Sprinkle v. Shinseki

United States Court of Appeals

for the Federal Circuit

______________________

JIMMY R. SPRINKLE,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________

2012-7156

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 10-3231, Judge Alan G. Lance Sr.

______________________

Decided: October 24, 2013

______________________

JOHN F. CAMERON, of Montgomery, Alabama, arguing

for claimant-appellant.

VINCENT D. PAUL PHILLIPS, JR., Trial Attorney, Com-

mercial Litigation Branch, Civil Division, United States

Department of Justice, of Washington, DC, arguing for

respondent – appellee. With him on the brief were

STUART F. DELERY, Principal Deputy Assistant Attorney

General, JEANNE E. DAVIDSON, Director, MARTIN F.

HOCKEY, JR., Assistant Director, and CARRIE A.

DUNSMORE, Trial Attorney. Of counsel on the brief were

DAVID J. BARRANS, Deputy Assistant General Counsel,

2 JIMMY SPRINKLE v. SHINSEKI

and TRACEY PARKER WARREN, Attorney, United States

Department of Veterans Affairs, of Washington, DC.

______________________

Before RADER, Chief Judge, REYNA, and TARANTO, Circuit

Judges.

Opinion for the court filed by Circuit Judge REYNA.

Dissenting opinion filed by Circuit Judge TARANTO.

REYNA, Circuit Judge.

Jimmy Sprinkle appeals a decision of the Court of Ap-

peals for Veterans Claims, which denied his claims for

entitlement to service connection for mitral valve prolapse

and benign familial myoclonus. See Sprinkle v. Shinseki,

No. 10-3231, 2012 U.S. App. Vet. Claims LEXIS 284 (Vet.

App. Feb. 23, 2012). We agree that Mr. Sprinkle was not

denied fair process as it related to responding to a medical

exam ordered by the Board of Veterans’ Appeals

(“Board”). Accordingly, we affirm.

I. BACKGROUND

Mr. Sprinkle served in the U.S. Army from May 13,

1973 until February 19, 1974. While in the service, Mr.

Sprinkle was diagnosed with schizophrenia and pre-

scribed a high dose of Thorazine®. In August 1990,

almost seventeen years after separating from the mili-

tary, Mr. Sprinkle was diagnosed with mitral valve pro-

lapse and chorea, a movement disorder similar to benign

familial myoclonus. After Mr. Sprinkle succeeded in

establishing entitlement to disability compensation before

the Social Security Administration, the Veteran’s Affairs

(VA) Regional Office awarded Mr. Sprinkle a nonservice-

connected pension on April 14, 1993 effective August

1990. On October 26, 2001, Mr. Sprinkle filed an applica-

tion with the VA for entitlement to a service connection

for mitral valve prolapse and myoclonus. Mr. Sprinkle

maintained that he was incorrectly diagnosed with schiz-

JIMMY SPRINKLE v. SHINSEKI 3

ophrenia while in the service and that the high doses of

Thorazine® he received worsened his mitral valve pro-

lapse and caused his myoclonus.

Following an initial medical exam, the Regional Office

concluded that Mr. Sprinkle’s conditions were not service-

connected due to the seventeen-year gap between service

and the onset of his mitral valve prolapse and myoclonus.

In a July 27, 2009 decision, the Board remanded to the

Regional Office for another medical examination to ad-

dress a letter from Mr. Sprinkle’s private physician that

indicated that his conditions were worsened by his in-

service ingestion of Thorazine®. Mr. Sprinkle received a

second VA examination on October 7, 2009, but the Re-

gional Office continued to deny his entitlement to service

connection in a October 21, 2009 Supplemental Statement

of the Case. The Supplemental Statement of the Case

summarized and relied on the medical opinions derived

from the October 7th examination: neither Mr. Sprinkle’s

mitral valve prolapse nor his familial myoclonus was

“caused by or a result of the administration of thorazine

while he was on active duty military service.” Joint App’x

90. Furthermore, Mr. Sprinkle was notified that he had a

period of time (30 days) to respond with additional com-

ments or evidence before his appeal would be returned to

the Board; alternatively, Mr. Sprinkle could request that

the Regional Office return his appeal to the Board prior to

the expiration of the 30-day period. On November 4,

2009, Mr. Sprinkle pursued the latter course by indicating

that he had no other information or evidence to submit

and requesting that his case be returned to the Board as

soon as possible.

