Lang v. Wilkie

Case: 19-1992 Document: 40 Page: 1 Filed: 08/19/2020

United States Court of Appeals

for the Federal Circuit

______________________

JAMES R. LANG,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee

______________________

2019-1992

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 18-13, Judge Amanda L. Meredith.

______________________

Decided: August 19, 2020

______________________

KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,

KS, for claimant-appellant.

DAVID PEHLKE, Commercial Litigation Branch, Civil

Division, United States Department of Justice, Washing-

ton, DC, for respondent-appellee. Also represented by

ETHAN P. DAVIS, CLAUDIA BURKE, ROBERT EDWARD

KIRSCHMAN, JR.; JONATHAN KRISCH, Y. KEN LEE, Office of

General Counsel, United States Department of Veterans

Affairs, Washington, DC.

______________________

Case: 19-1992 Document: 40 Page: 2 Filed: 08/19/2020

2 LANG v. WILKIE

Before NEWMAN, LOURIE, and O’MALLEY, Circuit Judges.

O’MALLEY, Circuit Judge.

James R. Lang appeals a decision of the United States

Court of Appeals for Veterans Claims (“Veterans Court”)

denying his request that his claim be remanded to the

Board of Veterans’ Appeals (“Board”) for consideration of

whether certain medical records generated by the Depart-

ment of Veterans Affairs Medical Center (“VAMC”) consti-

tute “new and material” evidence relevant to his 1995 claim

for disability compensation. See Lang v. Wilkie, No. 18-

0013, 2019 WL 922532 (Vet. App. Feb. 26, 2019). For the

reasons discussed below, we vacate the decision of the Vet-

erans Court and remand.

I

Lang served in the U.S. Marine Corps from February

1966 to July 1968. Following his service in Vietnam, where

he was badly injured, he received the Purple Heart and

Combat Action Ribbon. In the years since, Lang has expe-

rienced serious, ongoing mental health issues, including

nightmares, hypervigilance, and aggression. Lang sought

psychiatric treatment at the Pittsburgh, Pennsylvania

VAMC. On March 9, 1995, Lang was diagnosed with post-

traumatic stress disorder (“PTSD”). The compensation and

pension examiner explained:

[T]he Veteran from a physical standpoint is perma-

nently and totally disabled from any type of gainful

employment [and] is also socially handicapped to a

severe degree . . . . He has a very severe form of

PTSD that he has treated himself with alcohol

abuse over the years which has only contributed to

other problems. He is riddled by depression and

anxiety as well as the usual host of PTSD symp-

toms . . . . The Veteran from the standpoint of the

PTSD alone is being presented with severe impair-

ments in social and occupational adaptability, not

Case: 19-1992 Document: 40 Page: 3 Filed: 08/19/2020

LANG v. WILKIE 3

to mention the horrendous physical deformities

and disabilities he has sustained in service to his

country.

J.A. 42.

On April 13, 1995, Lang filed a disability compensation

claim for PTSD with the Pittsburgh Regional Office (“RO”)

of the VA. He was granted a 10% disability rating on June

18, 1996 (“1996 rating decision”). Lang did not immedi-

ately appeal the decision. He continued to receive treat-

ment for PTSD at the Pittsburgh VAMC from July 1996 to

June 1997.

On February 5, 2014, Lang filed a motion with the

Pittsburgh RO to revise the 1996 rating decision based on

an assertion of clear and unmistakable error (“CUE”). The

RO denied Lang’s motion in September 2014. Lang ap-

pealed the denial to the Board. In September 2015, the

Board remanded to the RO to further develop the record—

including retrieving VAMC medical records from January

1995 to June 1997. The RO issued a supplemental state-

ment of the case in July 2016 and returned the case to the

Board. The Board declined to revise Lang’s rating decision

based on CUE in September 2017. Lang appealed to the

Veterans Court.

On March 20, 2019, the Veterans Court issued a deci-

sion affirming the Board’s denial of Lang’s request for an

adjustment to the 1996 rating decision. Importantly, the

Veterans Court rejected Lang’s argument that the Board’s

CUE determination was procedurally improper because

the 1996 rating decision had never been final. Lang argued

that VA-generated medical records, created in the year fol-

lowing the 1996 rating decision, were constructively re-

ceived by the VA such that the decision could not be final

until the records were reviewed for new and material evi-

dence under 38 C.F.R. § 3.156(b), which to date they have

not been. The Veterans Court acknowledged that a non-

final decision could not have been subject to CUE review

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4 LANG v. WILKIE

by the Board. The Veterans Court held that the records

were not constructively received, however, because Lang

failed to prove that the “VA had sufficient knowledge of the

VA treatment records . . . to trigger the Board’s duty to

make the requested findings.” Lang, 2019 WL 922532, at

*4 (citing Turner v. Shulkin, 29 Vet. App. 207, 218–19

(2018)). Thus, the Veterans Court found no prejudicial er-

ror in the Board’s failure to address the post-decision med-

ical records.

