded by the Board of Veterans' Appeals, the agency of original jurisdiction will
complete the additional development of the evidence or procedural development required.").
147
Skaar II, 32 Vet.App. at 173-74.
148
R. at 5.
24
still should have considered whether the Palomares cleanup was a radiation risk activity to allow
his inclusion on the Ionizing Radiation Registry (IRR). The IRR, maintained by the Veterans
Health Administration (VHA), allows access to health examinations for those who are part of the
program. Although he acknowledges that leukopenia is not a presumptive condition included in
§ 3.309, appellant asserts that he should have access to the periodic examinations under the IRR
program. The Secretary contends that the Court lacks jurisdiction over this matter because the
Board did not address it. We agree with the Secretary that this issue raises a jurisdictional
impediment and we will dismiss this aspect of the appeal.
B. Analysis
The VHA established the IRR to provide "free clinical evaluations (history, physical and
ancillary testing) and health risk communication for eligible Veterans with a history of ionizing
radiation exposure during qualifying military service."149 The IRR was also set up to maintain a
database of those exposed to ionizing radiation during military service.150 The IRR's definition of
"radiation risk activity" is the same as that provided in § 3.309, which, as we have made clear,
does not include Palomares.151 The VHA directive establishing the program notes that
[e]nrolled Veterans with health concerns related to ionizing radiation who do not
qualify as participating in "radiation at-risk activities" are encouraged to discuss
their concerns with their primary care provider who may consult or schedule an
appointment with an Environmental Health Clinician to discuss their concerns.
However, these Veterans are not eligible for inclusion in the registry database.152
In the April 2017 decision on appeal, the Board addressed service connection for
leukopenia and no other claim. The Board acknowledged that leukopenia was not a presumptive
condition and ended its discussion of § 3.309.153 Appellant makes no argument about this finding
and we see no error with it. Because appellant does not argue that he has a presumptive condition
149
VHA Directive 1301 (Apr. 6, 2017).
150
Id.
151
Id. at 1.
152
Id. at 8.
153
R. at 5.
25
under § 3.309, he makes no argument about the decision the Board actually made. So, we deem
him to have abandoned an appeal as to that decision.154
As to his IRR-exclusion argument, the Board did not address this issue, nor did appellant
or the record reasonably raise it below. Indeed, there is no evidence in the record that suggests that
appellant has ever applied to be included on the IRR or that he mentioned the issue to VA. Because
(1) participation in the Palomares cleanup is not considered a radiation-risk activity, (2)
leukopenia, the disability before the Board, is not a presumptive condition under § 3.309, and
(3) appellant was not eligible for inclusion in the IRR, the issue was not reasonably raised below.
Therefore, the Board was not obligated to address it, and the Court cannot reach this issue.155
V. APPELLANT'S RIGHTS ON REMAND
Because the Court is remanding appellant's leukopenia and skin cancer claims, on remand,
appellant may submit additional evidence and argument and has 90 days to do so from the date of
VA's postremand notice.156 The Board must consider any such additional evidence or argument
submitted.157 The Board must also proceed expeditiously.158
VI. CONCLUSION
After consideration of the parties' briefs, oral arguments, the record on appeal, and the
governing law, the Court takes the following actions concerning the class and individual claims
on appeal concerning the April 14, 2017, Board decision:
CLASS CLAIM
The Court SETS ASIDE the April 14, 2017, Board decision denying service connection
for leukopenia and REMANDS the matter for the Board to readjudicate appellant's claim under
154
See Pederson, 27 Vet.App. at 281-86.
155
See 38 U.S.C. § 7252(a) (providing this Court with "exclusive jurisdiction to review decisions of the Board of
Veterans' Appeals"); see also Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) ("[T]he court's jurisdiction is
premised on and defined by the Board's decision concerning the matter being appealed.").
156
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O'Rourke,
30 Vet.App. 92 (2018).
157
Kay v. Principi, 16 Vet.App. 529, 534 (2002).
158
38 U.S.C. §§ 5109B, 7112.
26
§ 38 C.F.R. § 3.311 in accordance with this opinion. This portion of our decision applies to the
class certified in this matter, specifically to the following:
All U.S. veterans who were present at the 1966 cleanup of plutonium dust at
Palomares, Spain, and whose application for service-connected disability
compensation based on exposure to ionizing radiation VA has denied or will deny
by relying, at least in part, on the findings of dose estimates requested under
38 C.F.R. § 3.311, except those whose claims have been denied and relevant appeal
windows of those denials have expired, or those whose claims have been denied
solely based on dose estimates obtained before 2001.
