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September 22, 2010

Thurber v. Brown, No. 92-172 Simultaneously Contested Claims

Filed under: Uncategorized — Tags: — veteranclaims @ 1:38 pm

“The VA regional office (RO) must provide notice of the right to appeal in regular and in simultaneously contested claims. 38 C.F.R. ùù 19.25, 19.100 (1992). (In simultaneously contested claims, the VARO must provide notice of appeal to other contesting parties. 38 C.F.R. ù 19.102 (1992).) It must provide notification of the filing of an administrative appeal. 38 C.F.R. ù 19.52 (1992). It must furnish a Statement of the Case (SOC) to a claimant, 38 C.F.R. ù 19.30 (1992), which “must be complete enough to allow . . . appellant to present written and/or oral arguments before the [BVA],” 38 C.F.R. ù 19.29 (1992). (In simultaneously contested claims, each interested party must be furnished with an SOC. 38 U.S.C.A. ù 7105A (West 1991); 38 C.F.R. ù 19.101 (1992).)”


No. 92-172

Leslie N. Thurber, Appellant,


Jesse Brown,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals

(Decided May 14, 1993 )

Leslie N. Thurber, pro se.

Robert E. Coy, Acting General Counsel, Norman G. Cooper, Acting
Assistant General Counsel, R. Randall Campbell, Deputy Assistant General
Counsel, and Peter M. Donawick were on the brief for appellee.

Before KRAMER, HOLDAWAY, and STEINBERG, Associate Judges.

KRAMER, Associate Judge: Appellant, Leslie N. Thurber, appeals a
September 27, 1991, decision of the Board of Veterans’ Appeals (Board or
BVA) denying entitlement to service connection for ankylosing spondylitis (
a form of rheumatoid arthritis that affects the spine, Dorland’s
Illustrated Medical Dictionary 1566 (27th ed. 1988)) on the basis that
this condition was not incurred in or aggravated by service. We vacate
the BVA decision and remand the matter.
I. Procedural Background
The BVA, in support of its decision, referenced certain pages of a
medical treatise,
“Daniel J. McCarty, Arthritis and Allied Conditions 819-38 (10th ed. 1985
)” (treatise). R. at 7. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (
1991). (At the time of the issuance of the BVA decision, Hatlestad v.
Derwinski, 3 Vet.App. 213 (1992), which required that the BVA
prospectively quote from, in addition to citing, a medical treatise upon
which it relied, had not yet been issued by the Court.) A timely appeal
to the Court followed.
After the parties designated and counter designated the record, appellant
filed a supplemental counter designation of the record, see U.S. Vet. App.
R. 10, 11, requesting that the Secretary of Veterans Affairs (Secretary)
make available to the Court “the complete medical text” of the treatise.
The Secretary filed a motion to exclude, inter alia, the medical text on
the basis that it was not a part of the record of proceedings or a part of
the claims folder. See Rogozinski v. Derwinski, 1 Vet.App. 19 (1990).
Appellant filed a response to this motion, stating, in pertinent part, ”
This medical text was [referenced] by BVA in [its decision], and thus
became a part of the record before the Board.” Mot. of Appellant at 4.
The Court ordered that copies of the pages of the textbook cited by the
BVA (pages 819-38) be included in the record on appeal. In the order, the
Court also gave appellant an opportunity to show cause why any additional
pages of the textbook should be included in the record on appeal.
Appellant responded to this order, implying that the following pages were
relevant to an understanding of the textbook in the context of his case
and stating as follows:
Pages 15-17 Arthritis syndromes related to HLA B27,
ankylosing spondylitis

Pages 40-52 Differential diagnosis of arthritis, analysis
of signs and symptoms

Page 54 Synovial fluid

Pages 108-110 Radiology of rheumatic diseases,
ankylosing spondylitis, synoviocytes