Lang timely appeals the Veterans Court’s decision as

to the finality of the 1996 rating decision.

II

Our jurisdiction to review decisions of the Veterans

Court is limited by statute to legal questions, such as the

proper interpretation of a statute or a regulation.

38 U.S.C. § 7292(c); Sullivan v. McDonald, 815 F.3d 786,

788–89 (Fed. Cir. 2016). We must “hold unlawful and set

aside any regulation or any interpretation thereof (other

than a determination as to a factual matter) that was relied

upon in the decision of the [Veterans Court]” that we find

to be (1) arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law; (2) contrary to con-

stitutional right, power, privilege, or immunity; (3) in ex-

cess of statutory jurisdiction, authority, or limitations, or

in violation of a statutory right; or (4) without observance

of procedure required by law. 38 U.S.C. § 7292(d)(1). We

review whether the Veterans Court exceeded its jurisdic-

tion, a question of law, de novo. Sullivan, 815 F.3d at 789.

Lang argues that the Veterans Court erred as a matter

of law when evaluating whether post-decision VAMC med-

ical records prevented the 1996 rating decision from becom-

ing final and, thus, prevented a CUE analysis. The

government argues that the Veterans Court lacked juris-

diction to address that issue in the first instance and that,

therefore, we too lack jurisdiction over this appeal. We first

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LANG v. WILKIE 5

address our jurisdiction and then the merits of Lang’s ap-

peal.

A

The government argues that the Veterans Court ex-

ceeded its jurisdiction when it considered Lang’s argument

that the 1996 rating decision is still not final. It is undis-

puted that Lang made this argument for the first time on

appeal to the Veterans Court. Although the government

admits that the Veterans Court has broad discretion to ad-

dress new arguments that were not raised before the

Board, see Maggitt v. West, 202 F.3d 1370, 1378 (Fed. Cir.

2000), it argues that the fact that Lang’s substantive argu-

ment to the Board had been predicated on the assertion of

CUE entirely eliminates the Veterans Court’s discretion to

address Lang’s procedural concern. It also characterizes

Lang’s finality argument as a new CUE claim, which

needed to be addressed by the Board in the first instance.

We disagree.

The government is correct that each allegation of CUE

must be made, with specificity, to the Board for the Veter-

ans Court to exercise jurisdiction over it. See, e.g., Andre

v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (“[E]ach

‘specific’ assertion of CUE constitutes a claim that must be

the subject of a decision by the [Board] before the Veterans

Court can exercise jurisdiction over it.”). Lang’s procedural

argument to the Veterans Court was not, however, a new

claim of CUE. It was an argument that no CUE inquiry

need occur because the 1996 rating decision is not final.

See 38 C.F.R. § 3.105(a) (allowing CUE review of final de-

cisions); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed.

Cir. 2014) (“[U]nder § 3.156(b), the VA must provide a de-

termination that is directly responsive to the new submis-

sion and . . . , until it does so, the claim at issue remains

open.”). As Lang correctly notes, “[t]he Board must estab-

lish the finality of the June 1996 rating decision because

only final decisions are subject to CUE. If there is no final

Case: 19-1992 Document: 40 Page: 6 Filed: 08/19/2020

6 LANG v. WILKIE

decision, there can be no CUE; and the Board would have

been required to dismiss the CUE motion in its entirety.” 1

Appellant’s Reply Br. 2 (citation omitted). The Veterans

Court, therefore, was within its discretion to consider

Lang’s argument. And because the Veterans Court

properly exercised jurisdiction over Lang’s argument, we

have authority to review any underlying legal issues on ap-

peal. See 38 U.S.C. § 7292(c).

B

The VA has a long history of considering documents

that were not literally before an examiner to be construc-

tively part of a claimant’s record. See Bell v. Derwinski,

2 Vet. App. 611, 613 (1992). In Bell, the Veterans Court

held, “where the documents proffered by the appellant are

within the Secretary’s control and could reasonably be ex-

pected to be a part of the record ‘before the Secretary and

the Board,’ such documents are, in contemplation of law,

before the Secretary and the Board and should be included

in the record.” Id.; see also id. (“[B]ecause [the disputed rec-

ords] were clearly generated by the VA, the Secretary had

constructive, if not actual, knowledge of those items.”). Af-

ter Bell, the Secretary issued Office of General Counsel

1 The government argues that if we require the

Board to establish the finality of a decision before applying

the CUE analysis it “will result in massive disruptions to

prior decision[s] and impose an unworkable standard going

forward.” Appellee’s Br. 14. We do not think such a dis-

ruption is likely. The period during which a claim remains

open where new and material evidence is developed is very

short. The requirement that a decision be final before CUE

must be proven is not new, moreover. Any resulting dis-

ruption from a decision requiring the Board to establish it

has authority to complete a CUE analysis is, therefore, a

problem of the Board’s own creation; policing the VA’s own

records for one year post-decision should not be difficult.

