Groves: "Pausing" Adjudication and Prejudicial Error

Groves v. McDonough, Opinion Number 17-3084, was decided March 25, 2021 and involves whether a veteran can “pause” adjudication of an issue and the Court’s increasing use of prejudicial error.

The central issue in this case is whether the Board erred in adjudicating the appellant's VRE claim in light of his requests that VA refrain from doing so and in the absence of his reauthorization to do so. With respect to this issue, the Board stated:

The [appellant] has submitted numerous "motions to enjoin" the Board from issuing a decision with regard to the VRE claim. However, these notices do not constitute a withdrawal of the appeal, such that there is no basis for the Board to not proceed with its appellate review of this claim.

Id. at *10.

The Court began by “mak[ing] clear that the appellant's requests that VA refrain from adjudicating his VRE claim did not deprive the Board of jurisdiction to address that claim, because jurisdiction is conferred by statute.”  Id. at *10.

It then determined:

Having found that Hamilton is clear that VA must honor a claimant's request to pause adjudication of his or her claim, a request that the Board found that the appellant in this case made with respect to his VRE claim, we must consider the effect of the Board's error in proceeding prematurely with its adjudication.  In that regard, the Court has already concluded that a request pursuant to Hamilton does not divest the Board of jurisdiction to act.  The question remains whether the Board proceeding without authority renders its decision void ab initio.

Id. at *13.

The Court then pivoted toward a prejudicial error analysis and stated: “Because the Board's procedural error does not render its decision denying the appellant's claim for VRE benefits void ab initio, we must next consider whether the appellant has "alleged with specificity any prejudice that resulted from" the Board's adjudication of his VRE claim.”  Id. at *13.  It then explained:

“neither the appellant nor amici explain how he was harmed by the Board's adjudication of his VRE claim. Although the appellant raises matters of equity, due process, and spoliation of records, the Court finds, as discussed below, that those arguments are unpersuasive; accordingly, they do not serve to establish that the Board's error prejudiced him in any way. Moreover, the appellant does not allege that if he had been afforded additional time prior to the Board's decision, he would have submitted additional evidence or argument that could have affected the outcome of his VRE claim. Cf. Bryant, 33 Vet.App. at 49-50 (finding prejudice where the appellant asserted that he would have submitted argument and evidence if afforded the maximum time to do so). In the absence of demonstrated prejudice, the Court need not remand this matter for the Board to correct its procedural error.”

Id. at *14.

C.J. Bartley wrote a concurrence stating she agreed in result because she did not read Hamilton as creating a procedural tool that allows claimants to indefinitely pause the VA adjudication process at will.  Id. at *19. 

She explained:

as the majority here notes, Hamilton then stated "where, as here, the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative." Id. This sentence has been interpreted as allowing a claimant to suspend VA adjudication at will, and the majority hangs its hat on that quote. However, "[i]t is axiomatic that the language in . . . [any case] must be read in light of the facts and issues that were before the court when the language was written." Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). Because suspension of adjudication wasn't at issue in Hamilton—Mr. Powell merely asked that his three additional claims not proceed with the lung cancer and HD appeals—that case cannot stand for the proposition that VA is required to indefinitely suspend adjudication of a claim at the claimant's will.

Id. at *20.

It appears the Court has reiterated that Hamilton creates a right of a veteran to pause adjudication of an issue.  However, the Court then so dramatically limited prejudicial error as to render the right created by Hamilton seemingly useless.  The import of this case is probably less about Hamilton or VRE, but the Court’s increasing use of prejudicial error to insulate their opinions from effective review.

Opinion by Judge Meredith and joined by Judge Falvey. Dissent by C.J. Bartley.

To know more about whether Thomas Andrews can help you, please visit my website.