Page 257 Structure and function of synoviocytes

Page 287 Immune system function

Page 291 Trauma

Page 1089 Trauma and occupation

Pages 1206-1209 Role of trauma

Pages 1249-1250 Spinal injuries
Mot. of Appellant at 1-2.
II. Issue Presented
While the issue presented by the parties is whether the
supplementarily designated text pages should be included in the record on
appeal, the Court views the underlying issue to be whether a claimant is
entitled to notice and an opportunity to respond before the BVA uses a
medical treatise to support its decision.
III. Evidence Obtained by the BVA
A. Medical Opinions
Both the statutory and regulatory schemes contemplate the BVA’s
obtaining expert medical opinions to assist in the adjudication of claims.
Section 7109 of title 38, United States Code Annotated, states:
(a) When, in the judgment of the Board, expert medical opinion,
in addition to that available within the Department [of
Veterans Affairs (VA)], 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 Department.

(b) The Secretary shall make necessary arrangements with
recognized medical schools, universities, or clinics to furnish
such advisory medical opinions at the request of the Chairman
of the Board. Any such arrangement shall provide that the
actual selection of the expert or experts to give the advisory
opinion in an individual case shall be made by an appropriate
official of such institution.

(c) The Board shall furnish a claimant with notice that an
advisory medical opinion has been requested under this section
with respect to a claimant’s case and shall furnish the
claimant with a copy of such opinion when it is received by the
38 U.S.C.A. ù 7109 (West 1991); see also 38 U.S.C.A. ù 5109 (West 1991) (
similar statutory provision authorizing the Secretary, rather than the
Board, to obtain an independent medical opinion). Subsection (a) of
section 7109, title 38, United States Code Annotated, contemplates the
obtaining of an independent medical opinion by the BVA. Subsection (c)
of section 7109 contemplates furnishing the obtained opinion to the
claimant, thus affording more than notice of an intent to obtain, but not
specifically addressing the right of a
claimant to respond to the obtained opinion (see discussion of 38 C.F.R.
ù 20.903 (1992), infra).
In addition, the Secretary has issued regulations that pertain to the
BVA’s obtaining medical opinions. Section 20.901 of title 38, Code of
Federal Regulations, provides:
(a) Opinion of the Chief Medical Director. The Board may
obtain a medical opinion from the Chief Medical Director of the
Veterans Health Administration of the Department of Veterans
Affairs 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.

(Authority: 38 U.S.C. ù 5107(a))

(b) Armed Forces Institute of Pathology opinions. The Board
may refer pathologic material to the Armed Forces Institute of
Pathology and request an opinion based on that material.

(Authority: 38 U.S.C. ù 7109(a))

. . . .

(d) Independent medical expert opinions. When, in the judgment
of the Board, additional medical opinion is warranted by the
medical complexity or controversy involved in an appeal, the
Board may obtain an advisory medical opinion from one or more
medical experts who are not employees of the Department of
Veterans Affairs. Opinions will be secured, as requested by
the Chairman of the Board, from recognized medical schools,
universities, clinics, or medical institutions with which
arrangements for such opinions have been made by the Secretary
of Veterans Affairs. . . .