On November 13, 2009, the Regional Office sent Mr.

Sprinkle a letter, notifying him that his appeal had been

certified to the Board and that the Regional Office was

transferring all his records to the Board. The letter also

indicated that Mr. Sprinkle had 90 days, or until the

Board issued a decision in his case, to send the Board

4 JIMMY SPRINKLE v. SHINSEKI

additional evidence concerning his appeal. On November

20, 2009, Mr. Sprinkle, now through counsel, responded to

the Regional Office, disagreeing with the conclusions of its

Supplemental Statement of the Case and expressing a

desire to have his appeal returned to the Board. In doing

so, Mr. Sprinkle also requested that “all . . . evidence . . .

obtained by the VA after December 1, 2004,” be sent to

him. Joint App’x 92. This request was broad enough to

include the medical examiner’s October 7, 2009 opinion.

Mr. Sprinkle reiterated his request to the Regional Office

in February and March, 2010. Because the record had

already been sent to the Board, however, each request for

evidence was forwarded by the Regional Office to the

Board. Sprinkle, 2012 U.S. App. Vet. Claims LEXIS 284,

at *3–4.

On May 6, 2010, Mr. Sprinkle’s counsel received 525

pages of documents including the medical examiner’s

October 7, 2009 opinion. 1 Less than thirty days later, on

June 3, 2010, the Board issued its decision denying Mr.

Sprinkle’s entitlement to service connection for his mitral

valve prolapse and benign familial myoclonus. Mr.

Sprinkle appealed to the Court of Appeals for Veterans

1 Mr. Sprinkle notes that the date of the cover letter

accompanying the documents was May 2, 2010, which

was a Sunday. Appellant’s Br. 9 & n.1. He asks this

court to take judicial notice of this fact, ostensibly because

mail is not collected on Sundays and “[t]he date the Board

furnishes a copy [of an opinion is] presumed to be the

same as the date of the letter . . . that accompanies the

copy of the opinion for purposes of determining whether a

response was timely filed.” 38 C.F.R. § 20.903(a). Be-

cause we conclude that § 20.903(a) does not apply to this

case, we see no reason to consider any other date than

May 6, 2010, the date Mr. Sprinkle admittedly received

the documents.

JIMMY SPRINKLE v. SHINSEKI 5

Claims arguing, inter alia, that the Board failed to afford

him fair process in the adjudication of his claims by not

providing him with a copy of the October 7, 2009 medical

examiner’s opinion until fewer than 30 days before the

Board’s decision. The appeals court rejected Mr. Sprin-

kle’s fair process arguments and affirmed the Board’s

decision denying entitlement to service connection. Mr.

Sprinkle timely appealed to this court. We have jurisdic-

tion pursuant to 38 U.S.C. § 7292(a), (c).

II. STANDARD OF REVIEW

According to 38 U.S.C. § 7292(a), this court reviews

decisions of the Court of Appeals for Veterans Claims

with respect to the validity of a decision on a rule of law

or of any statute or regulation or any interpretation

thereof that was relied on in making the decision. §

7292(a). Except to the extent an appeal presents a consti-

tutional issue, this court may not review a challenge to a

factual determination or a challenge to a law or regula-

tion as applied to the facts of a particular case.

§ 7292(d)(2). Accordingly, we review questions of statuto-

ry and regulatory interpretation de novo. Moody v. Prin-

cipi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).

III. DISCUSSION

A. The Regulations

Claims for veterans’ benefits are initially developed

and adjudicated by a VA Regional Office. See 38 U.S.C. §

7105(b)(1), (d)(1). Decisions of the Regional Office are

then reviewed on appeal by the Board. See 38 U.S.C. §

7104(a). To ensure that claimants receive the benefit of

this two-tiered review within the agency, all evidence

relevant to a claim generally must be considered by the

Regional Office in the first instance. Id. Accordingly, the

Regional Office conducts all necessary evidentiary devel-

opment, including obtaining medical examinations and

opinions. 35 U.S.C. § 5103A(d). If the Regional Office

6 JIMMY SPRINKLE v. SHINSEKI

denies a benefit sought, it must provide the claimant

notice of the decision and include “a summary of the

evidence considered by the Secretary.” 38 U.S.C. §

5104(b). And if the claimant disagrees with that denial,

the Regional Office must then prepare a Statement of the

Case that includes “[a] summary of the evidence in the

case pertinent to the issue or issues with which disagree-

ment has been expressed.” 38 U.S.C. § 7105(d)(1); see also

38 C.F.R. § 19.29 (requiring that the Statement of the

Case “be complete enough to allow the appellant to pre-

sent written and/or oral arguments before the Board”).