INDIVIDUAL CLAIMS
The Court SETS ASIDE the Board's April 14, 2017, decision with respect to appellant's
skin cancer claim and REMANDS the matter for further proceedings consistent with this opinion.
We DISMISS for lack of jurisdiction the Board's decision with respect to appellant's claims
concerning 38 C.F.R. § 3.309.
MEREDITH, Judge, concurring in part in the result and dissenting in part: I agree with the
majority that the April 14, 2017, decision of the Board of Veterans' Appeals (Board) denying the
appellant's disability compensation claim for leukopenia must be set aside and the matter remanded
for further adjudication and development, and I agree that the Court lacks jurisdiction to address
the appellant's arguments related to 38 C.F.R. § 3.309 based on potential inclusion in the Ionizing
Radiation Registry (IRR).159 I write separately for three reasons: First, I cannot join the majority's
analysis concerning the appellant's leukopenia claim and the scientific validity of dose estimates
obtained by VA pursuant to 38 C.F.R. § 3.311, because of the materials on which the majority
relies and the majority's treatment of the class. My position remains, as stated throughout these
proceedings, that the Court does not have jurisdiction over most of the class members and further
lacks jurisdiction to consider the nearly 3400 pages of evidence and argument submitted to the
159
Although I concur in the determination regarding the Court's lack of jurisdiction, I do not adopt the panel's
analysis or ultimate conclusion to "DISMISS for lack of jurisdiction the Board's decision with respect to appellant's
claims concerning 38 C.F.R. § 3.309." Ante at 27 (emphasis added). The Board addressed § 3.309 solely with respect
to the appellant's claim for leukopenia, finding that presumptive service connection was not warranted because
leukopenia is not a presumptive condition, Record (R.) at 5, a theory the appellant abandoned here on appeal. See
Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). The Board did not address inclusion in the IRR or a
claim for skin cancer. Because the appellant has not, in my view, established that the Board erred by not addressing
those matters, the Court lacks jurisdiction to consider his arguments. However, there is no Board decision to dismiss.
27
Board following the Court's limited remand, including any Board reference to that evidence in its
supplemental analysis and the parties' arguments based on that evidence. 160 See Henderson v.
Shinseki, 562 U.S. 428, 434-35 (2011) (reaffirming that objections to subject matter jurisdiction
may be raised at any time); see also Kontrick v. Ryan, 540 U.S. 443, 455 (2004). Moreover,
although I agree that the appellant's claim for leukopenia must be remanded, the majority states
that "[t]his portion of our decision applies to the class certified in this matter," ante at 27, without
explaining what that means in application to the class or without discussing the propriety of
continuing the class action.
Second, I must respectfully dissent from the Court's conclusion that the appellant had
submitted a valid Notice of Disagreement (NOD) with the VA regional office's (RO's) decision
denying disability benefits for skin cancer. As explained below, the appellant's arguments
concerning a pending NOD are late-raised and undeveloped and, in my view, legally incorrect.161
And, finally, I am compelled to comment that the result here demonstrates that the en banc
Court's resurrection of the limited remand mechanism, for the purpose of deciding the appellant's
motion for class certification, turned out not to be an effective tool. More than 3 years after the
appellant appealed the April 2017 Board decision, the panel is left with no choice but to conclude
that the Board provided an inadequate statement of reasons or bases for its decision and to remand
the matter for readjudication—the same relief that the en banc Court could have, and in my view,
should have initially provided. See Skaar I, 31 Vet.App. at 29-30, 32 (Pietsch, J., dissenting); see
also Skaar II, 32 Vet.App. at 217-18 (Falvey, J., dissenting); Skaar v. Wilkie (Skaar III),
No. 17-2574, 2020 WL 3564269, at *3 n.6 (July 1, 2020) (Meredith, J., dissenting). Instead, the
parties and the en banc Court expended considerable time and resources debating the efficacy of
conducting class actions in the appellate context and the bounds of the Court's jurisdiction, without
bringing the appellant any closer to receiving a decision that adequately addresses the merits of
whether the dose estimates relied on by VA are based on a methodology that complies with