(Authority: 38 U.S.C. ù 7109)
38 C.F.R. ù 20.901(a), (b), (d) (1992) (Rule 901). These regulations,
promulgated, as stated in the regulations, under the authority of both 38
U.S.C.A. ù 7109 and 38 U.S.C.A. ù 5107(a) (West 1991) (“The Secretary
shall assist a claimant [who submits a well-grounded claim] in developing
the facts pertinent to the claim”), contemplate obtaining both VA and non-
VA opinions. Although perhaps broader in scope than ù 7109 standing
alone because of the non-independent, VA opinion provision (assumed but
not specifically authorized by ù 7109)
in section 20.901(a), Rule 901(a) is certainly a valid promulgation in
view of the Secretary’s reliance on ù 5107(a). Moreover, authority for
the VA opinion provision is provided under the unreferenced authority of
38 U.S.C.A. ù 501(a) (West 1991) (“The Secretary has the authority to
prescribe all rules and regulations which are necessary or appropriate to
carry out the laws administered by the [VA] and are consistent with those
laws, including . . . regulations with respect to the nature and extent
of proof and evidence . . .; the methods of making . . . medical
examinations; and . . . the manner and form of adjudications . . .”).
Furthermore, 38 C.F.R. ù 20.903 (1992) (Rule 903) provides for both
notice of and an opportunity to respond to an opinion obtained by the BVA
pursuant to Rule 901:
When an opinion is requested by the Board pursuant to Rule 901 (
ù 20.901 of this part), the Board will notify the appellant
and his or her representative, if any. When the opinion is
received by the Board, a copy of the opinion will be furnished
to the appellant’s representative or[,] subject to the
limitations provided in [38 U.S.C.A. ù 5701(b)(1), not
pertinent here], to the appellant if there is no representative
. A period of 60 days from the date of mailing of a copy will
be allowed for a response. . . .