Any additional evidence that the claimant presents there-

after must be addressed by the Regional Office in a Sup-

plemental Statement of the Case. 38 C.F.R. §§ 19.31(b),

19.37(a).

Congress created a narrow exception to this first-

instance consideration of evidence by the Regional Office,

providing that “when, in the judgment of the Board,

expert medical opinion . . . is warranted by the medical

complexity or controversy involved in an appeal case, the

Board may secure an advisory medical opinion from one

or more independent medical experts who are not employ-

ees of the [VA].” 38 U.S.C. § 7109(a); see also 38 C.F.R. §

20.901(a). Additionally, Congress, and the VA through

the passage of enabling regulations, created a procedural

safeguard to this first-instance evidence gathering by the

Board. Specifically, the Board is required to notify the

claimant that it is requesting an advisory medical opin-

ion; provide the claimant with a copy of the opinion; and

allow the claimant 60 days to respond to the opinion with

evidence or argument. § 7109(c); 38 C.F.R. § 20.903(a).

This case, however, does not implicate this exception. The

Board did not obtain an advisory opinion pursuant to

§ 20.901. Cf. Gambill v. Shinseki, 576 F.3d 1307, 1309

(Fed. Cir. 2009). Instead, it remanded the case for a

medical examination administered by the Regional Office.

JIMMY SPRINKLE v. SHINSEKI 7

In re Sprinkle, No. 05-06 785A, slip op. at 2–3 (B.V.A. Jul.

27, 2009).

Under 38 C.F.R. § 19.9, the Board is required to re-

mand a case to the Regional Office specifying the action to

be taken “[i]f further evidence, clarification of the evi-

dence, correction of a procedural defect, or any other

action is essential for a proper appellate decision.” § 19.9.

Following any additional development of the evidence, the

Regional Office decides whether the record as a whole

supports allowance of the benefits sought. 38 C.F.R. §

19.38. If any benefit sought remains denied, the Regional

Office must issue a Supplemental Statement of the Case

concerning the additional development that informs the

claimant of any material changes in, or additions to, the

information previously considered by the Regional Office.

Id.; 38 C.F.R. § 19.31. The claimant is then given 30 days

to respond to the Supplemental Statement of the Case

before the appeal is returned to the Board. § 19.38. After

the appeal is certified to the Board, the claimant has an

additional 90 days to submit new evidence to the Regional

Office. 38 C.F.R. § 20.1304(a). The question presented by

this case is whether fair process requires that the Board

allow the claimant an additional 60 days to respond to

evidence obtained on remand after the claimant declines

to respond to a summary of that evidence in a Supple-

mental Statement of the Case.

B. Fair Process

In Thurber v. Brown, 5 Vet. App. 119 (1993), the

Court of Appeals for Veterans Claims created what be-

came known as the “fair process” doctrine, holding that,

before the Board relies on any evidence developed or

obtained subsequent to the issuance of the most recent

Statement of the Case or Supplemental Statement of the

Case, the Board must “provide a claimant with reasonable

notice of such evidence . . . and a reasonable opportunity

for the claimant to respond to it.” Id. at 126. The claim-

8 JIMMY SPRINKLE v. SHINSEKI

ant must be permitted to respond with not only argument

and comment, but also provide additional evidence.

Austin v. Brown, 6 Vet. App. 547, 551 (1994).

This court has not explicitly addressed the fair pro-

cess doctrine. See Gambill, 576 F.3d at 1310–11 (discuss-

ing the fair process concerns involved in a denial of the

claimant’s ability to serve interrogatories on a medical

examiner, but concluding that the denial was harmless

error). When the Court of Appeals for Veteran’s Claims

created a procedural right in the name of fair process, the

court primarily relied on the underlying VA adjudicatory

scheme. Gambill, 576 F.3d at 1310. At the time, neither

this court nor the Supreme Court had ruled on the extent

to which applicants for government benefits had a proper-

ty right in their expectation. Thurber, 5 Vet. App. at 123.