38 C.F.R. § 3.311(c).
160
In this regard, I incorporate by reference Judge Pietsch's and Judge Falvey's respective dissents to the
Court's limited remand order and order certifying the class, which dissents I completely joined. See Skaar v. Wilkie
(Skaar I), 31 Vet.App. 16, 22-32 (2019) (en banc order) (Pietsch, J., dissenting); see also Skaar v. Wilkie (Skaar II),
32 Vet.App. 156, 208-25 (2019) (en banc order) (Falvey, J., dissenting).
161
In the absence of an NOD placing a skin cancer claim into appellate status and a Board decision addressing
that claim, I agree with the majority's conclusion that the Court cannot address the merits of any of the appellant's
substantive arguments related to skin cancer and § 3.309. See ante at 21.
28
I. LEUKOPENIA CLAIM: VALIDITY OF DOSE ESTIMATES PURSUANT TO
38 C.F.R. § 3.311It is well settled that the Board is required to consider all theories of entitlement to VA
benefits that are either raised by the claimant or reasonably raised by the record. Robinson v. Peake,
21 Vet.App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
For that reason, I fully concur in the majority's decision to set aside the Board's April 2017
decision; the Board, at that time, did not address the appellant's 38 C.F.R. § 3.311 arguments. See
R. at 1-12, 106-07, 778-83. I, however, would draw that conclusion based solely on the content of
the April 2017 Board decision, the evidence and arguments then before the Agency, and the
contentions raised in the appellant's initial briefing to the Court.162
As for proceedings since that time, for the reasons stated more fully by Judge Pietsch in
her dissent to the Court's limited remand order, see Skaar I, 31 Vet.App. at 30-32 (Pietsch, J.,
dissenting), I continue to believe that the Court exceeded the bounds of its jurisdiction by
remanding the matter to the Board to address the scientific validity of the methods applied in
arriving at a dose estimate and by permitting the appellant to submit additional evidence and
argument, yet constraining the broad discretion ordinarily afforded to the Secretary in developing
a claim. See Douglas v. Shinseki, 23 Vet.App. 19, 22-23 (2009) (discussing the statutory and
regulatory provisions supporting the Secretary's broad authority to develop a claim); Shoffner v.
Principi, 16 Vet.App. 208, 213 (2002) (stating that 38 C.F.R. § 3.304(c) provides the Secretary
"the discretion to determine how much development is necessary for a determination of service
connection to be made"); 38 C.F.R. § 3.304(c) (2020) ("The development of evidence in
connection with claims for service connection will be accomplished when deemed necessary."
(emphasis added)). And, regardless of the propriety of the scope of the limited remand, "[b]ecause
the [Notice of Appeal] triggering our jurisdiction relates only to the April 2017 Board decision,"
our review remains constrained by statute to the 2017 Board decision and the materials then before
the Board. Skaar I, 31 Vet.App. at 31 (Pietsch, J., dissenting); see Skaar II, 32 Vet.App. at 216-17
(Falvey, J., dissenting).
162
For the reasons stated in my dissent to the panel's order denying the Secretary's motions to strike the
attachments and related arguments to the appellant's briefs, my review would be limited to those arguments that do
not rely on the documents attached to his briefs. See Skaar III, 2020 WL 3564269, at *3-8 (Meredith, J., dissenting).
29
Further, even assuming that the Court has jurisdiction to review the Board's supplemental
statement of reasons or bases and the evidence added to the record following the Court's limited
remand, the Board's supplemental analysis demonstrates that the Court's limited remand did not
allow for meaningful review of the appellant's challenges to the methodologies employed by the
Air Force and the dose estimates relied on by VA in adjudicating his claim. In this regard, it is
noteworthy that the majority faults the Board for finding, "on its face," that the June 2014 dose
estimate "is based on sound scientific evidence," Board Mar. 26, 2019, Supplemental Statement at
5, but agrees at the same time "with the Board's determination that whether the dose estimate
evidence before it is sound may require scientific expertise beyond what the Board can provide
independently." Ante at 16.
I do not disagree that scientific expertise may be required to adequately address the
appellant's arguments and evidence, including the Labat-Anderson report and Dr. Frank von
Hippel's December 2017 opinion regarding that report and the Air Force's radiation dose estimates.