(Authority: 38 U.S.C. ù 7109(c)).
Rule 903 applies to both independent and VA opinions, but cites only to
the authority of ù 7109(c) for its promulgation, which, in turn, as
indicated, supra, perhaps specifically applies only to independent
opinions. Unquestionably, however, the VA has ample additional authority
to include VA opinions within the scope of Rule 903. See discussion of
38 U.S.C.A. ù 5107(a), part III.C.ii., infra, and ù 501(a), supra.
B. Medical Treatises
Unlike the BVA’s obtaining of medical opinions, part III.A., supra,
neither the statutory nor regulatory schemes specifically authorize the
BVA’s use of medical treatises. However, the Court, in Colvin, 1 Vet.App.
at 175, held, as relevant to this issue, that
BVA panels may consider only independent medical evidence to
support their findings. If the medical evidence of record is
insufficient, or, in the opinion of the BVA, of doubtful weight
or credibility, the BVA is always free to supplement the record
by . . . citing recognized medical treatises in its decisions
clearly support its ultimate conclusions. See [38 U.S.C.A.
ù 7109 (West 1991)]; Murphy v. Derwinski, 1 Vet.App. 78, 81 (
(Emphasis added.) Subsequent to the Court’s decision in Colvin and the
issuance of the BVA’s decision here on appeal, as indicated in part I.,
supra, the Court held that, prospectively, if the BVA relies on a portion
of a medical treatise in arriving at its decision, the BVA must quote the
relevant portions upon which it relies, and that “such quotations should
be of sufficient length so that their context (both within the treatise in
question and within the body of relevant literature) is able to be
determined.” Hatlestad, 3 Vet.App. at 217. Under present law, however,
if the BVA so relies on a treatise, it is not required, prior to issuing
its decision, to provide appellant either a copy of the part of the
treatise relied upon or an opportunity to respond. Although Colvin and
Hatlestad, supra, may have anticipated that such procedural rights would
be afforded a claimant when medical treatise evidence was directly or
indirectly made a part of the record before the Board, such issues were
not specifically presented and thus those opinions did not address these
process questions directly.
IV. Rights to Notice and Opportunity to be Heard
A. Constitutional Considerations
While it is true that the case on appeal involves a claim for a
benefit rather than a termination of a benefit, certain due process
principles relating to the latter are worth noting. The due process
clause of the Fifth Amendment of the United States Constitution requires
that when an individual is to be deprived of a property interest as a
result of federal government action, the aggrieved party must be provided
with notice and an opportunity to be heard. See Mathews v. Eldridge, 424
U.S. 319, 333 (1976); Fugere v. Derwinski, 1 Vet.App. 103, 108 (1990).
Opportunity to be heard must be accorded “‘at a meaningful time and in a
meaningful manner.'” Mathews 424 U.S. at 333 (citations omitted). The
termination of a veteran’s benefit is an example of such a property
It is now well recognized that “the interest of an individual
in continued receipt of [Social Security disability] benefits
is a statutorily created ‘property’ interest protected by the
Fifth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (
. . . The Supreme Court has noted that veterans benefits,
entitlement to which is established by service to country at
great personal risk, are “akin to Social Security benefits.”
Walters v. National Assoc. of Radiation Survivors, 473 U.S.
305, 333 (1985). . . .
Fugere, 1 Vet.App. at 108; see Devine v. Cleland, 616 F.2d 1080 (9th Cir.
1980) (VA educational assistance allowance constitutes a property right
protected by the Fifth Amendment due process clause); Plato v. Roudebush,
397 F.Supp. 1295 (D. Md. 1975) (veteran’s widow’s benefits constitute a
property right protected by the Fifth Amendment due process clause).
Although the Supreme Court has not yet ruled on the extent to which
applicants for, rather than recipients of, government benefits have
property rights in their expectations, see Lyng v. Payne, 476 U.S. 926,
942 (1986); Walters v. Nat’l Assoc. of Radiation Survivors, 473 U.S. at
312, some lower federal courts have accorded due process rights to
applicants. See, e.g., Ressler v. Pierce, 692 F.2d 1212, 1214-16 (9th
Cir. 1982) (applicant for federal rent subsidies); Kelly v. R.R.
Retirement Bd., 625 F.2d 486, 489-90 (3d Cir. 1980) (applicant for
disabled child’s annuity under Railroad Retirement Act); Butland v. Bowen,
673 F.Supp. 638 (D.Mass. 1987) (applicant for social security disability
benefits); Dealy v. Heckler, 616 F.Supp. 880, 884-86 (W.D.Mo. 1984) (
applicant for social security disability benefits); but see, e.g., Lozano
v. Derwinski, 1 Vet.App. 184, 186 (1990); Hill v. Group Three Housing
Development Corp., 799 F.2d 385, 391 (8th Cir. 1986); Eidson v. Pierce,
745 F.2d 453, 460 (7th Cir. 1984); Overton v. John Knox Retirement Tower,
Inc., 720 F.Supp. 934 (M.D.Ala. 1989).
Because of the silence of the applicable statute and regulations
regarding notice and opportunity to be heard, Gonzales v. United States,
348 U.S. 407 (1955), is worthy of note. In Gonzales, the petitioner
appealed his conviction for refusing to submit to induction into the armed
forces. He argued that his classification was invalid because he had not
been provided a copy of, and accorded an opportunity to reply to, the
recommendation of the Department of Justice (DOJ) denying conscientious
objector classification which DOJ had submitted to the Selective Service
Appeal Board. The Supreme Court, noting that the applicable statute and
regulations were silent on the matter, held that it was implicit in them
“– viewed against our underlying concepts of procedural regularity and
basic fair play — that a copy of the recommendation . . . be furnished
the registrant at the time it is forwarded to the Appeal Board, and that
