Skaar: Limited remand; class action certification

Skaar v. Wilkie, 31 Vet.App. 16 (Feb. 1, 2019)

HELD: Court can retain jurisdiction over appeal and issue a limited remand for the Board to address an argument that the appellant had expressly raised below.

SUMMARY: Victor Skaar was denied service connection for leukemia, to include as due to radiation exposure. He appealed to the Court and filed a motion to certify a class of veterans “who were present at the 1966 cleanup of plutonium dust at Palomares, Spain,” and whose claims for service connection based on radiation exposure had been denied. 

At the Board, Mr. Skaar challenged the way VA measures radiation exposure under 38 C.F.R. § 3.311, but the Board never addressed this argument. The Court issued a limited remand, directing the Board to address this expressly raised argument, citing Brannon v. West, 12 Vet.App. 32, 35 (1998); Urban v. Principi, 18 Vet.App. 143, 145 (2004); and Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (all holding that “the Board is required to consider all issues raised either by the claimant or by the evidence of record”).

In its limited remand order, the Court allowed Mr. Skaar 90 days to provide the Board with any additional argument or evidence and directed the Board to provide a supplemental statement of reasons or bases within 30 days after the evidence-submission period. The Court stated that “[s]oliciting a supplemental response from the Board, without vacating the decision on appeal, for the discrete purpose of evaluating a class certification motion arising from that appeal – an issue of first impression at the Court – is undoubtedly a unique circumstance” that made it appropriate for the Court to retain jurisdiction over the appeal.

Judge Davis issued a concurring opinion, recommending that the Court expressly overrule Cleary v. Brown, 8 Vet.App. 305 (1995), and broaden the use of limited remands as a necessary tool in support of its remand authority.

Judge Schoelen issued a concurring opinion expressing concern with the majority’s “unacknowledged overruling” of Cleary, and suggesting boundaries for limited remands in cases where the Court retains jurisdiction.