Quinn: Opportunity for a Board Hearing after Remand and Further Development by the RO

Quinn v. Wilkie, Case Number 17-4555, decided July 11, 2019 considers the right to a Board hearing after the Board had previously remanded and the case been developed further by the RO.

The statute at issue in this case is 38 USC Section 7107(b) and states “[t]he Board shall

decide any appeal only after affording the appellant an opportunity for a hearing.”  The Court noted that this issue was not specifically addressed by Cook v. Wilkie, 908 F.3d 813 (Fed. Cir. 2018) ("Cook II"), but that case law is relevant.

The Court explained:

In Cook II, the Federal Circuit had to determine whether a claimant who had been afforded a Board hearing and then appealed an adverse decision to this Court was entitled to another hearing after we vacated the Board's decision on appeal and remanded the matter.  The Federal Circuit held that section 7107(b) unambiguously entitles a claimant "to an opportunity for an additional Board hearing in these circumstances.”

Id. at *5  The Court explained it would use Cook II as a guide in this case.

The Court pivoted to the word “any” in Section 7107(b) and explained:

We see no reason to deviate from how the Federal Circuit interpreted the plain meaning of "any," even if we were at liberty to do so:

As the Supreme Court has recently observed, "the word 'any' naturally carries 'an

expansive meaning.'" When coupled with a singular noun in an affirmative context, "any" typically "refer[s] to a member of a particular group or class without distinction or limitation" and "impl[ies] every member of the class or group." In [section] 7107(b), the word "any" modifies the singular "appeal" in an affirmative context, i.e., the statute imposes a positive duty on the Board to provide an opportunity for a hearing before it decides any appeal. Accordingly, 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 *5-6.

The Court then turned to the word “appeal” and determined the text supplied an answer and reasoned:

An appeal is "[a] proceeding undertaken to have a decision reconsidered by a higher authority; esp[ecially], the submission of a lower court's or agency's decision to a higher court for review and possible reversal." BLACK'S LAW DICTIONARY (10th ed. 2014); see Cook II, 908 F.3d at 818 (citing this same dictionary definition). Using this definition, the Federal Circuit in Cook II determined that when this Court vacated a Board decision and remanded the matter for a new Board decision, the Board was deciding an "appeal." Id. (reasoning that, in those circumstances, "on remand the Board must review the RO’s decision anew in accordance with the Veterans Court's instructions" (emphasis added)).

The same is true in the factual situation before us.

Id. at *6.

The Court also declined to follow the Secretary’s lead and “insert the words "on the merits" into the statute – to insert them would limit a right to a hearing to matters that constitute a final decision on the merits that would allow an appeal to this Court. See O.A. at 24:50-26:30. Congress did not limit the right to hearing in that way. In fact, Congress was expansive in providing a right to a hearing in "any" situation in which the Board "decide[s] an appeal."  Id. at *7.

Finally, the Court, apparently looking to cut off a potential regulatory change by the VA, determined:

The statute also makes plain that the right to an opportunity for a hearing is not one that is within the discretion of VA.   Congress used the mandatory word "shall" in connection with the right to an opportunity for a hearing before the Board "decide[s] any appeal." Absent a textual reason to believe otherwise, something not present here, the word "shall"

leaves no room for discretion.

Id. at *7.

The Court then pivoted to the question of prejudicial error and in part the Secretary’s assertion the appellant could have submitted written evidence.  The Court determined:

The argument that the opportunity to submit relevant information in writing is equivalent to the opportunity to present it at a Board hearing cannot be squared with the fact that

Congress specifically codified Board hearing rights because of the unique benefits of that

opportunity. See id. at 344 (citing internally to part III.A. of the opinion, in which we discussed the "history and role of the personal hearing in Board adjudications"). In particular, in this case a hearing would have provided the appellant the ability to address and respond to any specific Board member questions relating to the new evidence and testimony she was submitting. And there is also the intangible, but nonetheless important, point that an adjudicator would be able to observe the demeanor of a veteran at a hearing, which reading a written submission would not allow.

Id. at *9.

It is important to note that the statute on which this claim is based, 38 USC Section 7107, was amended by Veterans Appeals Improvement Modernization Act of 2017 and thus this case is specifically going to govern cases that are not subject to VAIMA.

Secondarily, the Court considered an exhaustion issue raised by the Secretary.  Specifically, “[t] he Secretary argues that the appellant raised the argument of entitlement to a second hearing under section 7107(b) for the first time on appeal because she did not reassert her request to the Board directly, implicating the law of issue exhaustion.  He

urges us to decline to hear the appellant's arguments. Id. However, the appellant did all that was required to raise the issue. After all, she requested a hearing and was told no.”  Id. at *1-2.

Decision by Judge Allen and joined in by Judge Schoelen and Pietsch.

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