Clark: Waiver of Duty to Assist and Court Appeals of Board Remands

Clark v. McDonough, Case Number 21-1124, decided June 15, 2022 discusses the ability to waive the duty to assist and whether a veteran can appeal to the Court a Board remand.

The case involved a Board decision that rejected the veteran’s motion to waive her rights to further development of her case under the duty to assist and remanded the case for more development.  The Secretary moved to dismiss and the Court granted.  The veteran argued the Court did have jurisdiction because the Board denied her motion to waive her rights under a duty to assist and this was a final adverse decision on the motion.

The Court began by noting its jurisdiction is limited to final Board decisions.  The Court then stated under 38 USC section 511(a) a final decision of the Board involves “reviewing and deciding questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits.”  The Court then noted the Federal Circuit in Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000) held “A 'decision' of the Board, for purposes of the Veterans Court's jurisdiction under section 7252, is the decision with respect to the benefit sought by the veteran: those benefits are either granted . . . or they are denied.” 

Section 511(a) as interpreted by Maggitt led the Court to conclude: “for the Court to take jurisdiction over an appeal from the Board, the Board must have granted or denied benefits, and the claimant must have been adversely affected by the Board's decision.”

The Court offered a small degree of assistance to veterans by saying:

“Although we have determined that we lack jurisdiction to hear this appeal, that is not to say that Mrs. Clark is without recourse to pursue her arguments or that, through remand, the Board can inoculate its actions from judicial review. See Beaudette v. McDonough, 34 Vet.App. 95, 103 (2021) ("[T]here is a 'strong presumption favoring judicial review of administrative action.'") (quoting Salinas v. U.S. R.R. Ret. Bd., 141 S. Ct. 691, 698 (2021)). Should the Board render an adverse final decision on Mrs. Clark's DIC claim—which is once again before the Board—she can appeal that decision to the Court and raise her arguments here. See §§ 7252, 7266. If she believes that VA has unreasonably delayed or otherwise frustrated the adjudication of her claim, she can petition the Court for extraordinary relief under the All Writs Act. See 28 U.S.C. § 1651. The Court is sympathetic to Mrs. Clark's situation, particularly considering her advanced age and the long period that has elapsed since her initial DIC claim. Yet concerns about improper delay or potential frustration of the Court's appellate jurisdiction go to the merits of a petition for extraordinary relief.  They do not support the Court's jurisdiction over an appeal from a nonfinal Board remand.”

Id. at *7.

This decision underscores the fact the Veterans Court sees itself as unable to consider non-final Board decisions.  Of course, this only creates an incentive for the VA to continue remands and thus the hamster wheel.

Decision published per curium by Judges Greenberg, Falvey and Jaquith.

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