Instead, the court premised its holding upon the consider-

ations of fair process announced in Gonzales v. United

States, 348 U.S. 407 (1955). In Gonzales, the Supreme

Court held that despite silence in the applicable statute

and regulations as to a particular procedural require-

ment, the requirement was implicit in the statute and

regulations when “viewed against our underlying concepts

of procedural regularity and basic fair play.” Id. at 412.

Since that time, this court has held the Due Process

Clause of the Constitution applies to proceedings in which

the VA decides whether claimants are eligible for veter-

ans’ benefits. Cushman v. Shinseki, 576 F.3d 1290, 1299–

1300 (Fed. Cir. 2009). In light of this precedent and

Thurber, the question becomes whether the fair process

doctrine applies in this case. We conclude that it does

not.

C. Analysis

By its terms, the fair process doctrine is only triggered

when “evidence [is] developed or obtained by [the Board]

subsequent to the issuance of the most recent [Statement

of the Case] or [Supplemental Statement of the Case]

JIMMY SPRINKLE v. SHINSEKI 9

with respect to such claim.” Thurber, 5 Vet. App. at 126.

In this case, while the Regional Office developed evidence

on remand through a medical examination, it issued a

Supplemental Statement of the Case that provided a

“summary of the evidence in the case pertinent to the

issue or issues with which disagreement has been ex-

pressed,” 38 U.S.C. § 7105(d)(1), and that was “complete

enough to allow the appellant to present written and/or

oral arguments before the [Board],” 38 C.F.R. § 19.29.

Crucially, Mr. Sprinkle has not challenged the adequacy

of the summary. Sprinkle, 2012 U.S. App. Vet. Claims

LEXIS 284, at *4. It follows that the Board did not devel-

op or obtain any evidence subsequent to the issuance of

the most recent Supplemental Statement of the Case.

Indeed, even though Mr. Sprinkle had 30 days to respond

to the Supplemental Statement of the Case, he expressly

notified the VA that he had no other information or

evidence to submit and requested that his case be re-

turned to the Board as soon as possible. Supp. App’x 14.

Because the Regional Office received and considered the

evidence before summarizing it in a Supplemental State-

ment of the Case, this case does not implicate the statuto-

ry exception to the prohibition against first-instance

Board review of evidence that the fair process doctrine is

designed to safeguard.

This case is unlike most other cases that implicate the

doctrine where the Board has obtained an advisory medi-

cal opinion (or treatise) pursuant to § 7109 (and 38 C.F.R.

§ 20.901) and fails to allow the claimant to respond with

additional evidence or interrogatories. E.g., Gambill, 576

F.3d 1307; Thurber, 5 Vet. App. 119. Although this case

involves a medical examination conducted by the Regional

Office on remand, Mr. Sprinkle argues that the fair

process doctrine should be extended to cover it. In partic-

ular, Mr. Sprinkle argues that, in Young v. Shinseki, 22

Vet. App. 461 (2009), the Court of Appeals for Veterans

Claims has extended the fair process doctrine to cases

10 JIMMY SPRINKLE v. SHINSEKI

involving Board remands. Young is distinguishable from

Mr. Sprinkle’s case because Mr. Sprinkle was put on

notice about the substance of the medical report through

the Supplemental Statement of the Case. Also, Mr.

Sprinkle did receive a copy of the medical examination

almost a month before the Board issued its decision. In

Young, the veteran did not even receive a copy of the

medical opinion until after the Board issued its decision.

Young, 22 Vet. App. at 471. Thus, because the Regional

Office in this case considered the medical examination

initially before summarizing it in a Supplemental State-

ment of the Case and there is nothing undermining that

summary, we conclude that the fair process doctrine is not

implicated by this case.

Mr. Sprinkle also argues that the fair process doctrine

requires the Board to provide him with a copy of the

medical examiner’s opinion and allow him 60 days to

respond. Mr. Sprinkle relies on § 20.903(a) to support his

argument for incorporating a 60-day response period into

the fair process doctrine. That regulation, however, is

inapplicable to this case because it only applies to adviso-

ry opinions obtained by the Board pursuant to § 20.901.

