Donald Mathews v. Robert A. McDonald
28 Vet. App. 309
| Vet. App. | 2016Background
- Veteran Donald Mathews sought service connection for postoperative residuals of a left neck tumor removed in 2002; pathology over time was inconclusive (variously characterized as undifferentiated carcinoma, metastatic neoplasm most compatible with melanoma, or other malignancies).
- VA regional office denied service connection (2003); Mathews appealed to the Board and the claim was remanded multiple times for further development, including a May 2007 Board remand ordering a panel of three oncologists to review tissue samples to reach a "consensus."
- AMC was unable to assemble the three-oncologist panel; VA obtained single-expert opinions (private oncologist in 2009, VA oncologist and pathologist reviews in 2013–2014) and hematoxylin and eosin slides were later reviewed by VA pathologists.
- The Board in December 2011 said a single qualified oncologist could suffice and found no prejudice from using one oncologist; later Board decisions and VA opinions continued to deny service connection, culminating in a March 30, 2015 Board decision denying service connection.
- On appeal, Mathews argued the Board inadequately explained why it abandoned the May 2007 panel requirement and that VA failed to substantially comply with remand orders; the Secretary argued prior remand explanations sufficed and that single-expert opinions were adequate.
- The Court set aside the March 2015 Board decision and remanded, holding the Board may not sub silentio incorporate reasons or bases from prior remand orders into a later decision and must expressly explain substantial-compliance findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board may sub silentio incorporate reasons or bases from a prior remand into a later final decision | Mathews: Board erred by failing to explain why a three-oncologist panel was no longer necessary and by relying on prior remand reasoning without restating it | Secretary: December 2011 remand explained single-oncologist sufficed; Board need not repeat prior reasoning | Court: Board may not sub silentio incorporate prior remand reasons or bases; must expressly address or repeat prior findings when issuing a final decision |
| Whether the Board adequately explained that VA substantially complied with its May 2007 remand ordering a three-oncologist panel | Mathews: Board failed to justify substantial compliance given the May 2007 panel requirement | Secretary: Earlier remand (Dec 2011) said single qualified oncologist would not prejudice the veteran | Court: The Board failed to provide adequate reasons or bases explaining substantial compliance; error is prejudicial and remand is required |
| Adequacy of VA medical opinions (Dr. Lin and others) relied on to deny service connection | Mathews: Dr. Lin relied on a flawed pilot study and certain opinions were inadequate | Secretary: Opinions were adequate for adjudication | Court: Declined to resolve factual adequacy of study/opinions on appeal; directed Board to address on remand as factfinding is for the agency |
| Remedy for the Board's reasons-or-bases error | Mathews: Vacatur/remand needed | Secretary: No specific alternative remedy argued | Court: Set aside the March 2015 Board decision and remanded for further development and readjudication consistent with opinion |
Key Cases Cited
- Stegall v. West, 11 Vet.App. 268 (1998) (remand confers claimant right to compliance with remand order)
- Donnellan v. Shinseki, 24 Vet.App. 167 (2010) (substantial, not strict, compliance standard for remand)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (requiring Board to provide adequate reasons or bases)
- Castellano v. Shinseki, 25 Vet.App. 146 (2011) (Board must provide reasons or bases for previous determinations in subsequent decisions)
- Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013) (presumption that VA selects competent medical examiners)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand is appropriate remedy for Board errors in law or reasons-or-bases)
- Shinseki v. Sanders, 556 U.S. 396 (2009) (appellate courts apply harmless-error review to veterans benefits cases)