Cf. Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) (finding that the Board is prohibited from
"provid[ing] [its] own medical judgment in the guise of a Board opinion"), overruled on other
grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); 38 C.F.R. § 3.311(a)(3) (2020)
(requiring VA to obtain an independent expert radiation dose estimate "[w]hen necessary to
reconcile a material difference between an estimate of dose, from a credible source, submitted by
or on behalf of a claimant, and dose data derived from official military records"). But, by retaining
jurisdiction, the en banc Court, in its limited remand, prevented the Board from developing the
evidence the panel now agrees may be necessary to adjudicate the scientific validity of the disputed
dose estimates. See Skaar I, 31 Vet.App. at 19 (remanding the case "solely for the Board to provide
a supplemental statement of reasons or bases" and ordering that, "regardless of the outcome of the
Board's determination on remand, the Board shall not take any further action beyond the
response required by this order unless and until the Court relinquishes jurisdiction over the matter"
(bold emphasis added)). Indeed, the Board recognized these restrictions on its jurisdiction,163 and
163
The Board stated in relevant part:
[A]t no time prior to the Board's April 2017 decision did the appellant offer his own independent
dose estimate. Such a report would have been considered by the Board, and the Board would have
been required to determine its probative value in making a decision. Without an independent dose
estimate, and without a rational basis to reject the competent findings of the Air Force which were
30
the effect of those restrictions were not lost on the parties. See Appellant's Response to the Court's
Feb. 1, 2019, Order at 1-2 (asserting that the Board ignored 3390 pages of evidence submitted on
limited remand); Secretary's Response to the Court's Feb. 1, 2019, Order at 7-9 (arguing that the
Board lacks authority to render decisions requiring specialized expertise and that the Board was
precluded from obtaining any additional evidence interpreting the highly technical Labat-
Anderson report). Thus, I would not, under the unusual circumstances of this case, conclude that
the Board "abdicate[d] its responsibility to assess whether the evidence before it is 'sound.'" Ante
at 16.
The remand ordered today, including the Court's relinquishment of jurisdiction, affords the
appellant the relief he should have received initially and the Board the opportunity to obtain and
consider all the evidence deemed necessary to decide the claim. I would expect, after the protracted
nature of these proceedings, that the Secretary will fulfill his statutory obligation to proceed
expeditiously, fully consider the post-April 2017 evidence and argument added to the record, and
develop evidence, as necessary, to fully and fairly adjudicate the appellant's § 3.311 claim.164
relied on by various VA personnel, the Board could not find that the lay opinions offered by the
appellant prior to the April 2017 decision outweigh the opinions offered by experts in the field.
Board Mar. 26, 2019, Supplemental Statement at 5. And, regarding the arguments submitted following the Court's
limited remand, the Board concluded as follows:
[W]hile the appellant has since raised numerous challenges to the methodology used, in evaluating
the evidence the Board is limited to the evidence that is available to it at the time a decision is
rendered. While the appellant's October 2014 and September 2016 letters raised challenges to the
dose estimate there was no evidence that the claimant has any expertise in the field of preparing
dose estimates, or that he had access to the evidence considered by the United States Air Force when
they offered their revised opinion in June 2014. As such, in April 2017 the Board had no
evidentiary basis to reject the opinion offered by the Air Force.
Id. (bold emphasis added).
164
As to whether § 3.311(c)(1)(i)'s requirement that VA rely on "sound scientific and medical evidence"
applies equally to subsection (c)(2), the majority seems to provide conflicting statements regarding the scope of its
opinion. On the one hand, the majority states that the requirement applies to both subsections and that "[t]o hold
otherwise would mean that the standard for granting a claim based on exposure to ionizing radiation is different than
the standard for denying a claim." Ante at 9. On the other hand, the majority states as follows: "We have no occasion
in this appeal to consider whether, given the regulation's express language, the quality of evidence under subsection
(1) differs from the quality of the evidence under subsection (2), and, therefore, we express no views on that question."
Ante at 10. In either case, the majority's discussion in this regard appears to be dicta because the discussion is
unnecessary to its decision, which sets aside the Board's decision based on an inadequate statement of reasons or bases.