See Gambill, 576 F.3d at 1309. Section 20.901 provides

that “[t]he Board may obtain a medical opinion from an

appropriate health care professional in the Veterans

Health Administration . . . on medical questions involved

in the consideration of an appeal when, in its judgment,

such medical expertise is needed for equitable disposition

of an appeal.” § 20.901(a). In this case, the Board re-

manded to the Regional Office to conduct a medical exam-

ination. Sprinkle, slip op. at 2–3. Accordingly, the

pertinent regulations controlling actions by the Regional

Office were §§ 19.31, 19.37, and 19.38. Consistent with

those regulations, the Regional Office issued a Supple-

mental Statement of the Case summarizing the evidence

it obtained on remand and returned the case to the Board

JIMMY SPRINKLE v. SHINSEKI 11

after Mr. Sprinkle indicated that he had no additional

evidence to submit.

While it is regrettable that there was less than 30

days between when Mr. Sprinkle’s counsel received the

medical exam he subsequently requested and when the

Board issued its decision, Mr. Sprinkle was not prejudiced

by any action of the agency. See Gambill, 576 F.3d at

1311 (“Harmless error is fully applicable to veterans’

claims cases, subject to the same principles that apply

generally to harmless error analysis in other civil and

administrative cases.”) (citing Shinseki v. Sanders, 556

U.S. 396, 406 (2009)). Had Mr. Sprinkle not instructed

the Regional Office that he had no additional evidence to

submit and not requested that it immediately return his

appeal to the Board, his record would have remained with

the Regional Office. This would have enabled the Region-

al Office to timely process his subsequent requests for

documents including the medical examiner’s opinion

rather than having to forward those requests to the

Board. Furthermore, Mr. Sprinkle had more than seven

months to offer additional evidence from the date the

Regional Office issued its Supplemental Statement of the

Case to the date when the Board issued its decision. This

vastly exceeds the four months required by the regula-

tions. § 19.38 (30 days); § 20.1304(a) (90 days). Yet Mr.

Sprinkle chose not to respond to the only requirement of

the Regional Office under the regulations: a summary

“complete enough to allow the appellant to present writ-

ten and/or oral arguments before the [Board].” 38 C.F.R.

§ 19.29. Accordingly, Mr. Sprinkle cannot show prejudice

in this case.

IV. CONCLUSION

For the foregoing reasons, we agree with the Court of

Appeals for Veterans Claims’ determination that Mr.

Sprinkle was not denied fair process. We have considered

12 JIMMY SPRINKLE v. SHINSEKI

Mr. Sprinkle’s other arguments and find nothing in them

that upsets our conclusions. Accordingly, we affirm.

AFFIRMED

COSTS

Each party shall bear its own costs.

United States Court of Appeals

for the Federal Circuit

______________________

JIMMY R. SPRINKLE,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________

2012-7156

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 10-3231, Judge Alan G. Lance Sr.

______________________

TARANTO, Circuit Judge, dissenting.

I would vacate the decision of the Court of Appeals for

Veterans Claims and remand the matter for that court to

reconsider its ruling on the non-constitutional “fair pro-

cess” doctrine. The Veterans Court’s discussion leaves

uncertain how it interpreted the doctrine. On this “rule of

law” issue, 38 U.S.C. § 7292(a), it is advisable for the

Veterans Court to provide clarification in the first in-

stance.

Our jurisdictional grant covering this case, 38 U.S.C.

§§ 7292(a), (d)(1), sharply limits what we may decide. Mr.

Sprinkle has not presented a constitutional issue. He has

presented only an argument based on a Department of

Veterans Affairs (VA) regulation, 38 C.F.R. § 20.903(a),

2 JIMMY SPRINKLE v. SHINSEKI

and an argument based on the “fair process” doctrine,

which the Veterans Court derived from the statutory

regime. Without a constitutional challenge before us, we

have no jurisdiction to decide any disputed question of

how the legal standards invoked by Mr. Sprinkle apply to

his particular case. We may decide only whether the

Veterans Court relied on an incorrect view of the legal

standards Mr. Sprinkle invokes. See Munro v. Shinseki,

616 F.3d 1293, 1296 (Fed. Cir. 2010); Forshey v. Principi,

284 F.3d 1335, 1351 (Fed. Cir. 2002) (en banc).

The Veterans Court read 38 C.F.R. § 20.903(a) to ap-

ply only when the Board of Veterans’ Appeals has re-

quested that a medical advisory opinion be furnished

directly to it, not when the Board has remanded the case

for the Regional Office to develop additional medical

evidence, including by providing the claimant a medical

examination. I see no error of law in that reading of the

regulation, considered in its statutory and regulatory

context. With no identified error of law in the interpreta-

tion of the regulation, there is no further role for us in

reviewing Mr. Sprinkle’s regulation-based argument.

