Amicus Curiae Brief — Richard D. Simmons, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. 20-1190

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------RICHARD D. SIMMONS,

Petitioner,

v.

DENIS MCDONOUGH,

Secretary of Veterans Affairs,

Respondent.

---------------------------------♦--------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

---------------------------------♦--------------------------------BRIEF OF NATIONAL VETERANS LEGAL

SERVICES PROGRAM AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------STACEY BOSSHARDT

EMILY R. BRAILEY

ZACHARY J. NEWKIRK

Counsel of Record

PERKINS COIE LLP

700 Thirteenth Street, N.W.,

Suite 800

Washington, DC 20005-3960

202.654.6200

SBosshardt@perkinscoie.com

EBrailey@perkinscoie.com

ZNewkirk@perkinscoie.com

Counsel for Amicus Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ......................

1

INTRODUCTION AND SUMMARY OF ARGUMENT ...............................................................

2

ARGUMENT ........................................................

4

I.

II.

The Court should grant the petition to reaffirm the broad scope of the pro-veteran

canon ..........................................................

4

A. This Court has adopted the pro-veteran canon in favor of veterans seeking claims since at least the World War

II era ....................................................

4

B. Courts have consistently used the proveteran canon to benefit veterans .......

7

C. The pro-veteran canon applies to the

VJRA’s requirement that the Board

review all information before it ..........

9

The Court should grant Mr. Simmons’s petition to clarify the reach of Shinseki v.

Sanders and reaffirm the pro-veteran

canon .......................................................... 11

A. Shinseki v. Sanders does not permit

the Veterans Court or the Federal Circuit to avoid the Chenery doctrine, as

each court did here .............................. 11

B. The Federal Circuit’s decision in this

case unjustifiably extends Shinseki v.

Sanders ................................................ 14

CONCLUSION..................................................... 18

ii

TABLE OF AUTHORITIES

Page

CASES

Barrett v. Principi,

363 F.3d 1316 (Fed. Cir. 2004) ..................................6

Bivings v. U.S. Dep’t of Agric.,

225 F.3d 1331 (Fed. Cir. 2000) ................................14

Boone v. Lightner,

319 U.S. 561 (1943) ............................................... 5, 8

Bradley v. Peake,

22 Vet. App. 280 (2008) ...........................................17

Brown v. Gardner,

513 U.S. 115 (1994) ............................................... 5, 8

Coffy v. Republic Steel Corp.,

447 U.S. 191 (1980) ...................................................8

Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275 (1946) ...................................................5

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ............................................... 6, 7

Huston v. Principi,

18 Vet. App. 395 (2004) ..................................... 15, 16

King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991) ........................................... 5, 7, 8

Mayfield v. Nicholson,

444 F.3d 1328 (Fed. Cir. 2006) .................... 14, 15, 17

Morgan v. Wilkie,

31 Vet. App. 162 (2019) ...........................................17

Newhouse v. Nicholson,

497 F.3d 1298 (Fed. Cir. 2007) .......................... 10, 15

iii

TABLE OF AUTHORITIES—Continued

Page

Procopio v. Wilkie,

913 F.3d 1371 (Fed. Cir. 2019) ..................................6

Sanders v. Nicholson,

20 Vet. App. 143 (2005), rev’d and remanded,

487 F.3d 881 (Fed. Cir. 2007) ..................................13

Sec. & Exch. Comm’n v. Chenery Corp.,

318 U.S. 80 (1943) ...................................................14

Sec. & Exch. Comm’n v. Chenery Corp.,

332 U.S. 194 (1947) .................................................14

Shedden v. Principi,

381 F.3d 1163 (Fed. Cir. 2004) ................................13

Shinseki v. Sanders,

556 U.S. 396 (2009) ......................................... passim

Simmons v. Nicholson,

20 Vet. App. 386 (2005), aff ’d and remanded,

487 F.3d 892 (Fed. Cir. 2007) ..................................13

United States v. Oregon,

366 U.S. 643 (1961) ...................................................6

STATUTES

38 U.S.C. § 1116 ............................................................6

38 U.S.C. § 1151 ............................................................7

38 U.S.C. § 5103A.................................................... 6, 11

38 U.S.C. § 5107(b) .............................................. passim

38 U.S.C. § 5109A(a) ...................................................17

iv

TABLE OF AUTHORITIES—Continued

Page

38 U.S.C. § 7104(a) ...................................... 9, 10, 15, 17

38 U.S.C. § 7104(d)(1) ............................................. 9, 15

38 U.S.C. §§ 7251–98 et seq. .........................................3

38 U.S.C. § 7261(b) ......................................................11

38 U.S.C. § 7261(b)(1) ............................................... 6, 9

38 U.S.C. § 7266(a) ........................................................7

Soldiers’ and Sailors’ Civil Relief Act of 1940,

Pub. L. No. 76-861, 54 Stat. 1178 .............................8

Veterans’ Judicial Review Act, Pub. L. No. 100687, 102 Stat. 4105 (1988) .............................. passim