31
II. CLASS CLAIM: REMEDY
Next, although I agree that the April 14, 2017, Board decision denying disability
compensation for leukopenia must be set aside and the appellant's individual claim remanded for
readjudication, I cannot join the majority's conclusion that "[t]his portion of our decision applies
to the class certified in this matter." Ante at 27. To begin, the majority provides no context for its
declaration and, considering that this is the first time that the Court has certified a class in an
individual appeal of a Board decision, some explanation is required. Further, although my position
remains, as stated by Judge Falvey in his dissent to the class certification order, see Skaar II,
32 Vet.App. at 210-15, that the en banc majority exceeded our jurisdiction when it certified a class
to include veterans who have not yet filed a claim and veterans who have filed claims that remain
pending before VA at any level—the so-called "Future-Future claimants" and "Present-Future
claimants"—we are now left to surmise how the Court's decision today will affect the certified
class. For example, given that the class issue has not yet been resolved and the Court is not
retaining jurisdiction, who will have jurisdiction over the class after mandate issues? Is it possible
for the class to be "pending" before VA? Would the class travel with the appellant's claim to the
Board and, if additional development is required, to the RO? And, what effect would that have on
the status of any class members' pending claims, or the Agency's ability to process a new claim?
Are the class members in limbo until the Agency adjudicates, on a fully developed record, the
appellant's challenges to the dose estimates relied on by VA?
Under the circumstances, I would suggest that the Court instead, pursuant to its duty to
monitor its class decision, sua sponte consider the continued propriety of maintaining the class
action. See Amara v. CIGNA Corp., 775 F.3d 510, 520 (2d Cir. 2014) (noting that Rule 23 of the
Federal Rules of Civil Procedure "requires courts to 'reassess . . . class rulings as the case develops,'
and to ensure continued compliance with Rule 23's requirements" (citation omitted)); Kingery
v. Quicken Loans, Inc., 2014 U.S. Dist. LEXIS 75811, at *2 (S.D. W. Va. June 4, 2014) ("Even
after the court has certified a class, it 'is duty bound to monitor its class decision and, where
certification proves improvident, to decertify, subclassify, alter, or otherwise amend its class
certification.'" (quoting Chisolm v. TranSouth Fin. Corp., 194 F.R.D. 538, 544 (E.D. Va. 2000))).
As stated by the en banc majority in its class certification order, "[t]he class seeks a single class-
wide injunction ordering VA to comply with the provisions of § 3.311." Skaar II, 32 Vet.App. at
194. But that is not the decision that the Court reaches today. Compare ante at 13-18, 26-27, with
32
Skaar II, 32 Vet.App at 194 (stating that, "if the class succeeds on the merits, 'injunctive relief or
corresponding declaratory relief'—in the form of an order from this Court to the Secretary that he
comply with the provisions of § 3.311—'is appropriate respecting the class as a whole'" (quoting
FED. R. CIV. P. 23 (b)(2))). Rather, the Board's inadequate statement of reasons or bases frustrates
judicial review, precluding our ability to provide the requested class-wide relief and compelling
us to remand the matter for full readjudication without retaining jurisdiction. And, we have no
reason to assume that further adjudication of the appellant's claim will lead to a final Board
decision adverse to the appellant or subsequent appellate review of the class issue for which he is
the representative. How, then, would the substantive issue be resolved for the class members?
Further, in certifying the class, the en banc majority recognized that "class actions before
this Court are the exception, not the rule," and laid out a nonexhaustive set of factors for
consideration on a case-by-case basis. Skaar II, 32 Vet.App. at 196; see id. at 194-99. Although
no one factor was identified as determinative, it is noteworthy that a factor found to weigh in favor
of certification was the purported completeness of the record. Id. at 199. Specifically, the en banc
majority emphasized that (1) the appellant and the class submitted scientific evidence challenging
the validity of the Air Force's dose estimates, (2) the Court is "equipped with the Board's
supplemental statement addressing [the appellant's] challenge to VA's adherence to § 3.311," and
(3) the Court "require[s] no additional information to decide the class challenge on the merits." Id.
As set forth above, the panel now reaches an appropriate but opposite conclusion. We lack
sufficient factfinding by the Board and, as alluded to by the majority and the Board, additional
expert scientific evidence may be required to adequately address the appellant's arguments. See
ante at 16 (agreeing that it may not be proper for the Board to make scientific determinations and
suggesting that the Board seek appropriate expert evidence to render an informed decision);
Mar. 26, 2019, Supplemental Statement at 5. But see Skaar II, 32 Vet.App. at 199 (recognizing
that class certification "could prove impractical" if the Court required a significant amount of
additional information).
