holding that “[i]t is not reasonable to expect the Secretary or the Board to have investigated, gathered, and considered... [radiation exposure reports that] were merely referenced in expert opinion letters” because the reports’ connection to the appellant’s case was “too tenuous”
How later courts described this case
- holding that “[i]t is not reasonable to expect the Secretary or the Board to have investigated, gathered, and considered... [radiation exposure reports that] were merely referenced in expert opinion letters” because the reports’ connection to the appellant’s case was “too tenuous”
- holding that mere reference to non-VA documents is insufficient to incorporate them into a record
- warning that to accept that the Board's mere possession of reference materials—"without regard to whether they were, in fact, before the Board or were considered by the Board in reaching its decision"—is sufficient to deem those reference materials constructively before the Board in an individual appellant's claim adjudication would "ill serve the [Court's] orderly review of the decision below and the actual record upon which that decision was based" that 38 U.S.C. § 7252 (b) requires
- framing Bell’s requirement that the evidence be “reasonably expected to be a part of the record” as a ques- tion of whether it is “reasonable to expect the [VA] or the Board to have investigated, gathered, and considered” that evidence and rejecting evidence that was “too tenuous” to be relevant
Written by the judges who cited it.
The opinion
STEINBERG, Judge,
concurring in part and dissenting in part:
The Court’s order is a cogent explication of the Court’s existing precedent and a fair application of that precedent to the Mettler treatise excerpt cited (according to the representations of the parties) in the February 1996 letter from the VA Assistant Chief Medical Director for Public Health and Environmental Hazards. I agree with the Court that the treatise “could not be reasonably expected to be a part of the record before the Secretary or the Board [of Veterans’ Appeals (BVA or Board)]”, ante at 109 within the meaning of Bell v. Derwinski, 2 Vet.App. 611, 613 (1992) (per curiam order), because it would be unreasonable to expect every treatise cited in an expert-opinion statement that is relied upon by the Board to be a part of the proceedings before the Secretary or the Board. However, as to the NIOSH report prepared for the DNA, I believe that that document is encompassed by this Court’s interpretation of 38 U.S.C. § 7252 (b) in Bell and subsequent caselaw relying upon Bell . This case presents an appropriate opportunity for our caselaw to clarify that documents that “could reasonably be expected to be a part of the record ‘before the Secretary and *110 the Board’ ”, Bell, supra, includes more than documents generated directly by VA or proffered to it by the appellant prior to the decision on appeal. On the basis of the ensuing analysis, I would include the NIOSH report in the record on appeal (ROA).
In Bell , the Court indicated that in considering “whether items counter designated by [the] appellant were ‘before the Secretary and the Board’ ... ‘[t]he Court cannot accept the Board being ‘unaware’ of certain evidence, especially when such evidence is in possession of ... VA, and the Board is on notice as to its possible existence or relevance.’ ” Id. at 612 (quoting Murincsak v. Derwinski, 2 Vet.App. 363, 372-73 (1992), and citing Rollins v. Derwinski, 2 Vet.App. 481, 482-83 (1992)). Bell was thus concerned with evidence “in [VA’s] possession” and of which the Board was aware. Subsequent readings of Bell have most often applied its rule to VA-generated documents directly related to the appellant and held that those documents were constructively before the Secretary or the Board. 1 However, the Court has also applied the Bell rule to documents that were not generated by VA but were submitted to it by the appellant. 2 The Bell principle was broadly articulated in Henderson v. Brown, where the Court stated:
When “relevant” documents relating to the appellant’s claim were within the Secretary’s control (for example, records generated by VA or communications received by it) prior to the BVA decision on appeal, and could reasonably have been expected to be part of the record, such documents are “in contemplation of law” constructively part of the record of those proceedings and should be included in the record.
Henderson, 10 Vet.App. 272, 276 (1997) (per curiam order). In keeping with this language, I believe that any document that satisfies these two criteria — one that is (1) within the Secretary’s control and (2) could reasonably have been expected to be part of the record — satisfies Bell .
The NIOSH report proffered by the appellant here shows that it was distributed to many addressees by the DNA in April 1981, including to four VA Medical Centers and what appears to be four VA Central Office officials, including the Chief Benefits Director and an attorney employed by the BVA. 3 Additionally, based on experience in reviewing other cases involving radiation ex *111 posure, 4 I would take judicial notice of the fact that in every case involving a radiogenic disease listed in 38 C.F.R. § 3.311 (b)(2) (1997) in a veteran considered a radiation-exposed veteran by virtue of presence in Hiroshima or Nagasaki, the DNA provides an exposure estimate to VA, pursuant to section 7 of Public Law No. 98-542, 98 Stat. 2725, 2730-31 (1984), and 38 C.F.R. § 3.311 (a)(2)(ii) (1997), of less than one rem and does so based on the NIOSH report. The effect of this estimate is, in essence, to preclude the claimant’s prevailing on a claim involving service connection — unless he can obtain an independent dose estimate 5 — because there is apparently no scientific evidence to connect such low-dose estimates to the development of radiogenic diseases. 6
Hence, in a situation such as this, I find it reasonable to expect the NIOSH report to be. a part of the administrative record in each such case involving a DNA dose estimate based on presence at Hiroshima or Nagasaki and believe that this report is virtually sui generis in terms of such reasonable expectation. In accordance with Bell, supra, the NIOSH report is evidence that appears clearly to have been within the control of the Secretary and/or the Board, 7 and the Board was necessarily on notice not only of its relevance but of its determinative significance. 8 I would thus hold that the report was before the Secretary and the Board in this case.