Veterans’ Reemployment Rights Act, 38 U.S.C.

§ 2024(d) ....................................................................8

Vietnam Era Veterans’ Readjustment Assistance

Act of 1974, 38 U.S.C. § 2021 et seq. (1980) ..............8

REGULATIONS

38 C.F.R. § 3.102 .........................................................17

38 C.F.R. § 3.103(a) .....................................................16

38 C.F.R. § 3.105(a)(1).................................................17

38 C.F.R. § 3.159(c) .....................................................16

v

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

James D. Ridgeway, The Veterans’ Judicial Review Act Twenty Years Later: Confronting the

New Complexities of the Veterans Benefits System, 66 N.Y.U. Ann. Surv. Am. L. 251 (2010) ............5

Justice Scalia Headlines the Twelfth CAVC Judicial Conference, Veterans L.J. 1 (Summer

2013), http://www.cavcbar.net/Summer%2020

13%20VLJ%20Web.pdf .............................................7

1

INTEREST OF AMICUS CURIAE1

National Veterans Legal Services Program (“NVLSP”)

is one of the nation’s leading organizations advocating

for veterans’ rights. Founded in 1981, NVLSP is an

independent, nonprofit veterans service organization

recognized by the Department of Veterans Affairs

(“VA”) dedicated to ensuring that the government

honors its commitment to veterans. NVLSP prepares,

presents, and prosecutes veterans’ benefits claims before VA, pursues veterans’ rights legislation, and advocates before this and other courts. As a result of these

efforts, NVLSP has secured more than $5.2 billion in

VA benefits for veterans and their families.

The issues in the petition for certiorari lie at the

core of NVLSP’s experience and expertise. NVLSP has

extensive experience representing veterans before VA

and is intimately familiar with the VA claims process,

the challenges veterans often face raising their claims

with precision, and the challenges of appealing a denial of those claims. NVLSP has a strong interest in

the pro-claimant policy adopted by Congress in the

Veterans Judicial Review Act, among other laws, and

the pro-veteran canon of statutory interpretation.

---------------------------------♦--------------------------------1

The parties were timely notified of the intention to file. The

parties have consented to the filing of this brief. No counsel for a

party authored this brief in whole or in part, and no counsel or

party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

curiae, its members, or its counsel made a monetary contribution

to its preparation or submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

For nearly eight decades, courts have construed

statutes to benefit veterans like Richard Simmons. Mr.

Simmons served in the U.S. Navy from November 1968

to January 1970. While serving, Mr. Simmons was diagnosed with depression. A few years after his service, a Department of Veterans Affairs Regional Office

(“RO”) issued a rating decision denying him a service

connection (i.e., a finding that his condition was related

to his service) for rheumatoid arthritis and anxiety disorder with depressive features. In 2005, Mr. Simmons

unsuccessfully filed a request for revision, claiming

that there was clear and unmistakable error in the

RO’s rating decision.

The Board of Veterans’ Appeals (“Board”) concluded that Mr. Simmons did not suffer an in-service

injury or disease, and therefore denied his claim for

service connection related to his current injury or disease (rheumatoid arthritis and anxiety disorder with

depressive features). Mr. Simmons appealed to the

U.S. Court of Appeals for Veterans Claims (“CAVC”),

which affirmed the Board’s denial of Mr. Simmons’s

request for revision. Though the CAVC found the

Board erred—Mr. Simmons was diagnosed with depression during service—the CAVC nonetheless held

that the Board’s error did not prejudice Mr. Simmons

because, according to the CAVC, Mr. Simmons could

not prove a nexus between his current anxiety diagnosis and his in-service depression diagnosis. The

Federal Circuit affirmed based on this Court’s decision

3

in Shinseki v. Sanders, 556 U.S. 396, 407 (2009). But

the Federal Circuit incorrectly applied Sanders because it did not account for the Board’s failure to apply

all three requirements of the prima facie service connection case.

