Lang v. Wilkie
971 F.3d 1348
| Fed. Cir. | 2020Background
- James R. Lang, Marine Corps veteran, was diagnosed with PTSD on March 9, 1995, and was granted a 10% disability rating on June 18, 1996.
- Lang continued PTSD treatment at the Pittsburgh VAMC from June 1996 through June 1997, generating VA medical records during the one-year appeal period after the 1996 decision.
- In February 2014 Lang filed a motion to revise the 1996 rating based on clear and unmistakable error (CUE); the RO denied it and the Board ultimately denied revision in September 2017.
- On appeal the Veterans Court held the post-decision VAMC records were not "constructively received" because VA adjudicators lacked actual knowledge of them (relying on Turner v. Shulkin), so the 1996 decision was final and CUE review was permissible.
- Lang appealed to the Federal Circuit arguing the Veterans Court erred by requiring actual VA knowledge for constructive receipt; he contended VA-generated records created within the one-year appeal period keep a claim open under 38 C.F.R. § 3.156(b).
- The Federal Circuit vacated and remanded: it held VA-created medical records within the one-year appeal period are constructively received if reasonably connected to the claim, so the Board must determine whether they are new and material before any CUE analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether VA-generated medical records created within the one-year appeal period are "constructively received" under 38 C.F.R. § 3.156(b) so the claim remains open | Lang: VA-created records from the VAMC in the year after the decision are constructively part of his record and keep the claim open for § 3.156(b) review | Gov: Veterans Court lacked jurisdiction to address the finality issue raised for first time on appeal; and Turner’s actual-knowledge trigger should control | Held: Constructive receipt follows Bell — no actual knowledge required: VA-created records reasonably connected to the claim and generated within the one-year period are constructively received under § 3.156(b) |
| Whether the Veterans Court had discretion/jurisdiction to address Lang’s finality argument raised first on appeal | Lang: The argument is procedural (finality), not a new CUE claim, and the Veterans Court may address new arguments on appeal | Gov: Because Lang’s Board pleadings alleged CUE, the Veterans Court should not address a new procedural finality argument | Held: Veterans Court had discretion to consider the argument; Federal Circuit reviews legal issues de novo and has jurisdiction to decide the matter |
| Whether Turner v. Shulkin correctly added an "actual knowledge" or "triggering" requirement to Bell for post-decision VA records | Lang: Turner is inconsistent with Bell and its progeny; no additional knowledge requirement should be imposed | Gov: Turner’s test limits reopening of finalized decisions and avoids widespread disruption | Held: Turner misapplied Bell; the Federal Circuit rejects the Turner actual-knowledge trigger and applies Bell’s framework to post-decision VA records |
| Remedy when post-decision VA records exist but the Board did not determine if they are "new and material" | Lang: Remand to Board for § 3.156(b) determination and, if appropriate, further development — CUE not applicable until finality is established | Gov: (Implicit) Board’s CUE denial stands if decision was final | Held: Vacated and remanded — Board must determine whether the post-decision VA records are new and material before any CUE analysis or finality determination |
Key Cases Cited
- Bell v. Derwinski, 2 Vet. App. 611 (Vet. App. 1992) (VA-generated documents in Secretary’s possession are constructively part of the record)
- Turner v. Shulkin, 29 Vet. App. 207 (Vet. App. 2018) (articulated an actual-knowledge "trigger" for § 3.156(b))
- Monzingo v. Shinseki, 26 Vet. App. 97 (Vet. App. 2012) (VA documents must have a direct relationship to the claimant’s appeal to be constructively before the Board)
- Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (VA duty to assist in retrieving medical records is not limited to records relevant to a specific claim)
- Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014) (§ 3.156(b) requires a VA determination responsive to post-decision submissions; claim remains open until addressed)
- Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (each specific CUE allegation must be presented to the Board before Veterans Court review)
- Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000) (Veterans Court has discretion to consider issues not raised before the Board)
- Bowey v. West, 11 Vet. App. 106 (Vet. App. 1998) (non-VA documents are not constructively before the Board absent presentation)
- Goodwin v. West, 11 Vet. App. 494 (Vet. App. 1998) (VA-created records for one claimant are not automatically part of every claimant’s record absent a direct relationship)