With respect to Mr. Sprinkle’s invocation of the “fair

process” doctrine, the Veterans Court left unclear how it

interprets the doctrine. The uncertainties may bear on its

resolution of Mr. Sprinkle’s case. The following undisput-

ed facts frame the legal question: acting under an order of

the Board, the Regional Office gave Mr. Sprinkle a medi-

cal examination, which resulted in a medical report (J.A.

86); it provided him with a Supplemental Statement of

the Case that partly described the report but did not

quote it, and it did not give the report to Mr. Sprinkle (id.

at 89-91); Mr. Sprinkle said that he had no further evi-

dence to submit but then asked, repeatedly, for a large

volume of VA records, a request that included the report

(id. at 92-95, 96, 99); the VA agreed that he was entitled

to the report and furnished it after six months (id. at 103);

one month later, the Board relied on the report, specifical-

JIMMY SPRINKLE v. SHINSEKI 3

ly relying on statements in the report that do not appear

in the Supplemental Statement of the Case (id. at 23-25);

but neither before nor after receiving the requested report

did Mr. Sprinkle ask the Board to postpone its ruling

until he could both see the report and obtain any needed

medical or other consultation to enable him to file an

adequate response to it.

The Veterans Court made very limited points about

the “fair process” doctrine in rejecting Mr. Sprinkle’s

argument that the Board violated the doctrine by relying

on evidence before he had been given a fair opportunity to

respond to that evidence, where he had requested the

evidence and the agency agreed that he was entitled to it.

Sprinkle v. Shinseki, No. 10-3231, 2012 U.S. App. Vet.

Claims LEXIS 284, at *8-10 (Vet. App. Feb. 23, 2012).

The Veterans Court said that this case differed from

Thurber v. Brown, 5 Vet. App. 119 (1993), because here,

unlike in Thurber, the Regional Office issued a Supple-

mental Statement of the Case after the evidence at issue

was developed. Id. at *9. Relatedly, the Veterans Court

stated that Mr. Sprinkle “did, in fact, have the opportuni-

ty to respond after receiving notice of evidence, as he had

a total of 120 days after the [Supplemental Statement of

the Case] was issued to submit new evidence.” Id. at *9-

10. That statement is not about the opportunity to re-

spond in the month after the VA furnished Mr. Sprinkle

the medical report; it is about the opportunity to respond

to the Supplemental Statement of the Case that partly

described the report. Id.

The Veterans Court’s analysis is troublingly incom-

plete about its understanding of the “fair process” doc-

trine. The analysis does not say that “fair process” is

afforded if, but only if, a Supplemental Statement of the

Case tells the claimant everything about the evidence

that having the evidence would disclose. The Veterans

Court may have avoided so limiting its reasoning about

“fair process” because such a limited characterization of

4 JIMMY SPRINKLE v. SHINSEKI

the doctrine might not decide this case: the Board undis-

putedly relied on statements in the medical report that

were not described in the Supplemental Statement of the

Case. See In re Sprinkle, No. 5-06 785A, slip. op. at 6-7

(B.V.A. Jun. 3, 2010); J.A. 90. Similarly, the Veterans

Court did not limit its description of “fair process” to

circumstances in which the evidence itself is turned over

in sufficient time for the claimant to prepare an adequate

response before the Board relies on the evidence in ruling

on a claim. Critically, nowhere did the Veterans Court

say that the month Mr. Sprinkle had after receiving the

medical report was adequate.

The Veterans Court’s brief rationale is broad. It re-

fers simply to the fact that the VA issued a Supplemental

Statement of the Case after the medical report was pre-

pared and thus gave Mr. Sprinkle “notice of evidence,”

though not the evidence itself. Sprinkle, No. 10-3231,

2012 U.S. App. Vet. Claims LEXIS 284, at *9-10. But I

am not prepared to conclude that the Veterans Court

truly adopted so weak a view of what constitutes “fair

process.”

For one thing, the Veterans Court did not discuss the

obvious issues raised by such an understanding. In our

legal system, where a tribunal relies on evidence in a way

that is adverse to a party, it is virtually never sufficient to

have told the party in advance that the evidence exists, or

even to have provided a description of it; the party is

broadly entitled, upon request, to scrutinize the evidence

directly and not be forced to rely on the accuracy or com-

pleteness of another’s description of it. This principle is

fundamental to notions of fair process even in the consti-

tutional context. See, e.g., Greene v. McElroy, 360 U.S.

