Veteranclaims’s Blog

October 24, 2013

FedCir. Sprinkle v. Shinseki, No. 2012-7156(Decided: October 24, 2013); Fair Process; Gonzales v. United States, 348 U.S. 407 (1955); Medical Exam Order; 38 C.F.R. § 19.31; § 19.38

Excerpt from decision below:

“B. Fair Process
In Thurber v. Brown, 5 Vet. App. 119 (1993), the Court of Appeals for Veterans Claims created what became 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
JIMMY SPRINKLE v. SHINSEKI 8

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 process doctrine. See Gambill, 576 F.3d at 1310–11 (discussing 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 property right in their expectation. Thurber, 5 Vet. App. at 123.
Instead, the court premised its holding upon the considerations 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 requirement, 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 veterans’ 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. S H I N S E K I 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 expressed,” 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 develop 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 returned 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 Statement of the Case, this case does not implicate the statutory 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 medical 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 particular, 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
JIMMY 10 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 Statement of the Case and there is nothing undermining that summary, we conclude that the fair process doctrine is not implicated by this case.
============================

Dissent by Circuit Judge TARANTO:
Apart from its discussion of the “fair process” doctrine,
the Veterans Court included a footnote in its opinion
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 decision
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 Veterans
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. S H I N S E K I 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, moreover,
may well depend on practical considerations regarding
the working of the system for adjudicating veterans’
claims for benefits, including how the Board would be
likely to treat a postponement request.”
============================

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, Commercial
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,
JIMMY 2 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 Appeals 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 prescribed
a high dose of Thorazine®. In August 1990,
almost seventeen years after separating from the military,
Mr. Sprinkle was diagnosed with mitral valve prolapse
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 nonserviceconnected
pension on April 14, 1993 effective August
1990. On October 26, 2001, Mr. Sprinkle filed an application
with the VA for entitlement to a service connection
for mitral valve prolapse and myoclonus. Mr. Sprinkle
maintained that he was incorrectly diagnosed with schizJIMMY
SPRINKLE v. S H I N S E K I 3

ophrenia while in the service and that the high doses of
Thorazine® he received worsened his mitral valve prolapse
and caused his myoclonus.
Following an initial medical exam, the Regional Office
concluded that Mr. Sprinkle’s conditions were not serviceconnected
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 address
a letter from Mr. Sprinkle’s private physician that
indicated that his conditions were worsened by his inservice
ingestion of Thorazine®. Mr. Sprinkle received a
second VA examination on October 7, 2009, but the Regional
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 comments
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
JIMMY 4 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). Because
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. S H I N S E K I 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. Sprinkle’s fair process arguments and affirmed the Board’s
decision denying entitlement to service connection. Mr. Sprinkle timely appealed to this court. We have jurisdiction 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 constitutional
issue, this court may not review a challenge to a
factual determination or a challenge to a law or regulation
as applied to the facts of a particular case.
§ 7292(d)(2). Accordingly, we review questions of statutory
and regulatory interpretation de novo. Moody v. Principi,
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 development,
including obtaining medical examinations and
opinions. 35 U.S.C. § 5103A(d). If the Regional Office
JIMMY 6 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 disagreement
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 present
written and/or oral arguments before the Board”).
Any additional evidence that the claimant presents thereafter
must be addressed by the Regional Office in a Supplemental
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 employees
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 opinion;
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. S H I N S E K I 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 remand
a case to the Regional Office specifying the action to
be taken “[i]f further evidence, clarification of the evidence,
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 Supplemental
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 became
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 claimJIMMY
8 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 process
doctrine. See Gambill, 576 F.3d at 1310–11 (discussing
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 property
right in their expectation. Thurber, 5 Vet. App. at 123.
Instead, the court premised its holding upon the considerations
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 requirement,
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 veterans’
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. S H I N S E K I 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 expressed,”
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 develop
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 returned
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 Statement
of the Case, this case does not implicate the statutory
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 medical
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 particular,
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
JIMMY 10 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 Statement
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 advisory
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 remanded
to the Regional Office to conduct a medical examination.
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 Supplemental
Statement of the Case summarizing the evidence
it obtained on remand and returned the case to the Board
JIMMY SPRINKLE v. S H I N S E K I 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 Regional
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 regulations.
§ 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 written
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
JIMMY 12 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 process”
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 instance.
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),
JIMMY 2 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 apply
only when the Board of Veterans’ Appeals has requested
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 interpretation
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 undisputed
facts frame the legal question: acting under an order of
the Board, the Regional Office gave Mr. Sprinkle a medical
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 evidence
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, specificalJIMMY
SPRINKLE v. S H I N S E K I 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 Supplemental
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 opportunity
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 respond
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 incomplete
about its understanding of the “fair process” doctrine.
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
JIMMY 4 SPRINKLE v. SHINSEKI
the doctrine might not decide this case: the Board undisputedly
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 refers
simply to the fact that the VA issued a Supplemental
Statement of the Case after the medical report was prepared
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 completeness
of another’s description of it. This principle is
fundamental to notions of fair process even in the constitutional
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 claimantfriendly
adjudicatory system like the one established for
JIMMY SPRINKLE v. S H I N S E K I 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 understanding
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 decision,
and after the appellant’s multiple requests
for a copy of the report, VA violated the fair process
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 present
case. In particular, it did not distinguish the nonfurnishing
of the report before the Board made its decision
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.
JIMMY 6 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 required
the Regional Office in Young to issue a Supplemental
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 regulations,
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 Supplemental
Statement of the Case after the medical examination
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” doctrine,
the Veterans Court included a footnote in its opinion
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 decision
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 Veterans
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. S H I N S E K I 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, moreover,
may well depend on practical considerations regarding
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.

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