This Court should grant Mr. Simmons’s petition

for two reasons. First, the Court must reaffirm the broad

scope of the pro-veteran canon, which influenced and

created the backdrop for Congress to pass the Veterans’

Judicial Review Act (“VJRA”), Pub. L. No. 100-687, 102

Stat. 4105 (1988), codified at 38 U.S.C. §§ 7251–98 et seq.

And second, this Court must correct the Federal Circuit’s

misapplication of Shinseki v. Sanders.

This Court should clarify that the longstanding

pro-veteran canon of statutory interpretation continues to apply to all language in the VJRA and all VA

regulations, including the VA’s duty to consider “all information and lay and medical evidence of record in a

case” before it when veterans claim benefits. 38 U.S.C.

§ 5107(b) (emphasis added). This Court’s clarification

will guarantee that the VA, the CAVC, and the Federal

Circuit interpret laws and regulations to fulfill their

essential purpose—protecting the men and women of

the U.S. military who have served their country and

ensuring that their contributions are acknowledged

through the appropriate and just award of benefits for

injuries they sustained as a result of that service.

Relatedly, the Court must clarify the reach of

Shinseki v. Sanders. Sanders instructs reviewing

courts to consider the particulars of each case and

4

allows courts to place the burden of prejudice on the

claimant. 556 U.S. at 407–10. But here, the Federal Circuit relied on Sanders for much more; the court applied

Sanders to a case where the Board had failed to complete its analysis of the prima facie service connection

claim, supplying a missing analytical link. In doing so,

the Federal Circuit affirmed legal analysis performed

in the first instance by the CAVC, not the VA or the

Board. The Chenery doctrine expressly forbids this, requiring reviewing courts to rely on the specific grounds

used by agencies to reach their conclusions. Moreover,

expanding Sanders in this way eviscerates the proveteran canon, which requires the agency and the

courts to aid claimants in developing their claims and

resolving claims in favor of veterans when possible.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Court should grant the petition to reaffirm the broad scope of the pro-veteran

canon.

A. This Court has adopted the pro-veteran

canon in favor of veterans seeking

claims since at least the World War II

era.

As the United States deployed millions of people

in the struggle against the Axis Powers, this Court first

articulated a canon that statutory ambiguity in laws

passed to provide veterans with benefits should always

be resolved in favor of the veteran. In 1943, Justice

5

Robert Jackson remarked that a federal law granting

courts discretion to stay civil cases involving servicemembers must “always . . . be liberally construed to

protect those who have been obliged to drop their own

affairs to take up the burdens of the nation.” Boone v.

Lightner, 319 U.S. 561, 575 (1943). Shortly after World

War II’s conclusion, Justice William Douglas opined

that laws granting benefits to veterans must “be liberally construed for the benefit of those who left private

life to serve their country in its hour of great need.”

Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.

275, 285 (1946).

As both the number of veterans entitled to claim

benefits—and the number of benefit denials—grew

over the course of the twentieth century, legislators,

veterans’ groups, and veterans themselves began to

see the need for judicial review of benefit denials. The

result was the VJRA. According to one commentator,

the legislation’s goal was increased accountability for

veterans’ claims. James D. Ridgeway, The Veterans’ Judicial Review Act Twenty Years Later: Confronting the

New Complexities of the Veterans Benefits System, 66

N.Y.U. Ann. Surv. Am. L. 251, 256 (2010).

The VJRA’s passage increased support and acknowledgment of the pro-veteran canon. In the first

case involving veterans’ benefits that made it to the

Supreme Court after the VJRA’s passage, this Court

reaffirmed that “interpretive doubt is to be resolved in

the veteran’s favor.” Brown v. Gardner, 513 U.S. 115,

117–18 (1994) (citing King v. St. Vincent’s Hosp., 502

U.S. 215, 220–21 n.9 (1991)). Most recently, this Court

6

applied the pro-veteran canon in holding that the

VJRA’s 120-day deadline for filing an appeal with the

CAVC is procedural rather than jurisdictional. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 441

(2011).