he be afforded an opportunity to reply.” Id. at 411-12.
Finally, in the criminal setting, the government has a constitutional
obligation to disclose material evidence favorable to the defendant. See
United States v. Bagley, 473 U.S. 667 (1985); see also Brady v. Maryland,
373 U.S. 83 (1963); United States v. Agurs, 427 U.S. 97 (1976).
B. VA Claims Adjudication Overview
The entire thrust of the VA’s nonadversarial claims system is
predicated upon a structure which provides for notice and an opportunity
to be heard at virtually every step in the process. The Secretary shall
provide notice of a decision regarding a claim for benefits and “an
explanation as to the procedure for obtaining review of that decision.”
38 U.S.C.A. ù 5104(a) (West 1991); see Rosler v. Derwinski, 1 Vet.App.
241, 249 (1991). “Each appellant will be accorded hearing and
representation rights pursuant to the provisions of [38 U.S.C.A. Chapter
71 (West 1991)] and regulations of the Secretary.” 38 U.S.C.A. ù 7105(a) (
West 1991). The VA regional office (RO) must provide notice of the right
to appeal in regular and in simultaneously contested claimsNext Hit. 38 C.F.R.
ùù 19.25, 19.100 (1992). (In Previous Hitsimultaneously contested claimsNext Hit, the VARO
must provide notice of appeal to other contesting parties. 38 C.F.R. ù
19.102 (1992).) It must provide notification of the filing of an
administrative appeal. 38 C.F.R. ù 19.52 (1992). It must furnish a
Statement of the Case (SOC) to a claimant, 38 C.F.R. ù 19.30 (1992),
which “must be complete enough to allow . . . appellant to present written
and/or oral arguments before the [BVA],” 38 C.F.R. ù 19.29 (1992). (In
Previous Hitsimultaneously contested claimsNext Document, each interested party must be furnished
with an SOC. 38 U.S.C.A. ù 7105A (West 1991); 38 C.F.R. ù 19.101 (1992
).) A Supplemental SOC (SSOC) is required when an appellant submits
additional evidence to the VARO prior to the transfer of appellant’s
records to the BVA, 38 C.F.R. ù 19.37(a) (1992), and when a BVA remand of
a case to the VARO results in additional evidentiary or procedural
development and continuation of the denial of benefits, 38 C.F.R. ù 19.
38 (1992); see generally 38 C.F.R. ù 19.31 (1992); “a period of 60 days
. . . will be
allowed for response,” 38 C.F.R. ù 20.302(c) (1992) (but only 30 days,
in the case of a simultaneously contested claim, 38 C.F.R. ù 20.501(c) (
1992)). If the BVA questions the adequacy of appellant’s substantive
appeal, appellant is provided “notice . . . and a period of 60 days . . .
to present written argument or to request a hearing to present oral
argument.” 38 C.F.R. ù 20.203 (1992). The Board shall decide an appeal ”
only after affording the claimant an opportunity for a hearing.” 38 U.S.C.
A. ù 7104(a) (West 1991). In connection with the right to a hearing, a
claimant has the right to present evidence, testimony, and argument in
support of a claim. 38 C.F.R. ù 20.700 (1992). A claimant has the right
to notification of the time and place of the hearing on appeal. 38 C.F.R.
ù 20.702(b) (1992). A claimant has the right to notification of the
certification of appeal and transfer of the appellate record to the BVA.
38 C.F.R. ù 19.36 (1992). If a “Travel Board” hearing is held, a
claimant must be notified of its time and place. 38 C.F.R. ù 19.76 (1992
). When a “Travel Board” hearing is requested, a claimant must be
furnished with an SOC if not previously furnished. 38 C.F.R. ù 19.77 (
1992). “After reaching a decision in a case, the Board shall promptly
mail a copy of its written decision to the claimant. . . .” 38 U.S.C.A.
ù 7104(e) (West 1991). A claimant is entitled to a hearing if a motion
for reconsideration of a final BVA decision is granted. 38 C.F.R. ù 20.
1003 (1992). The BVA may vacate an appellate decision which denies “due
process of law” upon the request of appellant, or on the BVA’s own motion.
38 C.F.R. ù 20.904 (1992).
C. Special Provisions
i. 38 C.F.R. ù 3.103 (1992)
Subsection (d) of 38 C.F.R. ù 3.103, which is entitled “Procedural
due process and appellate rights,” states:
(d) Submission of evidence. Any evidence whether documentary,
testimonial, or in other form, offered by the claimant in
support of a claim and any issue a claimant may raise and any
contention or argument a claimant may offer with respect
thereto are to be included in the records.
This subsection requires that all evidence, issues, contentions, and
arguments advanced by a claimant must be “included in the records.” Id.
For the provision to have meaningful
effect necessitates that there must be reasonable notice of the right to
advance, and a reasonable opportunity to so advance, such evidence, issues,
contentions, and arguments.
ii. Duty to Assist
As indicated in part III.A., supra, once a claimant has submitted a
well-grounded claim, the Secretary has a duty to “assist such claimant in
developing the facts pertinent to the claim.” 38 U.S.C.A. ù 5107(a);
see 38 C.F.R. ù 3.159 (1992); Moore v. Derwinski, 1 Vet.App. 401, 405-06 (
1991) (duty to assist includes the providing of complete and thorough
medical examinations that address a claimant’s complaints); EF v.
Derwinski, 1 Vet.App. 324, 326 (1991) (duty to assist extends to requiring
that “the BVA must review all issues which are reasonably raised from a
liberal reading of” all documents or oral testimony submitted prior to a
BVA decision); Murphy v. Derwinski, 1 Vet.App. at 82 (duty to assist
extends to the securing of any relevant military, VA, or other government
records or, with appellant’s cooperation, private medical, hospital,
employment, or other civilian records).
D. The Administrative Procedure Act
The history of the applicability of the rulemaking provisions of the
Administrative Procedure Act (APA) to the VA is well stated in the
Court’s decision in Fugere, 1 Vet.App. at 107-08:
By regulation in effect since 1972 the VA, as a matter of
policy, has voluntarily embraced the provisions of the APA:

