Veteranclaims’s Blog

July 23, 2014

Federal Circuit’s Application; Veterans Court May Only Consider Evidence before the Board and Secretary

Filed under: Uncategorized — veteranclaims @ 11:57 pm

Excerpt from decision below:
“Because the Veterans Court generally may only consider evidence “before the Secretary and the Board,” the court erred by considering this new evidence in its harmless error analysis. Because of this error, we reverse and remand. But we note that a Regional Office has already adjudicated Mr. Irwin’s TDIU claim, and his appeal from that decision is pending before the Board. On remand, therefore, the Veterans Court should remand to the Board with instructions to assign Mr. Irwin’s pending TDIU appeal its

2 Mr. Irwin also argues that his appeal of the TDIU claim to the Veterans Court divested the VA of jurisdiction while his appeal was pending, rendering the December 2011 TDIU investigation a nullity. Appellant’s Br. 13–18. Because we reverse and remand on other grounds, we do not address this argument.
IRWIN v. GIBSON 7

original docket number and to consider the appeal expeditiously.
See 38 U.S.C. § 7112; 38 C.F.R. § 20.900(a).”
============================
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
______________________
WILLIAM R. IRWIN,
Claimant-Appellant,
v.
SLOAN D. GIBSON,
Acting Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7113
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-683, Judge Robert N. Davis.
______________________
Decided: July 23, 2014
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. On the brief was SEAN A. RAVIN, of Washington, DC.
SHARI A. ROSE, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent appellee.With her on the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting
Director, and SCOTT D. AUSTIN, Assistant Director. Of
2 IRWIN v. GIBSON

counsel on the brief were Y. KEN LEE, Deputy Assistant General Counsel, and RACHAEL T. BRANT, Attorney, United States Department of Veterans Affairs, of Washington,
DC. Of counsel was MICHAEL J. TIMINSKI, Deputy Assistant General Counsel.
______________________
Before NEWMAN, REYNA, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.

William R. Irwin seeks entitlement to a total disability rating based on individual unemployability (TDIU) from a service-connected right knee injury. The Department
of Veterans Affairs and the Board of Veterans’ Appeals initially failed to consider Mr. Irwin’s TDIU claim. Mr. Irwin appealed this failure to the United States Court of Appeals for Veterans Claims, seeking remand to the Board. While Mr. Irwin’s appeal was
pending before the Veterans Court, the VA initiated an investigation into Mr. Irwin’s TDIU claim and presented evidence of this newly opened investigation to the Veterans Court. Relying on this evidence, the Veterans Court ruled that the Board’s previous failure to address Mr. Irwin’s TDIU claim constituted harmless error. Because the Veterans Court generally may only consider the record of proceedings before the VA and the Board, it
erred by considering this new evidence not previously of record. We reverse and remand.

I
Mr. Irwin served honorably on active duty in the
United States Air Force from July 1966 to July 1970. In
January 1987, the Veterans Administration1 granted Mr.
1 The Veterans Administration became the Department
of Veterans Affairs in 1989. We refer to both
entities as the “VA.”
IRWIN v. GIBSON 3

Irwin service connection for synovitis of the right knee but
found that he was not entitled to compensation for his
injury. In January 2004, Mr. Irwin filed a claim for
increased compensation for his knee injury. Six months
later, the VA granted him a 10 percent disability rating
for his injury.
Mr. Irwin appealed to the Board, seeking an increased
rating. The Board denied his request. Mr. Irwin
appealed to the Veterans Court, which vacated the
Board’s decision and remanded his case for further development.
On remand, Mr. Irwin argued that he was
entitled to both an increased rating and TDIU. A Regional
Office conducted a new medical examination but denied
Mr. Irwin’s request for an increased rating. The Regional
Office did not address his claim for TDIU. Mr. Irwin
appealed to the Board. In November 2010, the Board
denied his request for an increased rating but failed to
address his TDIU claim.
Mr. Irwin again appealed to the Veterans Court. In
September 2011, Mr. Irwin filed an opening brief arguing
that he is entitled to an increased disability rating and
that the Board erred by failing to consider his TDIU
claim. In December 2011, the VA filed a responsive brief
acknowledging that the VA erred by failing to consider
Mr. Irwin’s TDIU claim. The VA argued, however, that
the error was harmless, because a Regional Office had
opened an investigation into Mr. Irwin’s TDIU claim a
few weeks before the VA filed its responsive brief.
In January 2012, Mr. Irwin moved to strike this new
evidence of the TDIU investigation because it was not
presented to the Regional Office or the Board. The Veterans
Court granted his motion. After the VA subsequently
suggested that Mr. Irwin’s TDIU claim had become moot,
however, the court granted the VA leave to discuss this
new evidence in a sur-reply.
4 IRWIN v. GIBSON

In February 2012, while Mr. Irwin’s appeal was pending
before the Veterans Court, the Regional Office completed
its TDIU investigation. It found that Mr. Irwin
was not entitled to TDIU. Mr. Irwin separately appealed
that decision to the Board, where it is currently pending.
In February 2013, the Veterans Court affirmed the
Board’s November 2010 decision that Mr. Irwin was not
entitled to an increased disability rating. Irwin v.
Shinseki, No. 11-0683, 2013 WL 627001 (Vet. App. Feb.
21, 2013). Although the court acknowledged that the
Board had erred by failing to consider Mr. Irwin’s TDIU
claim, it held that the error was harmless. Id. It did not
address whether Mr. Irwin’s claim had become moot. Id.
Mr. Irwin appeals the Veterans Court’s harmless error
determination. We have jurisdiction under 38 U.S.C.
§ 7292(c).