The pro-veteran canon this Court formulated

nearly 80 years ago reflects Congress’s longstanding

and deep “solicitude” for veterans. United States v. Oregon, 366 U.S. 643, 647 (1961). “A veteran, after all, has

performed an especially important service for the Nation, often at the risk of his or her own life.” Sanders,

556 U.S. at 412. Indeed, this policy of recognizing service is reflected in the entire veterans benefit system,

which “is imbued with special beneficence from a

grateful sovereign.” Barrett v. Principi, 363 F.3d 1316,

1320 (Fed. Cir. 2004). Congress has required, for example, that the VA must help claimants develop their

claims for benefits. 38 U.S.C. § 5103A; see also Sanders,

556 U.S. at 412 (“VA has a statutory duty to help the

veteran develop his or her benefits claim.”). Congress

has also required a presumption of service connection

for servicemembers who were in the Vietnam War—to

afford them “the benefit of the doubt in the face of scientific uncertainty.” Procopio v. Wilkie, 913 F.3d 1371,

1384 (Fed. Cir. 2019) (O’Malley, J., concurring); see also

38 U.S.C. § 1116. And the VJRA itself commands the

VA to “give the benefit of the doubt to the claimant.” 38

U.S.C. § 5107(b); id. § 7261(b)(1). This Court has recognized that Congress intended to “place a thumb on the

scale in the veteran’s favor.” Henderson, 562 U.S. at

440. The late Justice Antonin Scalia went further,

7

describing the pro-veteran canon as “more like a fist

than a thumb, as it should be.” Justice Scalia Headlines the Twelfth CAVC Judicial Conference, Veterans

L.J. 1 (Summer 2013), http://www.cavcbar.net/Summer

%202013%20VLJ%20Web.pdf.

B. Courts have consistently used the proveteran canon to benefit veterans.

Courts have “long applied the ‘canon that provisions for benefits to members of the Armed Services are

to be construed in the beneficiaries’ favor.’ ” Henderson,

562 U.S. at 441 (quoting King, 502 U.S. at 220–21 n.9).

A review of this Court’s application of the pro-veteran

canon reveals a longstanding commitment to interpreting laws and regulations to benefit veterans.

To cite but a few examples, this Court has:

•

Held that the 120-day deadline to file an appeal with the CAVC, 38 U.S.C. § 7266(a), is

procedural, rather than jurisdictional, reasoning especially “in light of ” the pro veteran

canon, the 120-day deadline did not “carry the

harsh consequences that accompany the jurisdiction tag.” Id.

•

Rejected the Secretary of Veterans Affairs’ argument that statutory silence should be construed to find veterans at fault for injuries

they claim under 38 U.S.C. § 1151. This Court

questioned whether interpreting the federal

statute in the manner advocated by the Secretary “would be possible after applying the

rule that interpretive doubt is to be resolved

8

in the veteran’s favor.” Brown, 513 U.S. at

117–18.

•

Interpreted a provision of the Veterans’ Reemployment Rights Act, 38 U.S.C. § 2024(d), to

impose no time constraints on when a servicemember retains a right to civilian employment after having to leave and serve in the

military. This Court “ultimately read the provision in [the veteran’s] favor under the canon

that provisions for benefits to members of the

Armed Services are to be construed in the

beneficiaries’ favor.” King, 502 U.S. at 220 n.9.

•

Held the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, 38 U.S.C. § 2021

et seq. (1980), required employers bound by a

collective-bargaining agreement to count military service in calculating seniority in awarding supplemental unemployment benefits.

Coffy v. Republic Steel Corp., 447 U.S. 191,

205–06 (1980). The law “is to be liberally construed for the benefit of the returning veteran.” Id. at 196.

•

Acknowledged that the Soldiers’ and Sailors’

Civil Relief Act of 1940, Pub. L. No. 76-861, 54

Stat. 1178, is “always to be liberally construed”

to veterans’ benefit, but granted courts discretion to see that the Act’s provisions “are not

put to such unworthy use” by servicemembers

deliberately shielding their obligations behind the law’s protections. Boone, 319 U.S. at

575.

9

C. The pro-veteran canon applies to the

VJRA’s requirement that the Board review all information before it.

The VJRA governs judicial review of VA decisions

denying individual claims for federal veterans’ benefits. Central to that review is whether the VA considered “all information and lay and medical evidence” in

the record of a claim before it. 38 U.S.C. § 5107(b); id.

§ 7261(b)(1).

