Earlier this month the Federal Circuit issued it opinion in Frantzis v. McDonough, a veterans case that attracted two amicus briefs. In this case, the Federal Circuit reviewed a determination by the Court of Veterans Claims that, under the Veterans Appeals Improvement and Modernization Act, a claimant is not entitled to an opportunity for a hearing before the Board member who ultimately decides the administrative appeal. The Federal Circuit, in an opinion authored by Chief Judge Moore that was joined by Judges Clevenger and Chen, affirmed the judgment of the Court of Veteran Claims. This is our opinion summary.
Judge Moore began by outlining the procedural and factual background of the case:
Mr. Frantzis . . . sought service connection for several conditions, including headaches. . . . [T]he VA granted service connection for his headaches and assigned a noncompensable disability rating. Mr. Frantzis timely appealed. . . . While Mr. Frantzis’ appeal was pending at the Board, the Veterans Appeals Improvement and Modernization Act of 2017, also known as the Appeals Modernization Act (AMA), was enacted. . . . Mr. Frantzis elected to have his claim adjudicated under the AMA. . . . Mr. Frantzis and his wife testified at a Board hearing conducted by Board member James Reinhart. . . . Board member Theresa Catino issued a decision denying an increased rating and an earlier effective date for Mr. Frantzis’ service-connected headaches. Mr. Frantzis appealed to the Veterans Court, arguing 38 U.S.C. § 7102 requires the same Board member who conducts a hearing to also issue the resulting decision. . . . [A] divided panel affirmed the Board’s decision. . . . Mr. Frantzis appeals.
Judge Moore began her analysis for the court by explaining how the panel reviews “the Veterans Court’s legal interpretations de novo.” Significantly, she also noted that “[t]he AMA allows claimants with legacy claims to elect the new appeals system over the legacy system,” and that “Mr. Frantzis elected to participate in the AMA system.” Judge Moore then pointed out that, “[u]nder the pre-AMA system, the Board member who conducted the hearing must participate in the final determination of the claim.” She, however, also explained that “[t]he AMA . . . removed the language that required the same judge for both the hearing and final determination.”
Judge Moore turned to the argument that “38 U.S.C. § 7102 supplies a same Board member requirement.” She rejected this argument, explaining that “[t]he source of the same member requirement for the legacy appeals system was pre-AMA 38 U.S.C. § 7107(c).” The “unchanged language of § 7102,” she continued, therefore cannot be the basis for the same member requirement in the AMA system” or else it “would violate the presumption against surplusage.”
Judge Moore addressed a final argument that “the Veterans Court erred by declining to address the fair process doctrine.” She rejected this argument given that it “was not presented below and is thus forfeited.”
As a result of its analysis, the Federal Circuit affirmed the Board’s judgment.