Case: 19-1992 Document: 40 Page: 7 Filed: 08/19/2020

LANG v. WILKIE 7

Opinion 12-95, which officially adopted the Bell rule for all

records in the VA’s possession. Vet. Aff. Op. Gen. Couns.

Prec. 12-95, 1995 WL 17875505, at *2 (May 10, 1995). The

Secretary explained that any records created by the VA,

and related to a matter, are constructively part of the rec-

ord for that matter.

Over the years, the Veterans Court has refined the Bell

principle. It has found some documents insufficiently re-

lated to a given matter to fall within the rule. Non-VA doc-

uments, for example, are not generally subject to the Bell

rule and must normally actually be presented to the VA

adjudicator. See Bowey v. West, 11 Vet. App. 106, 108–09

(1998) (holding that mere reference to non-VA documents

is insufficient to incorporate them into a record). And rec-

ords generated by the VA as to one claimant are not nor-

mally constructively part of every claimant’s record. See

Monzingo v. Shinseki, 26 Vet. App. 97, 102 (2012) (“[W]hen

a document is generated by [the] VA, it will not be consid-

ered constructively before the Board in a particular claim-

ant’s case unless the document has a direct relationship to

the claimant’s appeal.”); Goodwin v. West, 11 Vet. App. 494,

496 (1998). The Veterans Court has never, however, re-

quired that a veteran, or anyone else, take affirmative ac-

tion for the veteran’s own VA-generated medical records to

become part of the record.

Recently, in Turner v. Shulkin, 29 Vet. App. 207 (2018),

the Veterans Court considered whether certain documents

created by the VA after a decision are “received” for pur-

poses of 38 C.F.R. § 3.156(b). The regulation, in relevant

part, provides:

New and material evidence received prior to the ex-

piration of the appeal period, or prior to the appel-

late decision if a timely appeal has been filed . . . ,

will be considered as having been filed in connec-

tion with the claim which was pending at the be-

ginning of the appeal period.

Case: 19-1992 Document: 40 Page: 8 Filed: 08/19/2020

8 LANG v. WILKIE

38 C.F.R. § 3.156(b). The Veterans Court held, consistent

with Bell, that certain documents may be constructively re-

ceived by the VA during the one-year period for appeal.

Turner, 29 Vet. App. at 216–17. But, unlike Bell, the

Turner court further held that there must be a “triggering

principle involved.” Id. at 217. It explained:

[C]onstructive receipt in the context of 38 C.F.R.

§ 3.156(b), dealing exclusively with VA treatment

records, requires knowledge by VA adjudicators at

the [Veterans Benefits Administration (“VBA”)] of

the existence of those VA treatment records within

the one-year appeal period. In determining

whether constructive possession has been trig-

gered as to VA treatment records, those records

must have been generated by a VA medical facility

and VA adjudicators at the VBA must have suffi-

cient knowledge that such records exist. In addi-

tion, based on the Federal Circuit’s decision in

Sullivan, VA’s constructive receipt of such records

is not tied to their relevance to the claim.

Id. at 218. As to the knowledge requirement, the Veterans

Court noted that the determination is a factual question

and should be guided by the general principles underlying

the VA’s duty to assist. Id.

Lang argues that Turner, as to the “triggering princi-

ple,” is contrary to established Veterans Court law. We

agree. The Veterans Court provided very little explanation

for its decision to add an additional actual knowledge re-

quirement to the otherwise well-established Bell doctrine

of constructive receipt. It merely stated, “[t]he impact of

applying the correct legal rule on an agency is not a reason

to turn a blind eye to the law. Nevertheless, the practical

impact of a legal rule can certainly frame how that legal

rule is applied.” Id. at 217. It then rejected without expla-

nation Turner’s argument “that constructive receipt of VA

treatment records is, essentially, co-extensive with the

Case: 19-1992 Document: 40 Page: 9 Filed: 08/19/2020

LANG v. WILKIE 9

creation of records by VA” personnel by concluding, “some-

thing more than mere creation is required.” Id. We hold

that the Veterans Court in Turner articulated an erroneous

statement of the law when it failed to adequately address

Bell and its progeny.