The VJRA does not call for the reviewing court—

the CAVC—to consider on its own “all information”

contained in the record. Under the statute’s carefully

calibrated assignment of responsibility, that is a job for

the VA. The VJRA’s command that the VA “shall consider all information” before it is unambiguous. But, to

the extent the CAVC bypasses this statutory requirement and purports to consider all information in place

of the VA, the pro-veteran canon forecloses this overly

broad scope of review that operates against veterans’

interests. Under the VJRA, the CAVC may only review

“the record of proceedings” below and must take into

account the VA’s consideration of “all information and

lay and medical evidence of record in a case” before

it. 38 U.S.C. §§ 5107(b), 7261(b)(1); see also 38 U.S.C.

§ 7104(a) (Board’s decision “shall be based on the entire record in the proceeding and upon consideration of

all evidence and material of record and applicable provisions of law and regulation”); id. § 7104(d)(1) (decision must include “a written statement of the Board’s

findings and conclusions, and the reasons or bases for

10

those findings and conclusions, on all material issues

of fact and law presented on the record.”).

Allowing the CAVC to exceed its defined role under the VJRA violates the pro-veteran canon. To the

extent that previous Federal Circuit decisions hold

otherwise, they are wrong. See, e.g., Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (“The

[VJRA] does not limit the Veterans Court’s inquiry to

the facts as found by the Board.” (emphasis added)).

When the CAVC usurps the role of the VA, it deprives

veterans of full legal review, in the first instance, by

the agency charged with assisting them: the VA. If the

CAVC faces a situation like Mr. Simmons’s where the

VA clearly misapplied governing law and failed to consider all elements of a prima facie case, the VJRA requires remand for further analysis. Doing so aligns

with the pro-veteran canon of statutory interpretation

because it is the VA that must “consider all information

and lay and medical evidence of record,” 38 U.S.C.

§ 5107(b), as well as all “applicable provisions of law

and regulation,” 38 U.S.C. § 7104(a). Under the VJRA,

it is not up to the CAVC to stand in for the VA and consider elements of the prima facie case that the VA did

not analyze.

Requiring the VA to perform its statutorily prescribed role benefits veterans. No longer would veterans need to appeal denial of benefits to the CAVC or

Federal Circuit for the Board’s refusal to consider “all

information.” Appeals, after all, are time-consuming,

costly, and involve courts one or more steps away from

the record. Even more, federal law requires the VA to

11

help claimants develop their claims for benefits. 38

U.S.C. § 5103A. Even if a reviewing court determines

that it can consider no further evidence (as was the

case Mr. Simmons), it is the VA that must make this

determination. The VA, after all, uniquely plays an

advocate role for veterans. Sanders, 556 U.S. at 412

(“[T]he VA has a statutory duty to help the veteran develop his or her benefits claim.”). On the other hand,

neither the CAVC nor the Federal Circuit, in reviewing

the record, are similarly bound to help claimants develop their claims for benefits. 38 U.S.C. § 7261(b)

(limiting scope of CAVC review to “the record of proceedings before the Secretary and the Board”). The VA

is the forum for initial determinations, and remand

back to the VA can only benefit veterans.

II.

The Court should grant Mr. Simmons’s petition to clarify the reach of Shinseki v.

Sanders and reaffirm the pro-veteran

canon.

A. Shinseki v. Sanders does not permit the

Veterans Court or the Federal Circuit

to avoid the Chenery doctrine, as each

court did here.

Here, the Federal Circuit relied on this Court’s decision in Shinseki v. Sanders to affirm the CAVC, but

Sanders is the wrong framework for Mr. Simmons’s

case. Broadly speaking, Sanders prohibits rigid, per

se presumptions of prejudice, and instead instructs

courts to conduct harmless error analyses that consider the contours of the individual case. Sanders, 556

12

U.S. at 407. Sanders did not, however, contemplate

a situation like Mr. Simmons’s where the reviewing

courts applied essential legal principles in the first instance after the Board failed to do so—a clear violation

of the Chenery doctrine and the requirements of the

VJRA, which must be interpreted to benefit veterans.

Sanders involved two civil cases where the VA

denied veterans’ claims for disability benefits. In the

first case, Woodrow Sanders claimed that a bazooka

exploded near his face during service, causing later

blindness in his right eye. Sanders, 556 U.S. at 401–02.

