REASONS OR BASES; COMPLIANCE WITH PRIOR REMAND

Mathews v. McDonald, docket no. 15-1787 (Oct. 14, 2016)

HELD: The Board cannot “sub silentio incorporate its reasons or bases from a prior remand order into a later decision”; the Board must “provide or reiterate reasons or bases for unfavorable findings made in prior remand orders – assuming those reasons or bases still apply, given that new evidence or argument may have been submitted in the interim . . . – so that they become part of a final Board decision and subject to appellate review.”

SUMMARY: Mr. Mathews served in the U.S. Navy from 1966 to 1970, including combat service in Vietnam. In 2002, he was treated for a neck “lesion” that was subsequently the subject of various diagnoses, including metastatic carcinoma and melanoma, among others. Two private physicians stated that this condition “could be” related to his exposure to Agent Orange. In June 2003, he filed a claim for “neck cancer.” The RO denied because the evidence did not show that he had a type of cancer on VA’s presumptive list. He appealed the denial, and submitted additional evidence regarding his various diagnoses. In 2004, he appealed to the Board.

In 2007, following a hearing, the Board remanded his appeal, and directed the Appeals Management Center to have his claims file and a tissue sample reviewed by a “panel of three oncologists” who could provide “consensus answers” to the complicated medical questions of the case.

The AMC was unable to find a panel of three oncologists, but was apparently able to have the Board’s remand order “amended” so that they could obtain an opinion by one oncologist. A private physician from the El Paso Cancer Treatment Center provided a negative nexus opinion and the AMC continued its denial in a Supplemental Statement of the Case (SSOC).

In December 2011, the Board remanded again because VA had not obtained authorization to release a tissue sample and because the medical opinion was inadequate. In this remand order, the Board determined that Mr. Mathews was “not prejudiced” by having a medical opinion provided by only one oncologist, instead of three, because the oncologist was qualified to provide the opinion.

In 2013, VA obtained a new negative medical opinion from a registered nurse. Mr. Mathews challenged the adequacy of this opinion, and the Board remanded this appeal for a third time.

In January 2014, a VA staff physician in the hematology/oncology section provided a negative medical opinion. In June 2014, the Board remanded for a fourth time for an addendum opinion, which was provided the following October. The AMC continued the denial in yet another SSOC.

In January 2015, the Board issued the decision on appeal, finding that the AMC had substantially complied with its prior remand orders and continued to deny service connection.

On appeal to the Court, Mr. Mathews argued that the Board provided an inadequate explanation for its determination that the AMC had substantially complied with its prior remand order because the Board did not explain why an opinion from a panel of three oncologists was no longer needed. The Secretary argued that the Board was not required to address that question in the recent decision because it had explained in its December 2011 remand order that there was no prejudice to the veteran by having an opinion provided by only one oncologist. Mr. Mathews argued that “there is no legal authority that permits the Board to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.” The Court agree with Mr. Mathews, noting that “[m]ore than nine years and three Board remands later, VA has still not obtained the ordered opinion from a three-oncologist panel, and the Board in its most recent decision did not explain why such an opinion was no longer necessary.”

Without an explanation from the Board, the Court found that it could not “discern the precise basis for the Board’s finding that the AMC had substantially complied with the May 2007 remand order,” and thus held that “the Board is not permitted to sub silentio incorporate its reasons or bases from a prior remand order into a later decision.”

To support this decision, the Court noted that “all of the Board’s findings in the non-final remand orders are insulated from judicial review because remand orders are not appealable to this Court.” The Court added that it has never stated that “findings in Board remand orders that are unfavorable to the appellant are final and binding,” emphasizing that such a conclusion “would be antithetical to the pro-claimant veterans benefits system.” The Court reiterated that the Board must “provide or reiterate reasons or bases for unfavorable findings made in prior remand orders – assuming those reasons or bases still apply, given that new evidence or argument may have been submitted in the interim . . . – so that they become part of a final Board decision and subject to appellate review.”

The Court further determined that the Board’s reasons-or-bases error in this case prejudiced the appellant because “it must be presumed that the Board in May 2007 determined that, due to the medical complexity of the issues involved, a medical opinion from a panel of three competent oncologists was required to decide the claim.” Because the Board did not explain how “having one competent oncologist assess the veteran’s tumor could satisfy the Board’s May 2007 remand” that called for a “consensus” on the issue by three competent oncologists, the Court found that the Board’s error was not harmless. The Court remanded for further development, if necessary, and readjudication.

FULL DECISION