Healey: Hypertension, The PurpleBook, and a Reasonably Raised Claim

Healey v. Shinseki, Opinion Number 18-6970, was decided February 24, 2021 and concerns several issues of importance: hypertension and what the Board knows based on the Purple Book and National Academy of Sciences Agent Orange Updates.

The veteran served in Vietnam and sought service connection for hypertension.  The National Academy of Sciences has published a Veterans and Agent Orange: Update 2012 which found a potential connection between hypertension and herbicide.  After the NAS’s report, the Board issued internal guidance in something called The Purplebook which addresses the existence of the NAS report and notes in claims involving hypertension and herbicide exposure, the Board cannot deny a claim without a medical opinion.

The PurpleBook is:

a document that describes itself as "encompass[ing] all Board policies and procedures." Appellant's Br., Exhibit A at 2.5 (Board of Veterans' Appeals, U.S. Dep't of Veterans Affairs, The Purplebook, Version 1.0.0 (March 8, 2018)). Subject to routine updates, it serves as "a repository of guidance for all Board employees on the internal operating processes of the Board" and is meant to "ensure consistency and accountability in the handling of appeals throughout the Board.”

Id. at *4.

A prior case, Euzebio v. Wilkie, 31 Vet. App. 394 (2019) had found the mere existence of the NAS report does not trigger the VA’s duty to obtain a medical opinion.  There, the Court found the NAS report was not constructively before the Board because it did not have a direct relationship with his claim. The Secretary argued Euzebio was dispositive.  However, the Court noted the interceding inclusion of the topic on hypertension and herbicide in The PurpleBook and relied on Overton v. Wilkie, 30 Vet. App. 257 (2018) to find the Board cannot ignore a relevant portion of the VA’s own internal manuals. It noted:

Because the Purplebook provision Mr. Healey cites is relevant to the issue of whether a medical nexus opinion was warranted in these circumstances, the Board erred in not addressing it.  So, irrespective of whether the Purplebook binds the Board, this omission requires that we vacate the decision on appeal and remand for further proceedings.

Id. at *2. 

The Court explained:

Like the M21-1, the Purplebook can be deemed analogous to "agency action" insofar as it constitutes interpretations adopted by the agency, notwithstanding the lack of binding effect. DAV, 859 F.3d at 1075–76. As was the M21-1 for frontline adjudications, the Purplebook was designed to assist Board members and to provide a comprehensive source account of various considerations and procedures that may be relevant to an individual claim or disability. Regardless of whether the Purplebook is binding, the Board's public adoption of it as the repository of its "internal guidelines and procedures," Mason Memo at 1, brings it within Overton's rationale

Id. at *9.

The Court helpfully explained:

In short, where a provision of the Purplebook is relevant to a veteran's appeal, the Board must incorporate a discussion of the relevant provision into its analysis. And even as the Board remains free to determine whether or how to apply such provision, it must provide a reasoned basis for departing from the guidance offered by the provision.

Id. at *10.

Judge Meredith concurred that a remand was necessary, but sought to limit the theory of entitlement raised.  She argued did the Board did not address the veteran’s hypertension and herbicide argument because the veteran did not advance that theory below, but made a secondary service connection argument related to diabetes.  She took the majority to task for assuming the theory was reasonably raised without fully explaining that result and specially focused on her view that a theory need not be addressed if not specifically alleged in that claim stream.

This case is helpful for hypertension cases and shows how to use The PurpleBook on appeal to the Court.  However, Judge Meredith’s evident desire to restrict what has reasonably been raised needs to be squared with what is supposed to be a non-adversarial system designed to maximize a veteran’s claim.  Her viewpoint pushed to its extreme could force veterans to become physicians or at least employ them in order to fully argue their claim.

Opinion by Judge Toth, joined by Judges Allen and Meredith.

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