Cook II: Right to a Board Hearing After Remand from the Court

Cook v. Wilkie, Case Number 2017-2181, decided November 13, 2018 is an appeal to the Federal Circuit Court of Appeals from a prior published CAVC (Court of Appeals for Veterans Claims) decision, Cook v. Snyder, 28 Vet. App. 330 (2017), previously summarized on this blog on February 27, 2017. 
The CAVC previously refused to defer to the VA and stated a veteran has the right to another Board hearing after remand of his claim from the CAVC.  The veteran received a remand from the CAVC 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. 

The CAVC determined 38 USC 7107(b) was ambiguous as to this point, but determined Chevron deference was not owed 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.

Secondly, the CAVC 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. 

The CAVC 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 CAVC 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.

The VA could not stomach the CAVC’s decision and appealed, arguing “that § 7107(b) does not entitle a claimant to a Board hearing after remand from the Veterans Court if the Board has already given the claimant a hearing earlier in the case. According to the Secretary, the word “appeal” only refers to the submission of certain forms for the Board’s initial review and does not encompass subsequent adjudications on remand.”  Id. at *8.

The Federal Circuit turned to the text of 7107 which states “[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing.”  First, the Court noted the word “any” should be read expansively “[a]ccordingly, the phrase “any appeal” indicates that the Board is not free to curate which appeals are entitled to “an opportunity for a hearing.” The Board must provide such an opportunity before it decides every appeal.”  Id. at *9. 
The Court also noted the Veteran’s Court vacated the prior decision, which nullified or cancelled that decision.  Therefore, on remand the Board had to review the claim anew in accord with remand instructions.  “In other words, the Board must again decide the appeal, or a “proceeding undertaken to have a decision reconsidered by a higher

authority.” Because the Board must decide the appeal on remand, we conclude that § 7107(b) requires the Board to afford the appellant an opportunity for another hearing.”  Id. at *10.

The Court summarized by stating “In sum, the text of § 7107(b) better supports Cook’s

argument that the Board must provide a claimant an opportunity for a hearing before it decides every appeal, including after remand from the Veterans Court. We therefore affirm the Veterans Court’s decision.”  Id. at *10-11.  Interestingly the Court includes a footnote stating certain remands from the CAVC involving ministerial remands may not trigger the opportunity for a hearing.
This case is important as it promises the opportunity to be heard to veterans by guaranteeing the right to a hearing on remand.  It also actually amplifies the prior Cook decision.  I had been concerned that Cook I as written may have allowed the VA to rewrite the regulations to try to gain agency deference under Chevron.  However, the way the Federal Circuit relied on the text of 7107 to render its decision, I believe such a regulatory change would be in doubt.

Decision by Judge Lourie and joined in by Judges Newman and Clevenger.

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