474, 496 (1959); United States v. Abuhamra, 389 F.3d

309, 322 (2d Cir. 2004); American-Arab Anti-Discrim.

Comm., 70 F.3d 1045, 1070 (9th Cir. 1995). It is hard to

see how it could not be fundamental in a claimant-

friendly adjudicatory system like the one established for

JIMMY SPRINKLE v. SHINSEKI 5

veterans’ benefits. Perhaps in some settings an argument

might be made for withholding evidence from a party

even if the tribunal relies on it. This case involves no

such argument: the government acknowledges that Mr.

Sprinkle was entitled to be given the evidence upon

request.

Uncertainty about the Veterans Court’s understand-

ing of “fair process” is compounded by the difficulty of

seeing how its ruling here squares with what appears to

be the most on-point of its precedents about “fair process,”

Young v. Shinseki, 22 Vet. App. 461 (2009). There, the

VA gave Mr. Young a medical examination in November

2004, which resulted in a medical report, but despite

multiple requests for the report, the VA did not provide it

to Mr. Young before the Board issued its decision in April

2006. The Veterans Court held:

By failing to furnish the appellant a copy of the

2004 medical examination report before the Board

considered and relied on it in the April 2006 deci-

sion, and after the appellant’s multiple requests

for a copy of the report, VA violated the fair pro-

cess principle underlying Thurber v. Brown, 5 Vet.

App. 119 (1993).

Young, 22 Vet. App. at 471-72.

The Veterans Court did not discuss Young in the pre-

sent case. In particular, it did not distinguish the non-

furnishing of the report before the Board made its deci-

sion in Young from the furnishing of the report only one

month before the Board made its decision here. The legal

principle at issue must focus on an adequate opportunity

to prepare a response to evidence before the tribunal

relies on it. As noted, the Veterans Court nowhere said

that the one-month period here was adequate for a proper

response.

6 JIMMY SPRINKLE v. SHINSEKI

It appears, moreover, that in Young, just as in this

case, the VA issued a Supplemental Statement of the

Case after creation of the medical report at issue. Young

does not say otherwise; the governing regulations re-

quired the Regional Office in Young to issue a Supple-

mental Statement of the Case after the medical

examination of Mr. Young, 38 C.F.R. §§ 19.31(c), 19.38;

and the agency is presumed to have followed its regula-

tions, Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir.

2004). When asked at oral argument, Mr. Sprinkle’s

counsel—who also was counsel for Mr. Young—stated

that the Regional Office in Young in fact issued a Sup-

plemental Statement of the Case after the medical exam-

ination at issue. Oral Argument at 6:24-28. And the

government has carefully avoided asserting the contrary,

saying only that the opinion in Young does not address

the question. Brief for the Appellee at 26.

Apart from its discussion of the “fair process” doc-

trine, the Veterans Court included a footnote in its opin-

ion stating that counsel for Mr. Sprinkle misdirected his

requests for records to the Regional Office (rather than

the Board) and did not ask the Board to postpone a deci-

sion while he awaited the medical report or prepared a

response. Sprinkle, No. 10-3231, 2012 U.S. App. Vet.

Claims LEXIS 284, at *4 n.1. The Veterans Court did not,

however, rely on that footnote in its analysis of the “fair

process” doctrine, id. at *9-10, and the footnote says only

that “the Court is troubled by” those facts, id. at *4 n.1.

The footnote therefore leaves unclear whether the Veter-

ans Court’s view of “fair process” incorporates a notion

that the claimant not only must request the evidence at

issue but, for example, must ask for a postponement of a

Board decision until the evidence is in hand for a period

adequate for preparation of a response. The Veterans

Court did not say that it was adopting such a requirement

or discuss the issues relevant to doing so, including what

standards would fit with Young.

JIMMY SPRINKLE v. SHINSEKI 7

In my view, the Veterans Court’s decision about “fair

process” leaves too many questions unanswered to know

precisely what rule of law it adopted in rejecting Mr.

Sprinkle’s claim. Its answers to those questions, moreo-

ver, may well depend on practical considerations regard-

ing the working of the system for adjudicating veterans’

claims for benefits, including how the Board would be

likely to treat a postponement request. It is advisable for

the Veterans Court to address those matters in the first

instance. I would therefore vacate the decision of the

Veterans Court and remand the case.