In the second case, Patricia Simmons sought benefits

for hearing loss due to the noisy environment where

she worked during her service. Id. at 404–05. The VA

determined that neither veterans’ current injuries

were linked to the injuries they sustained during service. Id. at 402, 404–05. In both cases, the veterans argued on appeal to the CAVC that they did not receive

proper notice about the additional medical evidence

the VA would have needed to find a service connection.

Id. at 403, 405. In both cases, the Federal Circuit

agreed with the veterans that the notice errors were

not harmless. Id. at 403–04, 405.

This Court “conclude[d] that the Federal Circuit’s

harmless-error framework is inconsistent with the”

VJRA for three reasons. Id. at 414. First, the Federal

Circuit’s framework was too “complex, rigid, and mandatory.” Id. at 407. Second, the framework imposed “an

unreasonable evidentiary burden upon the VA.” Id. at

408. Third, the framework required “the VA, not the

claimant, to explain why the error is harmless.” Id. at

13

409. What Sanders did for veterans’ appeal jurisprudence can be stated simply: it requires the Federal Circuit to take a holistic approach when reviewing these

appeals. This review includes analyzing the particular

facts and evidence of each case and correctly placing

the burden to prove prejudice on the veteran when circumstances dictate.

Sanders applies when the Board considered all

material legal provisions, such as analyzing whether a

claimant met his burden to establish a prima facie

service connection case. In both cases underlying

Sanders—involving Woodrow Sanders and Patricia

Simmons—the Board reviewed all three service connection requirements; it analyzed whether the veterans had a current disability, whether they incurred or

aggravated an injury or disease during service, and

whether there was a nexus between the current injury

or disease and in-service injury or disease. Shedden v.

Principi, 381 F.3d 1163, 1166–67 (Fed. Cir. 2004) (explaining the three requirements to establish service

connection); Sanders v. Nicholson, 20 Vet. App. 143

(2005), rev’d and remanded, 487 F.3d 881 (Fed. Cir.

2007); Simmons v. Nicholson, 20 Vet. App. 386 (2005),

aff ’d and remanded, 487 F.3d 892 (Fed. Cir. 2007). Because the Board—not the reviewing court—completed

the three-pronged service connection legal analysis,

neither appellate court needed to go beyond the

Board’s legal reasoning; the reviewing courts needed

only to review the specific facts and evidence submitted.

14

Thus, in Sanders, this Court had no reason to

address the Chenery doctrine, which prohibits a reviewing court from sustaining “the agency’s ruling on

a ground different from that invoked by the agency.”

Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. Cir.

2006) (citing Sec. & Exch. Comm’n v. Chenery Corp.,

318 U.S. 80, 87 (1943) and Sec. & Exch. Comm’n v.

Chenery Corp., 332 U.S. 194, 196 (1947); see also Bivings v. U.S. Dep’t of Agric., 225 F.3d 1331, 1335 (Fed.

Cir. 2000) (A court “cannot affirm the agency on a theory that, although supported by the record, was not the

basis for the agency’s ruling.”). Sanders’s applicability,

therefore, is limited to cases where the Board has conducted a complete legal analysis, and the reviewing

courts are called upon merely to review the legal effect,

if any, of the lower tribunal’s duly made factual findings.

B. The Federal Circuit’s decision in this

case unjustifiably extends Shinseki v.

Sanders.

The Federal Circuit’s decision pits an unduly

expansive reading of Sanders against the longstanding Chenery doctrine and, in so doing, erodes the

pro-veteran canon. The veterans in Sanders had the

benefit of a Board decision that considered all three

prongs of the prima facie service connection claims.

And because the Board had considered all three elements of the claimants’ prima facie service connection

claims, the Chenery doctrine played no role in Sanders.

In other words, the reviewing courts did not go beyond

15

the legal grounds that the Board considered for denying the veterans’ claims. See Mayfield, 444 F.3d at

1336; cf. Newhouse, 497 F.3d at 1301 (reiterating that

the Chenery doctrine is implicated when the reviewing

court is dealing with a determination or judgment that

the administrative agency must make).

That framework fails when, as here, the Board

does not decide all three prongs of the prima facie service connection claim—and, correspondingly, fails to

consider “all information and lay and medical evidence

of record” before it, or articulate its “reasons and bases”

for its “findings and conclusions” as the VJRA requires.

38 U.S.C. § 5107(b); see also Huston v. Principi, 18 Vet.

App. 395, 402 (2004) (the Board was required to analyze the three prongs required to establish service connection); see also 38 U.S.C. § 7104(a), (d)(1) (requiring

the Board to decide all material issues of fact and law).