In sum, although some of my colleagues previously considered the class action device a
superior method for litigating the class claim, it has become even more apparent now that the
statutory limits on our appellate jurisdiction, our lack of factfinding abilities, and an incomplete
record render class treatment of this issue at best impractical and raise a spectrum of jurisdictional,
procedural, and substantive complications. The Court should decertify the class.
33
III. SKIN CANCER
As for the appellant's claim for skin cancer, the majority on de novo review concludes that
he filed a timely NOD with the RO's March 2014 denial and remands the matter for issuance of a
Statement of the Case. I disagree both with the substance of the decision as well as the majority's
implicit acceptance of the appellant's failure to comply the Court's Rules of Practice and Procedure
and willingness to address this late-raised argument.
In that regard, I would stress that the represented appellant did not raise this argument in
his opening brief.165 But see U.S. VET. APP. R. 28(a)(5). Rather, he first raised this issue of an
unaddressed NOD in response to the Secretary's motion to strike his brief, in which the Secretary
asserted in part that, because the Board adjudicated only a claim for leukopenia and the appellant
failed to explain in his opening brief the basis for the Court's jurisdiction over a claim for skin
cancer, the Court should not consider his arguments relating to skin cancer. See Secretary's
Apr. 18, 2018, Motion To Strike at 1-2. Further, in his opposition, the appellant argued only that
the Court has jurisdiction over the claim because May 16 and June 23, 2014, letters were sufficient
to constitute an NOD, and the Board implicitly denied the claim. See Appellant's May 14, 2018,
Opposition to Motion To Strike at 1-2. Not until he filed his reply brief, after the Secretary's limited
opportunity to argue why the Court lacks jurisdiction over the skin cancer claim, did he point to
several letters in the record—including the November 2014 letter, which the majority now deems
a valid NOD. Compare Secretary's Br. at 13-14 (asserting that "[n]owhere in his [opening] brief
does [a]ppellant identify any documents in the record" initiating an appeal as to skin cancer and,
in support of his argument that the Court lacks jurisdiction, noting that, in November 2014
correspondence, the appellant informed VA that his "'intention and desire was to have [skin cancer]
considered within the parameters of exposure to Agent Orange, not radiation'" (emphasis added)
(quoting R. at 758)), with Reply Br. at 3-4 (referencing six letters from May 2014 through February
2015 as potential NODs). And, with regard to the November 2014 letter, the appellant's entire
argument is as follows: "Mr. Skaar sent a letter on November 20, 2014[,] disagreeing with the
denial of his skin cancer claim and asking that the VA reconsider it." Reply Br. at 4. He does not
165
To be clear, the appellant raised arguments in his opening brief with regard to the merits of his skin cancer
claim; he did not, however, explain how the Court would have jurisdiction to address the merits of a claim not
adjudicated in the Board decision on appeal or request remand on procedural grounds. Appellant's Brief (Br.) at 9-16,
25-30 (in part requesting that the Court direct VA to grant disability benefits for skin cancer).
34
explicitly discuss the actual wording of that letter, clarify the context in which it was written, or
otherwise explain why it meets the requirements of an NOD. See id.
Unlike other cases in which the Court has exercised its discretion to hear late-raised
arguments, see, e.g., Crumlich v. Wilkie, 31 Vet.App. 194, 202 (2019) (addressing a late-raised
argument where "the Court was presented with a compelling allegation that the regulation VA
ask[ed the Court] to apply conflict[ed] with the appellant's statutory rights and the Secretary's
concessions appeared to confirm that allegation," and the Court thereafter obtained a written
response from the Secretary), the circumstances of this case do not warrant similar treatment.166
See Wait v. Wilkie, 33 Vet.App. 8, 19 (2020) (declining to address matters first raised during the
rebuttal portion of oral argument); see also Carbino v. Gober, 10 Vet.App. 507, 511 (1997)
(declining to review an argument first raised in the appellant's reply brief), aff'd sub nom. Carbino
v. West, 168 F.3d 32, 34 (Fed. Cir. 1999) ("[I]mproper or late presentation of an issue or argument
. . . ordinarily should not be considered.").
