Matthews: Board May Not Sub Silento Incorporate Reasons from a Prior Board Decision

Matthews v. McDonald, Case Number 2015-1787, decided October 14, 2016 is a decision involving a a case with multiple Board decisions where the Board seemed to finally accept the failure of the Appeals Management Center to follow directions without explaining why they were not going to follow instructions.

The veteran claimed residuals from a neck tumor should be service connected.  The claim resulted in three Board decisions.  The first Board decision required the AMC to assemble a panel of three compensation-certified oncologists to review a sample of the tumor and render an opinion on the tumor. The AMC never was able to assemble the panel and instead supplied an opinion by a private physician, whose opinion resulted in a denial of the claim. 

The second Board decision remanded the claim because the VA had not asked the veteran for authorization to release a tissue sample of the tumor and the medical opinion did not contain an adequate supporting rationale.  That same decision noted while only one oncologist, rather than three, provided an opinion, the veteran was not prejudiced.

The third Board decision resulted after the AMC found another oncologist to provide a negative opinion and subsequently denied the claim.  The third decision stated the VA had satisfied its duty to assist.

On appeal to the Court, the veteran argued the Board did not adequately explain why an opinion from three VA oncologists was no longer necessary as specified in the initial Board decision.  The Secretary argued the Board was not required to address that question in its most recent decision because the Board had explained in its second decision that the veteran was not prejudiced by an on opinion from a single oncologist.

The Court held “that the Board is not permitted to sub silentio incorporate its reasons and bases form a prior remand order into a later decision.  The Secretary has not cited any legal authority, nor is the Court aware of any that allows the Board to eschew section 7104(d)(1) in that manner.  To the contrary, the Court [has] suggested … [in a prior decision] that the Board would be required to provide reasons or bases for ‘its previous determination on a matter’ in each subsequent Board decision, either by addressing it anew, ‘largely recycle[ing]’ its prior reasons or bases, or ‘replicat[ing] the language it employed previously.’”  The Court further noted that Board findings are in non-final remand orders are insulated from judicial review and finds in Board remand orders that are unfavorable are not final and are not binding—“Such a conclusion would be antithetical to the pro-claimant veterans benefits system and, absent some indication that Congress intended to make findings in Board remand orders binding and unreviewable, the Court will not impose such limitations.”

Overall, the VA’s actions in this case are not unusual, they arbitrarily create standards (assemble a panel of three) and then dispense with the requirement when it is too hard.  The Court’s decision seems motivated by the arbitrary nature of the VA’s rejection of its own requirements.  The decision also helps to bring to the forefront that a mistake in a VA remand decision is not lost, but should still be able to be raised on appeal.

Decision written by Judge Bartley and joined in by Judge Schoelen and Pietsch.