Cook: ADDITIONAL BOARD HEARING FOLLOWING COURT REMAND
/Cook v. Snyder, docket no. 15-0873 (Jan. 31, 2017)
HELD: Under 38 U.S.C. § 7107(b), “a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings in entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim.”
SUMMARY: Mr. Cook was denied service connection for a back condition in 2000. He did not appeal that decision and it became final. In 2006, he filed a request to reopen his claim. The Regional Office (RO) denied the request, determining that he had not submitted new and material evidence that would warrant reopening. He appealed to the Board and testified at a hearing in 2012. The Board determined that new and material had been submitted to reopen the claim, and remanded the issue back to the RO, along with the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The RO continued to deny the claim, and Mr. Cook requested a Board hearing so that he could submit additional evidence. In 2014, the Board acknowledged Mr. Cook’s request for a hearing, but denied the request because he had already been afforded one.
Mr. Cook appealed to the CAVC and the parties entered into a joint motion for remand (JMR) based on the Board’s failure to address favorable a private medical opinion. In November 2014, Mr. Cook again requested a Board hearing so that he could submit additional evidence. In February 2015, the Board denied service connection and TDIU. The Board again acknowledged his hearing request, but stated that the pertinent regulation provides for “a” hearing on appeal, and he already was afforded a hearing.
On appeal to the CAVC, Mr. Cook argued that because he had a protected property interest in obtaining VA benefits, the Board’s denial of a hearing following a remand violated his constitutional due process right to be heard. The Court ordered the parties to submit supplemental memoranda of law regarding any regulatory or non-constitutional authority that addressed a claimant’s right to more than one hearing. Mr. Cook argued that VA’s regulations do not expressly limit a veteran’s right to multiple hearings, specifically asserting that the “indefinite article ‘a’ in [38 C.F.R.] § 20.700(a) does not limit a claimant to one hearing.”
The Secretary argued that neither the statute (38 U.S.C. § 7107) nor the regulation provides for a Board hearing in this situation, asserting that “the indefinite article ‘a’ usually connotes the singular.” He noted that other regulations provide for new hearings “only in certain circumstances not implicated here.” He asserted that even if the statutory and regulatory language were ambiguous, the Court should defer to his interpretation, adding that there are currently thousands of pending Board hearings and allowing for multiple hearings in situations like these “would intolerably burden the system and violate the general rule that agencies are entitled to discretion in implementing their own procedures.”
The Court first discussed the history of 38 U.S.C. § 7107 and explained the importance of hearings in the VA adjudication process. The Court next considered the statutory language (“The Board shall decide any appeal only after affording the appellant an opportunity for a hearing”) and found that it was ambiguous because it did not “specify that a claimant is limited to one Board hearing irrespective of the number or remands he or she is granted nor does it unambiguously specify that a claimant is entitled to a Board hearing upon request each time a remand is granted.”
The Court did not defer to the Secretary’s interpretation because it found that no VA regulation “resolves the ambiguity in the statute” and because VA’s regulation, 38 C.F.R. § 20.700(a), was promulgated before the statute was enacted. The Court noted that “the statute was enacted to codify the regulatory hearing rights before the Board.” (Emphasis in original.) Therefore, this regulation “cannot possibly have been promulgated to interpret it.” The Court concluded that the Secretary’s interpretation was not persuasive and held that “a VA claimant who has had a Board hearing during one stage in the appellate proceedings is not barred from receiving a Board hearing when the claim is at a different stage in the proceedings, namely, following a remand from this Court.”
The Court further analyzed the statutory language under a less deferential standard, focusing on “its context and with a view to its place in the statutory scheme.” The Court noted that “the VA adjudicatory process ‘is designed to function throughout with a high degree of informality and solicitude for the claimant’” and found that “[r]eading section 7107(b) as barring a claimant who has previously testified at a Board hearing from receiving a Board hearing during a subsequent stage of appellate proceedings – particularly following a remand from this Court – would be neither solicitous of a claimant nor productive of informed Board decisionmaking.”
The Court pointed out that the appellate issue(s) “may change or evolve as a claim wends its way through the VA claims and appeals process” – which is precisely what happened in Mr. Cook’s case. The issue on appeal at the time of his Board hearing was whether new and material evidence had been submitted to reopen his claim. By the time he requested the additional hearing in 2014, the issue had changed to whether the new and material evidence was sufficient to establish entitlement to service connection for a back condition. The Court reiterated its holding as properly interpreting section 7107(b) to allow “a VA claimant the right to request and receive a Board hearing for the purpose of submitting additional evidence after a remand from the Court, even if he or she previously received a hearing before the Board at another stage of appellate proceedings.”
The Court added that “this case implicates the presumption announced in Brown v. Gardner, 513 U.S. 115, 118 (1994), that any doubt in the interpretation of a VA statute must be resolved in favor of a veteran,” and noted that “even where the Secretary’s asserted interpretation is ‘plausible,’ adopting an interpretation that is less favorable to the veteran would be appropriate ‘only if the statutory language unambiguously’ required that less favorable interpretation.” The Court found that the Secretary’s interpretation was not required by the statutory language and was less favorable to the veteran.
Finally, the Court addressed the Secretary’s concerns regarding the burden these additional hearings would impose on VA. The Court stated that it “is not adopting the veteran’s reading of the statute, that he is entitled to a Board hearing at any time on any issue for any reason.” Rather, the Court again reiterated its holding that “a claimant who received a personal hearing at one stage of appellate proceedings before the Board is not barred from requesting and receiving a Board hearing during a separate stage of appellate proceedings before the Board, namely, following a remand from this Court.” The Court added that it “is not convinced that its holding will lead to a wave of requests for additional Board hearings,” noting that a claimant will weigh the right to request an additional Board hearing against the inherent delay in issuing a decision that will be caused by the request.
The Court added that if the Secretary disagrees with the Court, he is free to promulgate a new regulation that resolves the statutory ambiguity. The Court restated its holding again, “under section 7107(b), a claimant who received a personal hearing before the Board at an earlier stage of appellate proceedings is entitled to receive, upon request, a Board hearing following this Court’s remand of the same claim."
Advocacy note: The Court restated the holding of this case at least four times. Read together, the criteria for obtaining an additional Board hearing require that the claimant must (1) request the hearing in writing (2) at a subsequent stage of proceedings (3) following a Court remand of the same claim (4) for the purpose of submitting additional evidence.