On the basis of the foregoing analysis, I concur with the Court’s holding that the counter-designated treatise not be included in the ROA but respectfully dissent as to the Court’s exclusion from the ROA of the counter-designated NIOSH report.
.See Blount v. West, 11 Vet.App. 34 (1998) (per curiam order) (including in record on appeal (ROA) reverse side of Department of Veterans Affairs (VA) document already in ROA); Blount v. West, 11 Vet.App. 32 (1998) (per curiam order) (including in ROA two VA-generated documents from appellant’s VA claims file); Lynch v. Gober, 11 Vet.App. 22, 26 (1997) (clarifying that the Bell doctrine is prospective only, but noting that Bell "stands for the principle that, at least for the purpose of determining whether [an ROA] is complete and a case is ripe for judicial review, VA has constructive notice of VA-generated documents that could ‘reasonably’ be expected to be part of the record and that such documents are thus constructively part of the record before the Secretary and the Board [of Veterans’ Appeals (Board or BVA) ] even where they were not actually before the adjudicating body”); Damrel v. Brown, 6 Vet.App. 242, 246 (1994) (assuming Secretary would have constructive knowledge of VA insurance determination but finding constructive knowledge irrelevant because Bell did not operate retroactively); Hulsey v. Principi, 3 Vet.App. 486, 487 (1992) (per curiam order) (including in ROA x-rays made of appellant in VA . facility). But see Gabrielson v. Brown, 7 Vet.App. 36, 41-42 (1994) (Court denied as moot Secretary’s motion to strike materials appended to appellant’s brief, which materials Court did not identify); Caffrey v. Brown, 6 Vet.App. 377, 384 (1994) (Kramer, J., concurring) ("case law of the Court clearly indicates that constructive receipt applies only to VA records”).
. See Simington v. Brown, 9 Vet.App. 334, 335-36 (1996) (per curiam order) (if appellant could corroborate assertion that he had proffered Army documents to VA so as to show that "the documents were, at any time, in the Secretary’s possession, a rebuttable presumption would arise that the disputed evidence was ‘within the control of the Secretary' and should, therefore, be included in the [ROA]”); Cross v. Brown, 9 Vet. App. 18, 19-20 (1996) (per curiam order) (notification of change of address sent to RO, instead of to Board, constructively before Board where Board had ordered RO to ascertain veteran’s address).
. In order to assist the Court in deciding this counter-designation question, I would issue an order directing the Secretary to address the extent to which this report was in this case within the Secretary’s and/or the Board's control.
. See, e.g., Ramey v. Brown, 9 Vet.App. 40, 43 (1996), aff'd sub nom. Ramey v. Gober, 120 F.3d 1239 (Fed.Cir.1997); Douglas v. Derwinski, 2 Vet.App. 103, 106 (1992) (as to "scientific dose reconstruction” referenced in DNA dose estimate), rea ff'd on other grounds, Douglas v. Derwinski, 2 Vet.App. 435, 440-41 (1992) (en banc); Papa v. Brown, 5 Vet.App. 327, 330 (1993) (mem. dec.) (as to "DNA scientific study”); see also Davis v. Brown, 10 Vet.App. 209, 210 (1997); Earle v. Brown, 6 Vet.App. 558, 559-60 (1994).
. See 38 C.F.R. § 3.311 (a)(3) (1997) ("When necessary to reconcile a material difference between an estimate of dose, from a credible source, submitted by or on behalf of a claimant, and dose data derived from official military records, the estimates and supporting documentation shall be referred to an independent expert”); see also Papa, 5 Vet.App. at 332 (mem. dec.) (appellant challenging reliance on Defense Nuclear Agency report required to raise that issue first to BVA).
. See, e.g., Davis, 10 Vet.App. at 211 ; Ramey, supra note 4; Harrison v. Principi, 3 Vet.App. 532, 533-34 (1992). But cf. Sawyer v. Derwinski, 1 Vet.App. 130, 138 (1991) (Steinberg, J., concurring) (referring to National Academy of Sciences report, entitled Health Effects of Exposure to Low Levels of Ionizing Radiation, referred to by appellant in oral argument in case with dose estimate of 4.4 rem).
. See supra note 3.
. See supra note 4.