Opinions / Panel Activity

This week, the Federal Circuit issued its opinion in Euzebio v. McDonough, a veterans case we have been following because it attracted two amicus briefs. Judge Wallach authored a unanimous panel opinion reversing and remanding a decision by the Court of Appeals for Veterans Claims that certain materials were not constructively before the Board of Veterans’ Appeals. This is our opinion summary.

In this case, Euzebio argued that the Board was required to consider relevant evidence in the Veterans and Agent Orange: Update 2014 (NAS Update 2014) and that the Board’s knowledge of the evidence meant that it was constructively before the Board in this case. The government argued that the Veterans Court was correct in finding that the NAS Update 2014 was not before the Board for purposes of this case.

As mentioned, Judge Wallach authored a unanimous opinion, joined by Judges O’Malley and Taranto, reversing the Veterans Court and remanding the case back to it.

Judge Wallach summarized the relevant background:

[I]n the Agent Orange Act, Congress directed the VA to “seek to enter into an agreement with [the NAS],” . . . “an independent nonprofit scientific organization with appropriate expertise which is not part of the . . . Government,” . . . Under this agreement, the NAS was to “review and summarize the scientific evidence, and assess the strength thereof . . .” In March 2016, while Mr. Euzebio’s appeal was pending before the Board, the NAS Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides published the NAS Update 2014. . . . In July 2017, the Board denied Mr. Euzebio’s claim. . . . The Board concluded that Mr. Euzebio “ha[d] not . . . met” “[t]he criteria for service connection for a thyroid disability,” finding that Mr. Euzebio’s “benign thyroid nodules ha[d] not been shown to be related to his in-service environmental exposures.” . . . Mr. Euzebio argued that . . . “the Board failed to consider and discuss ‘all evidence and material of record and applicable provisions of law and regulation,’ including the [NAS Update 2014].” . . . Before the Veterans Court, it was undisputed that the NAS Update 2014 “was created for [the] VA pursuant to a congressional mandate” and “was published in 2016, prior to the Board decision on appeal,”. . . and, further, that the “VA generally knew of the existence of the [NAS Update 2014] at the time of the decision on appeal.” . . . A divided panel of the Veterans Court affirmed the Board’s decision. . . . The majority “conclude[d] that the [NAS Update 2014] was not constructively . . . before the Board.”

The Federal Circuit first pointed out that it reviews legal determinations made by Veterans Court de novo. The court then proceeded to conduct its analysis of the legal question decided by the Veterans Court.

The Federal Circuit noted that the Veterans Court held that the VA’s awareness of the NAS Update 2014 was not enough to show possession, and instead required a direct relationship to the claim on appeal, which was not present with respect to Mr. Euzebio’s claim. The Federal Circuit held that this was an erroneous legal standard.

The Federal Circuit explained that the constructive possession doctrine provides that evidence that is within the Secretary’s control and could reasonably be expected to be a part of the record before the Secretary and the Board is constructively part of the administrative record. The court articulated the standard for constructive possession as “relevance and reasonableness.” In this regard, it clarified that not every treatise, text, or medical record needs to be part of the record. Rather, when the Board has constructive or actual knowledge of evidence that is “relevant and reasonably connected” to a veteran’s claim, but does not consider it, the Veterans Court must decide whether given that evidence the Board’s decision is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” and remand for further consideration or explanation where appropriate.

The Federal Circuit maintained that requiring the evidence to bear a “direct relationship” to the claim on appeal is “without basis in relevant statute or regulation.” Further, the court found, in this case it was undisputed that the NAS Update 2014 was published prior to the Board’s decision on appeal and that the Board knew of its existence.

In the end, however, the Federal Circuit explained that a determination of whether the Board had constructive possession of the NAS Update 2014 under the correct legal standard is a question for the Veterans Court. Thus, the court vacated and remanded the judgment of the Veterans Court.