Greer v. McDonough, Case Number 20-3047, decided June 12, 2023 involves the issue of whether the Board must comply with Section 5104(b) notice requirements.
The case deal with whether a veteran could receive non-service connected pension benefits in light of his net worth, which was held in a trust. But, the issues important going forward are whether the Board must comply with the notice requirements in 38 USC 5104(b) and whether the Board should have obtained a legal expert to address a complex trust document.
As to the first issue, the Court held “based upon the rule of construction included by Congress in the PACT Act, section 5104 as amended by the AMA does not apply to Board decisions. So, to the extent Ms. Greer contends that amended section 5104 imposes requirements that are substantively distinct from those imposed by section 7104, any noncompliance by the Board with respect to section 5104 wasn't error.” Id. at *8.
The Court explained: “the decisive text is not "a decision by the Secretary under section 511" but rather the PACT Act's rule of construction for section 5104. The rule states that the amendments to section 5104 "shall not be construed to apply section 5104(a) . . . to decisions of the Board." Critically, "apply" is being used transitively rather than intransitively. The rule of construction doesn't say that the amendments themselves shall not be read to apply to Board decisions; it says that the amendments shall not be read to apply section 5104(a)—that is, make section 5104(a) applicable— to Board decisions. From this plain language, we understand the implicit but clear instruction from Congress to be that section 5104(a) did not apply to decisions of the Board under the AMA at the time of the PACT Act's passage and that this inapplicability is to continue thereafter.” Id. at *6.
As to the second issue, the Court “rejects the attempt to pigeonhole Board members as competent only to address run-of-the-mill veterans law issues. Colvin's rule regarding medical questions cannot be analogized to legal questions, and we decline to impose a presumption of incompetence on the Board when it comes to broader legal issues—a presumption incompatible with this country's adjudicatory tradition. We hold that the Board member in this case was not required to secure an expert legal opinion in order to competently assess the Trust.” Id. at *12.
The determination that the Board does not have to comply with Section 5104(b) notice requirements is a shift that will likely impact the future. It allows the Board to dispense with arguments without ever really considering them fully.
Decision by Judge Toth and joined by Chief Judge Bartley and Judge Jaquith.
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