However, even assuming that consideration of this issue is warranted, I cannot agree that
the appellant's November 2014 correspondence constitutes an NOD. See ante at 22-24. The
majority holds that "[w]hen we view the November 2014 letter in the context of the record as a
whole, . . . [the] appellant's November 2014 letter, considered with the new claim form and medical
evidence attached to the letter, qualifies as a valid NOD." Ante at 23. The majority states that the
letter "explicitly refers to the March and September 2014 rating decisions, . . . expresses
disagreement with those decisions[, and] . . . . showed an intent to continue to pursue benefits for
his skin cancer." Ante at 23-24. Yet, neither the appellant nor the majority identify which language
in the letter "can be reasonably construed as disagreement with [the rating decisions] and a desire
for appellate review." 38 C.F.R. § 20.201 (2014); see ante at 23-24; Reply Br. at 4.
Further, in my view, even liberally construing the letter, when read in context, it reflects
that the appellant did not express a desire for appellate review. Rather, after noting that his claim
for skin cancer "began a long journey through the VA process," the appellant provided the
following clarification regarding his intent:
166
In this regard, I would note that declining to address this issue is consistent with decades of caselaw from
our Court and higher courts and would not leave the appellant without an available remedy. See Evans v. Shinseki,
25 Vet.App. 7, 18 (2011) (citing DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006), aff'd sub nom. Dicarlo v. Peake,
280 F. App'x 988 (Fed. Cir. 2008)) (concluding that it was not apparent from the record whether the appellant filed an
NOD concerning claims not decided by the Board, but that the appellant remained free to raise the issue to VA).
35
I received a phone call from a live person at the Muskogee [o]ffice informing me
that my claim was being forwarded to the Jackson, M[ississippi] Regional Center
as they process all radiation-related claims. My intention and desire was to have
that disease considered within the parameters of exposure to Agent Orange, not
radiation.
The skin cancers were both denied on [March 27, 2014,] and again on
September []4, 2014, as not having been caused as a result of documented exposure
to RADIATION.
Therefore[,] I have reopened the claim for service[-]connected compensation as a
result of my exposure to Agent Orange.
R. at 758 (italics and bold emphasis added).
The foregoing demonstrates that, to the extent that the appellant expressed disagreement
with the rating decisions, his disagreement centered on the RO's adjudication of the wrong theory
of entitlement. Instead of seeking appellate review of the RO's denial, the appellant unequivocally
twice expressed his desire and intent to pursue benefits for skin cancer based on an alternative
theory—exposure to Agent Orange. See Jarvis v. West, 12 Vet.App. 559, 561 (1999) ("In
determining whether a written communication constitutes an NOD, the Court looks at both the
actual wording of the communication and the context in which it was written.").
Finally, because the appellant's arguments regarding the remaining letters are undeveloped,
see Reply Br. at 3-5, I would conclude that he has not shown that the Board possessed jurisdiction
over his claim for skin cancer. And, where the Board lacks jurisdiction, so does this Court. See
Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998) (holding that "the court's jurisdiction is
premised on and defined by the Board's decision concerning the matter being appealed"); see also
Tyrues v. Shinseki, 23 Vet.App. 166, 178 (2009) (en banc) ("[T]his Court's jurisdiction is
controlled by whether the Board issued a 'final decision'—i.e., denied relief by either denying a
claim or a specific theory in support of a claim and provided the claimant with notice of appellate
rights."), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated, 565 U.S. 802 (2011), reinstated as
modified, 26 Vet.App. 31 (2012) (en banc) (per curiam order), aff'd, 732 F.3d 1351 (Fed. Cir.
2013); cf. Manlincon v. West, 12 Vet.App. 238, 240-41 (1999) (exercising jurisdiction and
concluding that, because the appellant had filed an NOD, the Board erred by referring a matter to
the RO rather than remanding for issuance of an SOC).
36
IV. CONCLUSION
For these reasons, I concur in the result with respect to the appellant's individual claim for
leukopenia under § 3.311. I further agree with the majority's conclusions that the Court lacks
jurisdiction to address the appellant's substantive arguments concerning skin cancer, the IRR, and
§ 3.309. I respectfully dissent from the remainder of the Court's opinion, including its application
of the remedy to the class.
37