Atilano v. Wilkie, Case Number 17-1428, decided November 3, 2022 handled a remand from the Federal Circuit regarding whether a Board hearing can be cancelled if the veteran is not in attendance even if the veteran’s representative and an expert witness are there.
As previously summarized, the veteran’s attorney requested a hearing before the Board's central office in Washington, D.C., to present testimony from a licensed psychologist and certified rehabilitation counselor. A hearing date was set but a motion to change the time was granted.
On the day of the hearing, counsel and the certified rehabilitation counselor appeared at the Board's offices without the veteran. The Board member declined to hold the hearing without the veteran stating that the claimant’s participation was legally required. The record was held open for 60 additional days so the expert could submit a report in writing and counsel could do the same with respect to argument. In her duly submitted written report, the expert opined the veteran was, by reason of his PTSD and in light of his educational and occupational history, unable to hold substantially gainful employment between 1995 and 2010. She also stated that, if permitted to testify, she would have defended any challenged conclusions and answered any relevant questions asked by the Board member.
Counsel wrote that the veteran had been unable to attend the scheduled hearing because he was severely disabled and that he believed VA was required to hold the hearing despite the veteran's absence. Counsel further argued that the veteran was prejudiced by the Board member's actions because a written report was inferior to oral testimony.
The Court noted the issue on appeal is "whether an appellant must be present at his or her hearing in order for his or her legal representative to elicit sworn testimony from witnesses before the Board." Id. at *6.
The Veteran’s Court originally reasoned
In short, the overall statutory
structure of section 7107 confirms that an appellant exercising the right to a
Board hearing must participate in that hearing. The appellant has the choice
whether to do so by appearing personally in the presence of the Board member or
by participating remotely via video conference or other electronic means, but
there is no provision allowing an appellant to invoke the right to a hearing
but decline to participate.
However, the decision was appealed to the Federal Circuit and remanded by that Court; however, the Federal Circuit did not clearly rule in favor of the veteran. The Veteran’s Court concluded the Federal Circuit’s analysis was a wholesale repudiation of the Veteran’s Court’s prior analysis. Essentially, the Veteran’s Court found the Federal Circuit held a claimant too disabled to attend a hearing could still invoke the right to a hearing.
Judge Toth wrote a concurrence where he essentially wrote the Federal’s Circuits decision to remand a legal issue as opposed to just find in favor of the veteran was curious. He reasoned:
But the freedom de novo review offers
comes with a price: hard work. The reviewing court has the responsibility to
engage directly with the statute, regulation, or law; decide the legal question;
and show its own reasoning. It cannot merely point out a few errors in a lower
court opinion, send the case back for a do-over, and call it a day. Instead,
the common practice among federal appellate courts is to expend little
bandwidth assessing whether a lower court erred on a particular point of
statutory interpretation and instead take the matter on directly and analyze it
as if no court had ever considered the matter before. See, e.g., George v.
McDonough, 142 S. Ct. 1953 (2022); Gallegos v. Principi, 283 F.3d 1309 (Fed.
Cir. 2002).
Which brings me to the rub of the
matter: appellate courts remand matters to lower courts
when the lower tribunal has authority
to perform some action the higher court cannot. So an appellate court can
reverse a legal ruling and remand a matter for a lower tribunal to carry out ministerial
tasks, or it can remand when there are unresolved issues and the lower tribunal
possesses an authority (e.g., fact finding) that the higher court lacks. By
contrast, when an appellate court has authority to resolve an issue fully,
there's no basis to order a lower court to reconsider a ruling it has already
made merely to suggest the ruling come out differently.
Id. at *7.
This case merely makes clear a very disabled veteran can ask for a hearing and not attend if other evidence is going to be put into the record. It has a limited real world impact, but certainly the way it was handled by the Federal Circuit procedurally aggravated the Veterans Court. I would only add that as an advocate before the Veterans Court, I would request that they also be more willing to make a decision in favor of a veteran rather than almost always remand.
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