Argument Preview / Panel Activity

The fourth case being argued next week at the Federal Circuit that attracted amicus briefs is Euzebio v. Wilkie. In this case, the court will consider three issues related to veterans law: (1) whether “[t]he Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board because it excludes relevant matters that are known or should be known to the Board;” (2) whether “the Veterans Court erred in holding that it lacks the legal authority to look at relevant facts known to the agency for purposes of reviewing the Board’s decision;” and (3) whether “the Veterans Court misinterpreted the scope of VA’s duty to assist when it affirmed VA’s failure to develop the record with relevant facts concededly known to the agency.” This is our argument preview.

Euzebio, a veteran, urges the court in his opening brief to find that, as a matter of law, “the Board’s undisputed knowledge of relevant evidence—here, Veterans and Agent Orange: Update 2014—requires . . . that the evidence be deemed to have been before the Board in an adjudication.” In this regard, Euzebio argues two primary points.

First, Euzebio asserts that the “‘direct relationship’ requirement is an erroneous standard for determining what is before the Board.” Euzebio explains that “Veterans Court held that the Update was not before the Board because the ‘general information about the type of disability on appeal’ in the Update did not give it a ‘direct relationship’ to Euzebio’s appeal.” Euzebio contends the VA “cannot feign ignorance of relevant evidence of which it is aware.”

Second, according to Euzebio, since “it is undisputed that the Board knew about the Update when it decided Mr. Euzebio’s claim” and that “the Update was relevant to his claim,” this court should find the Board’s “decision arbitrary and capricious.”

In conclusion, Euzbio argued the court to “hold that when the Board is on actual notice of relevant evidence, it must consider it, and that relevant evidence is not limited to evidence specific to the claimant.” In the alternative, Euzebio asserts, the court “should hold that developing the record with relevant evidence known to VA is within the scope of the duty to assist, and that the Veterans Court has authority to review the agency’s failure to do so.”

In its response brief, the Secretary argues the “Veterans Court properly found that ‘the record of proceedings’ in 38 U.S.C. § 7252(b) did not include Update 2014.” In this regard, the Secretary asserts three main points.

First, the Secretary contends the Update 2014 does not meet the relevant definition in the Veterans Court’s jurisdictional statute. The Secretary argues the “plain language of the Veterans Court’s jurisdictional statute establishes that ‘the record’ refers to evidence that was before the Secretary and the board and to a unitary body of documents compiled for purposes of VA adjudication that is presented to the court for purposes of judicial appeal.” According to the Secretary, “Update 2014 does not meet that definition.”

Second, the Secretary asserts the “Veterans Court [was not] required to take official notice of Update 2014.” According to the Secretary, the “official-notice doctrine is committed to the agency’s discretion, and the board did not abuse that discretion by not taking official notice of Update 2014 because it does not address the disability that is the basis of Mr. Euzebio’s claim.”

Third, the Secretary argues the “constructive possession doctrine is not for application here.” According to the Secretary, the “clear meaning of section 7252(b) of Title 38 is that ‘the record of proceedings before the Secretary and Board’ does not include documents that were not before Secretary adjudicators but which the Veterans Court, in hindsight, believes could or should have been included in that record.” Moreover, the Secretary asserts, “[a]pplication of the doctrine is also inconsistent with the Veterans Court’s established scope of review under section 7261(a)(3)(A).”

In his reply, Euzebio contends that, in its brief, the Secretary “ignores that the Board admittedly knew about the Update when it decided” his claim. In this regard, Euzebio reiterates his argument that the “Veterans Court’s ‘direct relationship’ requirement is an erroneous legal standard for determining what facts are before the Board because it excludes relevant matters that are known to the Board, insulating the Board’s disregard of those matters from judicial review.”

Two amicus briefs were filed in support of Euzebio. First, the National Veterans Legal Services Program filed an amicus brief arguing against the Veteran’s Court’s understanding of the constructive possession doctrine. The NVLSP contends that the requirement “that materials be specific to the veteran, resulted in exclusion of a report prepared specifically for VA and indisputably relevant to Mr. Euzebio’s disability.” Therefore, according to NVLSP, that “standard inappropriately constricts ‘the record’ in 38 U.S.C. § 7252(b), which has no specific-to-the-veteran requirement.” As a solution, the NVLSP urges the court that “[a] new standard should be set, focusing on the claim, not the specific veteran.”

Second, the National Law School Veterans Clinic Consortium filed an amicus brief also arguing against the “direct relationship” requirement used by the Veteran’s Court. First, the NLSVCC contends, the “CAVC’s interpretation of 38 U.S.C.§ 7252(b) is inconsistent with the uniquely pro-claimant scheme of all veterans law statutes read as a whole.” Second, the NLSVCC asserts, the “‘direct relationship’ requirement allows VA to sua sponte rely on scientific evidence as relevant and material in denying a veteran’s claim while ignoring the same evidence as irrelevant when it might help a veteran’s claim.”

Oral arguments will be heard on Friday, November 6. As in all four of this month’s argued cases that attracted amicus briefs, we will keep track of this case and report on any developments.