Bozeman: 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

Dickens: 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