Gainer v. McDonald
664 F. App'x 940
| Fed. Cir. | 2016Background
- Robert Gainer, a veteran, had prior VA disability ratings for back conditions and sought total disability based on individual unemployability (IU) after medical exams in 2009 and later.
- Dr. Hardin (VA physician) provided opinions (2009, 2014) that Gainer could not be employed due to pain and disc disease; Gainer filed an informal IU claim based on these records.
- The Regional Office denied the IU claim multiple times; the Board remanded several times for additional medical/vocational exams; Gainer repeatedly refused further exams, insisting the Board consider existing records (including Dr. Hardin’s 2014 notes and 1990 hospitalization records).
- The Board ultimately denied the IU claim and affirmed; the Court of Appeals for Veterans Claims (Veterans Court) affirmed the Board’s decision and rejected Gainer’s arguments that the Board failed to consider certain evidence and misapplied rating criteria.
- On appeal to the Federal Circuit, Gainer argued the Veterans Court misinterpreted 38 U.S.C. § 7104(a) by allowing the Board to consider evidence not previously considered by the Regional Office and raised factual sufficiency challenges.
- The Federal Circuit held it had jurisdiction only over legal questions (not factual challenges) and found no legal error in the Veterans Court’s interpretation of § 7104(a); other arguments invoking factual determinations were dismissed for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court misinterpreted 38 U.S.C. § 7104(a) regarding the Board considering evidence not adjudicated first by the Regional Office | Gainer: The Veterans Court erred in allowing the Board to consider evidence the Regional Office had not considered | Government: § 7104(a) requires Board decisions to be based on the record; the Board generally may not consider evidence in the first instance without claimant waiver, and the Veterans Court applied that rule correctly | Court: No legal error; Veterans Court correctly recognized the Board generally may not consider evidence in the first instance and reviewed the record accordingly |
| Whether the Board failed to consider Dr. Hardin’s June 2014 examination notes | Gainer: The Board and Veterans Court did not consider those notes when deciding his claim | Government: There is a presumption the VA (including the Board) reviews all evidence; Gainer did not rebut the presumption | Court: Veterans Court reasonably found the presumption unrebutted and did not err legally in its treatment of the notes |
| Whether the Board should have applied rating criteria for intervertebral disc syndrome (IVDS) to the IU claim | Gainer: IVDS criteria should apply | Government: IVDS criteria do not govern a claim for total disability based on IU | Court: Veterans Court correctly concluded IVDS criteria do not apply to IU claims |
| Challenges to factual findings and substantial evidence supporting the Board/Veterans Court | Gainer: The facts accepted by the Board/Veterans Court are not supported by substantial evidence | Government: Factual determinations are for the Veterans Court/Board to resolve | Court: Dismissed for lack of jurisdiction—factual sufficiency review is not permitted on appeal |
Key Cases Cited
- Wagner v. Shinseki, 733 F.3d 1343 (Fed. Cir. 2013) (limits Federal Circuit review of Veterans Court to legal questions, not factual determinations)