Euzebio v. McDonough
989 F.3d 1305
| Fed. Cir. | 2021Background
- Robert Euzebio, a Vietnam veteran, claimed service connection for benign thyroid nodules allegedly caused by Agent Orange exposure; the VA denied and the Board affirmed without ordering a VA nexus exam.
- The NAS published Veterans and Agent Orange: Update 2014 while Euzebio’s appeal was pending; that report found indications of an association between herbicide exposure and thyroid conditions.
- The Board did not cite or expressly consider the NAS Update 2014 and concluded Euzebio’s lay assertions were insufficient under McLendon to trigger a VA examination.
- A divided Veterans Court panel affirmed, holding the NAS Update 2014 was not constructively before the Board because it lacked a “direct relationship” to the individual claim.
- The Federal Circuit vacated and remanded, holding the Veterans Court applied an erroneous “direct relationship” test and explaining constructive-possession turns on relevance and whether the document could reasonably be expected to be part of the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the NAS Update 2014 was constructively part of the administrative record | NAS Update 2014 was constructively before the Board because VA knew of it and it relates to Agent Orange claims generally | Veterans Court/VA: constructive possession requires a direct, specific relationship to the veteran’s claim | Veterans Court applied wrong standard; constructive possession requires relevance and that the document could reasonably be expected to be part of the record, not specificity to the veteran; vacated and remanded |
| Whether the Board should have provided a VA medical examination (McLendon duty to assist) | Euzebio: had sufficient indicia (including NAS Update 2014) to trigger medical exam | VA: claimant’s generalized lay statements lacked probative value to trigger McLendon | Federal Circuit did not resolve factual application; remanded for the Veterans Court/Board to apply the correct constructive-possession standard and then assess McLendon under the proper record |
Key Cases Cited
- Bell v. Derwinski, 2 Vet. App. 611 (Vet. App. 1992) (establishing constructive-possession rule for VA-held documents)
- Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) (applies and clarifies Bell constructive-possession principles)
- Monzingo v. Shinseki, 26 Vet. App. 97 (Vet. App. 2012) (Veterans Court’s “direct relationship” formulation at issue)
- Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (limits on use of extra-record evidence and judicial notice)
- McLendon v. Nicholson, 20 Vet. App. 79 (Vet. App. 2006) (standard for when VA must provide a medical examination)
- Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (U.S. 2011) (describes Veterans Court’s role and review scope)