Sanders only goes so far as to prohibit per se findings

of prejudice; it does not authorize reviewing courts to

contravene Chenery and make legal conclusions in the

first instance.

In this case, the Board determined that Richard

Simmons did not have an in-service injury or disease,

which presupposed that no nexus could exist between

an in-service injury or disease and a current injury or

disease. But the CAVC found that Mr. Simmons suffered from depression during his service. Had the

Board considered that Mr. Simmons suffered from inservice depression, it might have viewed his current,

documented anxiety diagnosis in a different light. The

Board might have found that a “nexus” exists for

16

purposes of the third prong, or the Board might have

required the VA to further develop the record to better

understand the relationship between Mr. Simmons’s

in-service depression and his current anxiety. Huston,

18 Vet. App. at 403 (“[I]nitial adjudication . . . could

have precipitated further claim-development action

that would have discovered that evidence and resulted

in a favorable determination of his claim. It would be

pure speculation to conclude otherwise.”). Either way,

it was not for the reviewing courts to make the “nexus”

determination in the first instance; Sanders was not

meant to reach this far.

The CAVC should have remanded to the Board

once it determined that Mr. Simmons had met the inservice prong of his service connection claim. 38 U.S.C.

§ 5107(b). Doing so would have forced the Board to consider “all information” as the VJRA requires. Id. Contrary to the Federal Circuit’s order, this remand would

not have been the kind of per se prejudice finding that

Sanders prohibits. Instead, remand would have been

consistent with the pro-veteran canon and the particular facts of this case.

Remand would benefit Mr. Simmons and other

similarly situated veterans who apply for benefits. Under the applicable regulations, all reasonable doubts

are to be resolved in favor of the veteran, and decisions

are rendered in the best interest of the veteran. 38

C.F.R. §§ 3.159(c) (“VA’s duty to assist claimants in

obtaining evidence”), 3.103(a) (VA is obligated to assist

claimant and “render a decision which grants every

benefit that can be supported in law while protecting

17

the interests of the Government”), 3.102 (doubts are

resolved in favor of claimant); see also Morgan v.

Wilkie, 31 Vet. App. 162, 167–68 (2019) (“The Secretary

is required to maximize benefits.” (cleaned up) (quoting

Bradley v. Peake, 22 Vet. App. 280, 294 (2008)). Remand

is also appropriate because the Board was required to

“consider all information and lay and medical evidence

of record in a case before the Secretary with respect to

benefits under laws administered by the Secretary.” 38

U.S.C. §§ 5107(b), 7104(a). Remand is compelled here

because the Chenery doctrine prohibits the CAVC from

sustaining the Board’s ruling based on grounds that

the Board was required to consider but did not. Mayfield, 444 F.3d at 1334. And remand is supported by

many pro-veteran statutes and regulations that require remand at all levels of the claims process. See,

e.g., 38 C.F.R. § 3.105(a)(1) (“Where evidence establishes such error, the prior decision will be reversed or

amended.”); 38 U.S.C. § 5109A(a) (“If evidence establishes the error, the prior decision shall be reversed or

revised.”).

Sanders is not a sea change in the area of veterans’ benefits. Rather, this Court explicitly recognized

the pro-veteran canon, 566 U.S. at 412, but did not

view it as controlling on the facts before it. In addition

to the grounds Mr. Simmons asserted below, this Court

should grant the petition for writ of certiorari to clarify

Sanders’s limited reach and reaffirm the pro-veteran

canon as applied to the VJRA. Sanders does not and

cannot disrupt 80 years of solicitude toward veterans, nor does it permit reviewing courts to sidestep

18

Chenery’s requirement that the VA analyze service

connection factors in the first instance.

---------------------------------♦---------------------------------

CONCLUSION

This Court should grant Mr. Simmons’s petition

for a writ of certiorari and reverse the judgment of the

Federal Circuit with instructions to remand for further

fact-finding.

Respectfully submitted,

STACEY BOSSHARDT

EMILY R. BRAILEY

ZACHARY J. NEWKIRK

Counsel of Record

PERKINS COIE LLP

700 Thirteenth Street, N.W.,

Suite 800

Washington, DC 20005-3960

202.654.6200

SBosshardt@perkinscoie.com

EBrailey@perkinscoie.com

ZNewkirk@perkinscoie.com

Counsel for Amicus Curiae