II
In this appeal, we must first decide whether Mr. Irwin’s
TDIU claim became moot when the VA instituted a
new TDIU investigation.
The Veterans Court has adopted the “case or controversy”
requirement of Article III. Mokal v. Derwinsky, 1
Vet. App. 12, 13–15 (1990). This means that the Veterans
Court may not decide moot questions. See DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974). A case becomes moot
if “(1) it can be said with assurance that there is no reasonable
expectation . . . that the alleged violation will
recur, and (2) interim relief or events have completely and
irrevocably eradicated the effects of the alleged violation.”
County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
The VA argues that Mr. Irwin’s TDIU claim became
moot when the VA voluntarily opened a new investigation.
According to the VA, this voluntary action “provided
Mr. Irwin with the relief he sought – adjudication of his
claim for entitlement to TDIU.” Appellee’s Br. 18. Mr.
IRWIN v. GIBSON 5

Irwin argues that his claim did not become moot because
a remand by the Veterans Court would entitle him to
expedited adjudication of his TDIU claim. Appellant’s
Reply Br. 11 (citing 38 U.S.C. § 7112 (2012) (providing for
the “expeditious treatment” of claims remanded to the
Board) and 38 C.F.R. § 20.900(a) (2013) (stating that
cases remanded to the Board assume their original places
in the Board’s docket)).
On the record before us, we cannot say that Mr. Irwin’s
appeal is moot. Following oral argument, Mr. Irwin
notified this court that his latest TDIU appeal remains
pending before the Board, that the Board has assigned it
a new docket number, and that the VA has asked the
Board to reassign Mr. Irwin’s appeal the same docket
number as his earlier appeal. Post Arg. Submission Made
at the Req. of the Panel, Irwin v. Gibson, No. 13-7113
(Fed. Cir. June 4, 2014), ECF No. 39. Nothing in the
record reflects that the Board has actually complied with
the VA’s request, and nothing suggests that Mr. Irwin’s
latest appeal will be heard as quickly as his prior appeal
would be heard on remand.
The benefit to Mr. Irwin of having his claim adjudicated
quickly is real. See, e.g., Hayburn’s Case, 2 U.S. (2
Dall.) 409, 410 n.1 (1792) (“[M]any unfortunate and
meritorious [veterans], whom [C]ongress have justly
thought proper objects of immediate relief, may suffer
great distress, even by a short delay, and may be utterly
ruined, by a long one.”). The fact that Mr. Irwin’s Board
appeal would very likely be heard more quickly on remand
means that the VA’s voluntary opening of a new
TDIU investigation has not completely and irrevocably
eradicated the effects of its earlier failure. See, e.g.,
Chadha v. INS, 634 F.2d 408, 418 n.6 (9th Cir. 1980) aff’d
sub nom. INS v. Chadha, 462 U.S. 919 (1983) (noting that
“a case does not become moot during appeal so long as a
party retains a personal stake in the appeal’s outcome”
and holding the relevant appeal not moot because “[t]he
6 IRWIN v. GIBSON

most obvious detriment [to the plaintiff] is that he would
be required to wait longer” for his remedy). Consequently,
Mr. Irwin’s claim is not moot.

III
Turning to the merits, Mr. Irwin argues that the Veterans
Court erred by considering new evidence in finding
harmless error.2 We agree.
The Veterans Court’s review of the merits of a Board
decision is limited by statute to “the record of proceedings
before the Secretary and the Board.” 38 U.S.C. § 7252(b);
see also Shinseki v. Sanders, 556 U.S. 396, 406–07 (2009);
Newhouse v. Nicholson, 497 F.3d 1298, 1301–02 (Fed. Cir.
2007). The parties do not dispute that evidence of the
VA’s December 2011 investigation into Mr. Irwin’s TDIU
claim, and its February 2012 adjudication of the claim,
was not before the Regional Office or the Board. But the
Veterans Court relied on this evidence to find that the
VA’s failure to address Mr. Irwin’s TDIU claim was harmless error. Because the Veterans Court generally may only consider evidence “before the Secretary and the Board,” the court erred by considering this new evidence in its harmless error analysis.
Because of this error, we reverse and remand. But we note that a Regional Office has already adjudicated Mr. Irwin’s TDIU claim, and his appeal from that decision is pending before the Board. On remand, therefore, the Veterans Court should remand to the Board with instructions to assign Mr. Irwin’s pending TDIU appeal its

2 Mr. Irwin also argues that his appeal of the TDIU claim to the Veterans Court divested the VA of jurisdiction while his appeal was pending, rendering the December 2011 TDIU investigation a nullity. Appellant’s Br. 13–18. Because we reverse and remand on other grounds, we do not address this argument.
IRWIN v. GIBSON 7

original docket number and to consider the appeal expeditiously.
See 38 U.S.C. § 7112; 38 C.F.R. § 20.900(a).
REVERSED AND REMANDED

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