It is the policy of the Department of Veterans Affairs to
afford the public general notice, published in the
Federal Register, of proposed regulatory development, and
an opportunity to participate in the regulatory
development in accordance with the provisions of the [APA
]. All written comments received will be available for
public inspection . . . .

38 C.F.R. ù 1.12. . . .

. . . .

[T]he types of VA materials that must conform to this
procedure . . . . [are] agency issuances that confer a
right, privilege, or benefit, or impose a duty or
obligation on VA beneficiaries or other members of the
public. Where VA issuances fail to meet the applicable
notice and comment requirement, the issuance may be
invalid, even though fully within the authority of the [

Op. G. C. Mem. (VA July 1, 1987).
The Court in Fugere went on to point out that the VA’s adoption of the
APA’s notice and comment requirement was codified, effective September 1,
1989, as part of the Veterans’ Judicial Review Act (VJRA) ù 102(a), at 38
U.S.C.A. ù 501(c), (d) (West 1992). The Court has not addressed the
issue of the applicability of the APA to the VA adjudication process, and
we express no opinion in this decision. See 5 U.S.C.A. ùù 554, 556(d), (
e) (West 1990 & Supp. 1993); but see United States Lines v. Federal
Maritime Comm’n, 584 F.2d 519, 536 (D.C. Cir. 1978) (adjudication
provisions “do not apply unless Congress has clearly indicated that the
‘hearing’ required by statute must be a trial-type hearing on the record
“); Barefield v. Byrd 320 F.2d 455, 457 (5th Cir. 1963) (VA Administrator (
now Secretary) is not bound to conform to APA provisions since title 38 of
the United States Code does not require adjudications “to be determined on
the record after opportunity for an agency hearing”). The Court notes,
however, that the legislative history of the VJRA indicates that, while
the Senate bill would have provided additional statutory rights with
respect to notice and an opportunity to be heard, the compromise agreement
adopted the Senate position only with respect to hearings before traveling
sections of the BVA, preferring, in general, to rely on existing “informal
procedures” and “fundamental . . . due process rights,” and specifically
stating “that the title 5 procedures relating to adjudications continue to
be inapplicable.” See Explanatory Statement, 100th Cong., 2d Sess. (1988
), reprinted in 1988 U.S.C.C.A.N. 5842-44. Nevertheless, the Court
believes that 5 U.S.C.A. ù 556 is worthy of at least mention:
(d) . . . A party is entitled to present his case . . ., to
submit rebuttal evidence . . . .

