Euzebio: Constructive Possession of National Academy of Sciences Reports

Euzebio v. Wilkie, Case Number 17-2879, decided August 22, 2019 affirmed a Board decision finding against service connection for a benign thyroid nodule.  The case concerned whether a National Academy of Sciences report, Veterans and Agent Orange: Update 2014 (herein 2014 Update) was constructively before the VA.

Specifically, the veteran argued the Board should have considered the 2014 Update, which states benign thyroid nodules "may be associated with . . . service," and as a result afforded him a medical examination.

The Court acknowledged the 2014 Update:

(1) was created for VA pursuant to a congressional mandate, which directed the Secretary to enter into an agreement with the NAS to review and summarize scientific evidence concerning the association between exposure to herbicides used in Vietnam during the Vietnam era and diseases suspected to be associated with such exposure; (2) was  published in 2016, prior to the Board decision on appeal; and (3) reflects that there is "limited or suggestive evidence of an association between exposure to [herbicides] and hypothyroidism.

Id. at *5 (internal citations omitted). However, the Court noted that it was precluded from statute from considering material not contained in the record before the Secretary and the Board.  Id. at *5.  The Court then acknowledged case law supports the idea of finding that records are constructively before the Board “because the Court could not accept

the Board being "unaware" of certain evidence, especially when such evidence is in possession of . . . VA, and the Board is on notice as to its possible existence and relevance.”  Id. at *6.  The Court then summarized the law on constructive possession as:

In sum, as the constructive possession doctrine developed, the requirement that the document not relate too tenuously to the appellant's claim grew in significance, to the point where, today, an appellant must show that there is a direct relationship between the document and his or her claim to demonstrate that the document was constructively before the Board, even if the document was generated for and received by VA under a statutory mandate.  The document must bear a closer relationship to the appellant beyond providing general information related to the type of disability on appeal, or merely being referenced in other evidence of record or relied upon by appellants in similar cases.

Id. at *7-8.

In this case, the veteran did not submit the 2014 Update, but argued the Secretary knew about it and that it was potentially relevant because it addressed a relationship between a thyroid condition and AO exposure.  “However, our caselaw is clear that, even if VA is aware of a report and the report contains general information about the type of disability on appeal, that is insufficient to trigger the constructive possession doctrine; there must also be a direct relationship to the claim on appeal. Moreover, as in Monzingo, the requirement for a direct relationship is not satisfied simply because the report at issue was obtained by VA pursuant to a statutory mandate.”  Id. at *8.

Judge Allen wrote a blistering dissent that dissected the majority opinion as to whether the 2014 Update had a direct relationship to the veteran’s claim.

Judge Allen wrote:

The majority is certainly correct that Congress did not require VA to consider the reports in individual adjudications, see ante at 9, but that recognition does not mean that the congressional mandate to create those Updates is irrelevant to whether the Board should consider them under applicable law in certain individual cases.  And for me, the congressional directive is critical in terms of the significance of these reports more generally.  These are not the type of documents that are located somewhere in the bowels of VA, tucked away in the desk of some bureaucrat never to be read. They are documents that are important for the Agency because Congress made them so, expressly and unequivocally.  

Id. at *9.  Judge Allen then noted that we are aware the Board actually knows the 2014 Update exists: “the Secretary made clear during oral argument that the Board knows

about the NAS Updates. This fact is quite significant. This is not something obscure

or something that one could say only that the Board should have known. It is undisputed that the Board actually knows the Updates exist and that it knows what they are meant to do–provide scientific information about connections between Agent Orange exposure and certain medical conditions.”  Id. at *19.  Judge Allen also pointed out the Board actually referenced the 2014 Update in its opinion and The Purple Book (a Board summary of law) discusses the 2014 Update. 

Finally, Judge Allen writes that

In the end, I believe the NAS Updates are constructively before the Board because they have a "direct relationship" to all claims based on Agent Orange exposure…. Moreover, I am cognizant of the burden on the Board that decisions of this Court can impose. I do not mean to open the floodgates for what the Board must consider and I don't believe my position would do so. Not all evidence is the same….  The NAS Updates are unique–more equal than other government reports. We need not decide whether other things could also fall in this special category of animal. But to not recognize the special place of the NAS Updates in the VA benefits process turns a blind eye to reality. I respectfully dissent from the majority's decision in this matter.

Id. at *21.

Legally, Judge Allen’s dissent is powerful and ultimately I think this one will be appealed and possibly overturned.  To find that a report referenced by the Board is not before the Board is a perversion of logic.  However, even if the case is overturned as to the NAS Update, I believe it represents an attack on how cases are typically presented to the Board.  The Court wants to narrowly construe constructive possession and thus reduce the VA’s obligation with regards to a duty to assist (or simply look up a medical treatise).  I can’t believe the VA or Court actually wants advocates or attorneys to start sending in reams of medical treatises to the VA rather than simply giving a citation.  But, until this case is clarified, it appears we are now forced to do just that.

The decision was by Judge Meredith and joined in by Judge Falvey.  Judge Allen wrote a powerful dissent.

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