The Veterans Court has consistently held, with the

Secretary in full agreement, that, in the context of records

created prior to a decision, all relevant and reasonably con-

nected VA-generated documents are part of the record and,

therefore, constructively known by the VA adjudicator. See

e.g., Bowey, 11 Vet. App. at 108–09; Vet. Aff. Op. Gen.

Couns. Prec. 12-95, 1995 WL 17875505, at *2. The Veter-

ans Court provided no reasoning to support a different test

in the post-decision context. We see none. 2 Thus, while we

agree with the Veterans Court’s conclusion in Turner that

the Bell doctrine of constructive receipt applies to 38 C.F.R.

§ 3.156(b), we hold that records received in the post-deci-

sion context must be evaluated under the same framework

applied to records generated prior to a decision. 3 Evidence

is constructively received by the VA adjudicator post-deci-

sion if it (1) was generated by the VA or was submitted to

the VA and (2) can reasonably be expected to be connected

to the veteran’s claim. 4 See Monzingo, 26 Vet. App. at 101–

2 Although the government argues that we are not

obligated to apply Bell, it does not provide any compelling

reason for us to apply different rules in the two contexts.

3 We note that the government seems to agree with

this understanding of the law of constructive receipt under

Bell and does not seriously defend the Turner court’s “trig-

gering principle.” To the extent the government contends

that we are not bound to follow Bell or bound to extend Bell

to the circumstances of Turner, the government did not

challenge those decisions on appeal.

4 We do not attempt to exhaustively consider the var-

ious circumstances in which a veteran may establish

Case: 19-1992 Document: 40 Page: 10 Filed: 08/19/2020

10 LANG v. WILKIE

02. There is no requirement that the VA adjudicator have

any actual knowledge of the evidence for this principle to

apply.

Applying the principle to this case, Lang’s post-decision

medical records were constructively received by the VA ad-

judicator prior to the expiration of the one-year appeal pe-

riod. Medical records created by the VAMC as a result of

the treatment of a specific veteran are necessarily received

by the VA adjudicator of that veteran’s claims because all

such records can reasonably be expected to be connected to

the veteran’s claims. 5 Cf. Sullivan, 815 F.3d at 793 (hold-

ing that the VA’s duty to assist in retrieving a veteran’s

medical records is not limited to records that are relevant

to a specific claim). A veteran’s own medical records, gen-

erated by the VA itself, are always reasonably related to a

veteran’s claim.

constructive receipt for purposes of 38 C.F.R. § 3.156(b).

The Board and Veterans Court should continue to develop

this area of the law, consistent with Bell and the basic guid-

ance provided in this opinion.

5 The government argues that this rule may intro-

duce uncertainty into the finality of many claims. Appel-

lee’s Br. 31–33. That a correct application of law may

result in additional work for an agency is not a reason to

change the law. Further, a widespread resurrection of

claims is unlikely. Claims will only be subject to further

proceedings if new and material evidence exists in a vet-

eran’s VAMC medical records created in the year following

a decision. Certainly, the VA may be asked with greater

frequency to acquire and review those records. It is likely,

however, that only a small portion of the cases will reveal

new and material evidence. In such cases, it is unquestion-

ably the correct result, both as a matter of policy and the

law, for the veteran to receive the benefit of that additional

evaluation.

Case: 19-1992 Document: 40 Page: 11 Filed: 08/19/2020

LANG v. WILKIE 11

Here, Lang received a decision on his claim on June 18,

1996. It is undisputed that he continued treatment for

PTSD at the Pittsburgh VAMC during the next year, from

June 1996 to June 1997. Any records created by the Pitts-

burgh VAMC as to Lang during that one-year period were

therefore in the possession of the VA and constructively re-

ceived by the VA adjudicator in reference to Lang’s claim

for purposes of 38 C.F.R. § 3.156(b).

A claim, such as Lang’s, remains open until the VA de-

termines whether post-decision evidence received within

the one-year appeal period is “new and material.” See Be-

raud, 766 F.3d at 1407. The Board made no such determi-

nation as to Lang’s post-decision medical records. The

1996 rating decision was, thus, not final and a CUE analy-

sis was not required. See 38 C.F.R. § 3.105(a) (allowing

CUE review of “final” decisions). Given this, the Veterans

Court erred when it declined to remand Lang’s claim to the

Board to review the post-decision VAMC medical records

for new and material evidence.

III

We conclude that a VA adjudicator does not need any

actual knowledge of VAMC medical records to establish

constructive receipt. The well-established Bell rule for

when the VA has constructive knowledge of VA-created

documents contains no such requirement. We hold there is

no legal basis for adding such a requirement in the post-

decision context. Accordingly, we vacate the decision of the

Veterans Court and remand for the Veterans Court to re-

mand this case to the Board for further proceedings con-

sistent with this opinion.

VACATED AND REMANDED

COSTS

Costs to appellant.