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The Application Of Precedential Decisions Of The Cavc And The Federal Circuit
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rakkwarrior
In preparing a case to be submitted to the Board of Veterans' Appeals (BVA or Board), one must consider the application and discussion of standing Court precedents. Specifically, pursuant to Title 38 U.S.C. §7104© "The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department."
The Board's mission, as set forth in 38 U.S.C. § 7101(a), is "to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner." The Board's goal is to issue quality decisions in compliance with the requirements of the law, including the precedential decisions of the United States Court of Appeals for Veterans Claims (CAVC) and other federal courts.
Some links have been provided by Hadit regarding VA Fast Letters (FL's) and Training Letters (TL's), however, I did not notice an index of Decision Assessment Documents (DAD's) and other internal circulars which describe how the VA Regional Office's adjudicators may apply Court Precedent. The Board, however, is comprised of Veterans Law Judges and Staff Attorneys who are not necessarily bound to the confines of such legal guidance. However, they may use the quasi-legal material to inform their decision.
The the United States Court of Appeals for Veterans Claims (CAVC) is an Article I Court codified under Chapter 72, Title 38 U.S.C. to decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary; hold unlawful and set aside decisions, findings which are found to be: (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C ) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or( D) without observance of procedure required by law, pursuant to Title 38 U.S.C. § 7261.
This Federal Circuit Court has limited jurisdiction in reviewing the decisions of the CAVC. Their authority is limited to deciding all relevant questions of law, including matters of statutory interpretation. See 38 U.S.C. § 7292(d)(1). We can set aside a regulation or interpretation of a regulation relied upon by the CAVC that we find to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, privilege, or immunity; © in excess of statutory jurisdiction, authority, or limitation, or in violation of a statutory right; or (D) without observance of procedure required by law." Id. In general, however, this court may not review factual determinations or the application of a specific set of facts to a law or regulation. See 38 U.S.C. § 7292(d)(2); Anglin v. West, 203 F.3d 1343, 1345 (Fed.Cir.2000).
The Federal Circuit Court also has authority to review decisions of the Veterans Court regarding the "validity of any statute or regulation or any interpretation thereof" and to "interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292©; see Flores v. Nicholson, 476 F.3d 1379, 1381 (Fed. Cir. 2007). [They] review the interpretation of statutory provisions without deference. Stanley v. Principi, 283 F.3d 1350, 1354 (Fed. Cir. 2002); Howard v. Gober, 220 F.3d 1341, 2007-7306 4 1343 (Fed. Cir. 2000). "In cases where the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of a veteran's claim, we treat the application of law to undisputed fact as a question of law." Conley v. Peake, 543 F.3d 1301, 1304 (Fed. Cir. 2008); see Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008).
In regard to the aforementioned, BVA decisions may not be cited as precedent setting in any instance, and incorporation of specific BVA decisions in individual claims often detracts from the probative value of the claim, namely because the BVA ruled on specific findings of fact to that veteran's case, and while the legal precepts which provided the reasons and basis for the Board's decision offer significant insight into the application of the law, it does not alleviate those citations to have specific bearing on your case.
In a recent February 2009 hearing before the U.S. Senate Committee on Veterans' Affairs Richard Cohen of the NATIONAL ORGANIZATION OF VETERANS' ADVOCATES properly assessed, "In the vast majority of cases, a BVA staff attorney is the first person to review a veteran's claim with even a basic understanding of relevant CAVC case law and its potential application to that claim. RO adjudicators are almost completely untrained in and unaware of CAVC jurisprudence, and the low quality of their decisions reflects this ignorance." I cannot agree more, in most cases, however as noted before, VA Regional Office adjudicators are guided by internal guidance or DAD's.
A precedent decision is a court decision that is cited as an example or analogy to resolve similar questions of law in later cases. Precedent decisions are made by en banc (full bench), or a panel of three or more judges. It is the similarity of the Court's precedent to the individuals case which will compel the Board's persuation on the issue at hand. This means that the legal rules applied to a prior case with facts similar to those of the case now before a court should be applied to resolve the legal dispute.
As a National Service Officer (NSO) of the Disabled American Veterans (DAV), I am accredited to practice VA law as an attorney-in-fact up to the Board of Veterans' Appeals, and currently we are the only organization to have a non-attorney practitioner allowed to practice before the Court. NSO's are internally trained in VA law, we do not require yearly cerification by VA's ridiculous and often inadequate testing, or seek outside assistance from other sources. This is achieved through a 16 month OJT program, and a three year Structured and Continuing Training program which covers not only regulation, and U.S. Code, but also precedent decisions of the CAVC, Federal Circuit, and as it pertains to VA law, Supreme Court Decisions such as that found in Shinseki v. Sanders (2009). The latter training is ongoing and continuous throughout an NSO's career. We use this independent knowledge and precepts of law to prepare briefs in lieu of VA form 646's and supplemental appellate briefs pending before the Board.
Here are some references in assisting the readers in locating Court Precedent:
U.S. CAVC:
http://www.uscourts....ns/Opinions.cfm
The U.S. Court of the Federal Circuit;
http://www.cafc.usco...vc/all/p/p.html
The U.S. Supreme Court: (search "Court of Veterans Appeals")
http://www.supremeco...ket/docket.aspx
It is the Court's review and discussion of relevant case law which will guide successful argument before higher appellate bodies, although I have been known to write briefs to the VARO, I usually constrict these to the confines of the internal Manual provisions, FL's, TL's, and DAD's. I had learned that aggressive posturing only confused the VARO and compelled furtherance of certain cases to BVA.
One thing a claimant must understand is that not all issues will be won at the Regional Office level, some claims are too complxes, or are outside their legal authority to grant. In these cases it is better to prepare for VLJ review than to continue the case going in circles at the VARO, with redundant Statements and Supplemental Statements of the Case (SOC/SSOC's). It is wise to understand when the case can reasonably granted at the RO level, and when it cannot.
*Other VSO's have training programs that I am not completely privy to, but most include training from the NVLSP, NOVA or other attorney groups. I do not disparage other VSO's but do routinely analyze whether or not their methods and prosecution has been effective. I also do not intimate that all DAV NSO's which members of this forum may have encountered are always and infallibly right, or that they correctly demonstrated the organizational values, and mission to the veterans' community. For a bit of candidness, I will tell you it is difficult to recruit for an NSO position, and because we are all disabled, some do not make it, or cannot achieve the level of concentration to maintain the pace at which we are required to initiate, develop, and prosecute claims. I can only say the majority of our staff are dedicated to the mission, and most definitely supervisors want to know if there issues with a staff member.*
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