(e) . . . When an agency decision rests on official notice of a
material fact not appearing in the evidence in the record, a
party is entitled, on timely request, to an opportunity to show
the contrary.
With respect to social security adjudications, it is clear that,
where evidence is relied on which is not of record, and notice and an
opportunity for rebuttal have not been provided, subsection (e) has been
violated. See Wallace v. Bowen, 869 F.2d 187 (3d Cir. 1988); Gullo v.
Califano, 609 F.2d 649 (2d Cir. 1979); Lonzollo v. Weinberger, 534 F.2d
712 (7th Cir. 1976); Colwell v. Gardner, 386 F.2d 56 (6th Cir. 1967);
Ross v. Gardner, 365 F.2d 554 (6th Cir. 1966); McDaniel v. Celebrezze,
331 F.2d 426 (4th Cir. 1964). It is also clear that the same principle
applies in non-social security adjudications where section 556(e) is
applicable. See McLeod v. INS, 802 F.2d 89 (3d Cir. 1986); Air Products &
Chemicals, Inc. v. FERC, 650 F.2d 687 (5th Cir. 1981); Marathon Oil v.
EPA, 564 F.2d 1253 (9th Cir. 1977); NLRB v. Johnson, 310 F.2d 550 (6th
Cir. 1962).
E. Federal Rules of Evidence
Rules 106 and 201(e) of the Federal Rules of Evidence are also of
interest in completing the discussion of the right of a party in a federal
proceeding to notice and opportunity to be heard. Under Rule 106, when a
party introduces any writing or recorded statement into evidence, an
adverse party has the right to require the contemporaneous introduction of
any other written or recorded material which fairness requires to be
considered. The notes of the Advisory Committee indicate that the rule is
based on the need for completeness and that one of two considerations for
promulgating the rule was to preclude “the misleading impression created
by taking matters out of context.” 56 F.R.D. 183, 201.
Where judicial notice of adjudicative facts is taken, Rule 201(e)
(e) Opportunity to be heard. A party is entitled upon
timely request to an opportunity to be heard as to the
propriety of taking judicial notice and the tenor of the matter
noticed. In the absence of prior notification, the request may
be made after judicial notice has been taken.
The Advisory Committee’s notes, in turn, state:
Basic considerations of procedural fairness demand an
opportunity to be heard on the propriety of taking judicial
notice and the tenor of the matter noticed. The rule requires
the granting of that opportunity upon request. . . . An
adversely affected party may learn in advance that judicial
notice is in contemplation . . . [o]r he may have no advance
notice at all. . . . [I]n the absence of advance notice, a
request made after the fact could not in fairness be considered
56 F.R.D. at 206.
V. Conclusion
Based on the Court’s discussion in part IV, the Court holds that
before the BVA relies, in rendering a decision on a claim, on any evidence
developed or obtained by it subsequent to the issuance of the most recent
SOC or SSOC with respect to such claim, the BVA must provide a claimant
with reasonable notice of such evidence and of the reliance proposed to be
placed on it, and a reasonable opportunity for the claimant to respond to
it. If, in the course of developing or obtaining or attempting to so
develop or obtain such evidence, the BVA becomes aware of any evidence
favorable to the claimant, it shall provide the claimant with reasonable
notice of and a reasonable opportunity to respond to the favorable
evidence, and shall in its decision provide reasons or bases for its
findings with respect to that evidence. These requirements are implicit
in Colvin and Hatlestad. In Hatlestad, we stated:
The procedure that the Court called for in Colvin . . .
was designed to ensure “that all medical evidence contrary to
the veteran’s claim will be made known to [the veteran] and be
a part of the record before this Court.” . . .

. . . [Q]uotations from medical treatises . . . should be
of sufficient length so that their context (both within the
treatise in question and within the body of relevant medical
literature) is able to be determined.
Hatlestad, 3 Vet.App. at 217 (quoting Colvin, 1 Vet.App. at 175) (
emphasis added). Certainly, to be in proper context, quotations should
include known material from literature that is both unfavorable and
favorable to the claimant. The requirements we announce
today apply only to the BVA. We express no view as to their
applicability with respect to any other VA adjudications.
The decision of the BVA is VACATED, and the matter is REMANDED for
proceedings consistent with this opinion.

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