ISSUE EXHAUSTION, DUTY TO ASSIST

Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. Mar. 1, 2016)

HELD: The CAVC’s decision to not consider an appellant’s duty-to-assist argument that had not been raised to the Board was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” and was supported by the principles of issue exhaustion. 

SUMMARY: The appellant in this case raised a duty-to-assist argument for the first time to the Veterans Court, even though she had the opportunity to raise that argument in earlier proceedings - including in a 2012 joint motion for partial remand. The Federal Circuit affirmed the Veterans Court's invocation of issue exhaustion in its decision to not hear the argument. 

FULL DECISION