ISSUE EXHAUSTION CANNOT BAR CITATION TO EVIDENCE THAT SUPPORTS LEGAL ARGUMENT

Bozeman v. McDonald, 814 F.3d 1354 (Fed. Cir. Mar. 1, 2016)

HELD: “[I]ssue exhaustion cannot be invoked to bar citation of record evidence in support of a legal argument that has been properly preserved for appeal."

SUMMARY: On appeal to the Veterans Court, the claimant argued that the Board failed to address relevant evidence. The Court refused to address this argument on the grounds of "issue exhaustion." The Federal Circuit found that citation to new evidence in the record is not “a new legal argument for purposes of issue exhaustion,” and held that the CAVC’s refusal to address the claimant’s argument was an improper expansion of the legal definition of issue exhaustion. 

FULL DECISION