Cook v. Snyder, Case Number 15-0873, decided January 31,
2017 answers whether a veteran has the right to another Board hearing after remand
of his claim from the CAVC. In a tour de force opinion by Judge Bartley, in which
the Court conducts an exhaustive analysis of statutory and regulatory interpretation,
the Court ultimately finds the veteran does have a right to another post-remand
Board hearing.
The veteran here received a remand from the Court and asked
for a hearing from the Board specifically stating he wished the opportunity to
address certain points through his testimony.
The Board noted he had previously had a hearing (actually two) and denied
the request and the claim.
Before the Court, the veteran argued the denial of his
request for a hearing was in error. The
case dealt with 38 USC 7107(b). The
Court determined that both the veteran and the Secretary’s interpretations of
7107(b) were grammatically plausible and thus the “statute’s language is simply
not clear on this point.” Id. at
*9. The Court noted “Because Congress
has not directly addressed the precise issue at question, the next step in the
Court’s analysis would be to determine whether the VA’s implementing regulation
permissibly construes the statute and, if so, defer to that construction.” Id. at *10.
The Court concludes Chevron deference
is not owed in this case for two reasons.
First, no VA regulation resolves the statutory ambiguity—
Here, the regulations cited by the Secretary
all contain the same basic ambiguous language that, although not phrased
identically to the statute, do nothing to clarify the ambiguity … as to whether
a VA claimant who has had a personal hearing before the Board on an appeal is
entitled upon request to another Board hearing following a Court remand. Therefore, the Court is under no obligation
to accord deference to the Secretary’s interpretation under Chevron step two.
Id. at *10-11.
Secondly, the Court noted that the VA regulation preexisted the statute
and that because Chevron deference is
appropriate only where Congress has delegated authority to the agency to make
rules carrying the force of law. The
Court determined the VA has not actually used that delegated authority but
simply relies on a regulation predating the statute, which could not have
possible been promulgated to interpret the statute. Id. at *11.
The Court then noted where Chevron deference is inapplicable, the Court proceeds under the Skidmore rules of interpretation which
look to guidance from the agency but also weigh whether such guidance is
thorough, examines the reasoning, is consistent with earlier practice, and
whether it is generally persuasive. The
point is that Skidmore analysis is
much less deferential to the agency than Chevron.
The Court then relied heavily on the pro-veteran nature of
the VA adjudicatory process as well as the fact the nature of a claim may
change through the process to determine barring a post-remand personal hearing “would
be neither solicitous of a claimant not productive of informed Board
decisionmaking.” The Court also pulled
out the Brown v. Gardner trump card,
which states any doubt in the interpretation of a VA statutes or regulations
must be resolved in favor of a veteran.
Finally, the Court noted the Board was concerned the need
for more hearings would inundate an already overwhelmed Board, but noted “these
concerns do not authorize the Court to ignore the intent of Congress … and the
solicitous and pro-claimant principles informing veterans benefits law.” Id. at *19.
I would expect the VA to follow this opinion by seeking to
change the regulations to prevent the right to a post-remand hearing. Frankly this decision is important for at
least temporarily protecting the right to a post-remand hearing, but more
importantly for furthering a deep analysis to statutory and regulatory interpretation
to VA law. For too long, the VA has
gotten by relying on Chevron
deference, but this decision shows the veteran’s bar has become more forceful
in arguing against Chevron deference and
the Court is responding.
Decision by Judge Bartley, joined by Judge Pietsch and Senior
Judge Hagel.
