908 F.3d 813
Fed. Cir.2018Background
- Warren B. Cook, a Navy veteran, sought service connection and TDIU for back conditions; claims were denied by the RO and appealed to the Board.
- Cook testified at a 2012 Board hearing; the Board remanded to the RO, which again denied the claims.
- Cook requested an additional Board hearing after further denials; the Board refused, saying he already had a hearing, and denied the claims.
- The Veterans Court vacated the Board decision and remanded because the Board failed to address a medical report; on remand Cook again requested a hearing and the Board again denied it.
- The Veterans Court held that 38 U.S.C. § 7107(b) entitles a claimant to a Board hearing when the Board again decides an appeal after a Veterans Court vacatur and remand, and remanded for a hearing.
- The Secretary appealed to the Federal Circuit, which considered whether § 7107(b) requires a post-remand opportunity for a hearing when a prior Board hearing was already held.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 38 U.S.C. § 7107(b) requires the Board to afford an appellant an opportunity for a hearing when it again decides an appeal on remand after the Veterans Court vacates the Board's previous decision | Cook: § 7107(b)’s plain text ("any appeal" + "an opportunity for a hearing") requires the Board to offer a hearing whenever it decides an appeal, including post-remand; ambiguities resolved for veteran | Secretary: Once a claimant has had a Board hearing, § 7107(b) does not require another hearing after remand; "appeal" means the initial submission and statutory/regulatory process | Held: Affirmed Veterans Court. "Any appeal" has expansive meaning; a vacatur makes the Board’s prior decision void so the Board again "decides" the appeal on remand and must afford an opportunity for a hearing (ministerial remands may be an exception) |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (establishes administrative deference framework)
- Skidmore v. Swift & Co., 323 U.S. 134 (agency interpretations entitled to respect based on persuasiveness)
- SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348 ("any" carries expansive meaning)
- Williams v. Principi, 275 F.3d 1361 (Fed. Cir. 2002) (finality exception for review of Veterans Court remand orders)
- DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008) (de novo review of Veterans Court statutory interpretation)