Veteranclaims’s Blog

November 18, 2021

Single Judge Application; Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021), concerning the constructive possession doctrine; “The correct standard for constructive possession . . . is relevance and reasonableness.” Euzebio, 989 F.3d at 1321; “Evidence that ‘could reasonably be expected to be part of the record’ is evidence that ‘pre-date[s] the [Board] opinion’ and is relevant”; “[r]elevance requires that the document tend to prove or disprove a material fact.” Euzebio, 989 F.3d at 1319, 1324 (first quoting Bell, 2 Vet.App. at 612-13; and then citing AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013)); Upon consideration of the Federal Circuit’s recent decision in Euzebio, the Court is persuaded that the NAS Updates preceding the decision on appeal were constructively before the Board. The reports are relevant and reasonably could be expected to be part of the record before the Board. Here, as in Euzebio, the VA generally and the Board specifically knew of the existence of the content of the 2006 and 2010 Updates cited by the appellant. See Euzebio, 989 F.3d at 1314 (noting that VA is on notice of the information contained in reports that it published in the Federal Register); see also Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947) (“Congress has provided that the appearance of rules and regulations in the Federal Register gives legal notice of their contents.”). Indeed, the Federal Circuit recognized that “[t]he importance and relevance of the NAS Reports to [AO] claims are well-known and well-established,” Euzebio, 989 F.3d at 1320,;

Filed under: Uncategorized — veteranclaims @ 12:53 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-2298
BAILEY L. PHELPS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The appellant, Bailey L. Phelps, through counsel appealed an
October 24, 2018, Board of Veterans’ Appeals (Board) decision that denied entitlement to
disability compensation for idiopathic nodular glomerulosclerosis, claimed as renal failure (kidney
disorder), on a direct and presumptive basis, including as due to Agent Orange (AO) exposure.
Record (R.) at 3-15. In a January 31, 2020, memorandum decision, the Court affirmed the Board’s
decision. Phelps v. Wilkie, No. 19-2298, 2020 WL 497484 (Vet. App. Jan. 31, 2020) (mem. dec.).
On appeal, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) granted the parties’
joint motion to remand the matter to this Court to apply the Federal Circuit’s intervening decision
in Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021), concerning the constructive possession
doctrine
. Phelps v. McDonough, No. 2020-1731 (Fed. Cir. Oct. 1, 2021) (nonprecedential order).
The appellant does not challenge the Board’s denial of his claim for a kidney disorder on a
direct and presumptive basis, including as due to AO exposure. The Court therefore considers
those matters abandoned and the Court will dismiss the appeal as to the abandoned matters. See
Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc). The Court has jurisdiction to
review the Board’s decision pursuant to 38 U.S.C. § 7252(a). Single-judge disposition is
appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the following reasons,
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the Court will remand the reasonably raised theories of entitlement to disability compensation for
hypertension due to AO exposure and a kidney disorder secondary to hypertension for further
development, if necessary, and adjudication.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1969 to July 1978,
including service in Vietnam. R. at 687-90. He filed a disability compensation claim for a kidney
disorder in December 2012. R. at 1438. A VA regional office denied the claim, R. at 1290-94,
1304-06, and he appealed to the Board, R. at 869-70, 1268. See R. at 981-1000. The Board
remanded the claim in October 2017 to obtain a VA examination and opinion. R. at 134-62.
In February 2018, the appellant underwent a VA examination; the VA examiner opined
that his kidney disorder is less likely than not related to military service, including presumed AO
exposure. R. at 72. Rather, the examiner noted that “[e]pidemiologic studies have demonstrated a
strong association with traditional cardiovascular risk factors, namely hypertension, smoking[,]
and obesity,” and that the appellant “had long-standing pre-existing hypertension prior to diagnosis
of renal abnormalities, and he had a smoking history.” Id. With regard to whether his condition is
related to AO exposure, the examiner stated that she was unable to locate any literature reporting
a possible relationship. Id. The examiner further noted:
[T]he most recent update of the National Institute of Medicine report, Veteran[]s
and Agent Orange, concluded that the few available epidemiologic studies
examining a connection between Agent Orange and renal disease in general were
“inadequate or insufficient evidence of an association between nonmalignant
kidney diseases and exposure to the herbicides sprayed in Vietnam.”
Id.
The Board denied entitlement to disability compensation for a kidney disorder in the
October 24, 2018, decision. R. at 3-15. The Board explained that, although the record established
that the appellant has a current kidney disability and that he benefits from a presumption of
exposure to herbicide agents, the preponderance of the evidence weighed against finding that his
kidney condition began during service or is otherwise related to service. R. at 8. This appeal
followed.
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II. ANALYSIS
As noted above, the appellant does not dispute the Board’s denial of his claim for a kidney
disorder on a direct and presumptive basis, including as due to AO exposure. Rather, he argues
solely that the Board erred by failing to adjudicate entitlement to disability compensation for
hypertension due to AO exposure, and for a kidney disorder secondary to hypertension. Appellant’s
Brief (Br.) at 5-11; Reply Br. at 1-7. In this regard, he maintains that the evidence unequivocally
demonstrates that his kidney disorder is related to his hypertension; medical information contained
in the National Academies of Sciences, Engineering & Medicine’s (NAS’s) Veterans and Agent
Orange: Update 2018 (11th Biennial Update 2018), and previous NAS reports, demonstrates that
his hypertension is related to his AO exposure; the Board had actual or constructive knowledge of
the NAS updates and their content because the Board highlighted that the February 2018 VA
examiner “‘cited to the most recent [Update]’ in support of his findings and conclusions”; and the
Secretary has conceded in other cases that the Board has actual knowledge of the NAS updates.
Appellant’s Br. at 7 (quoting R. at 6); see id. at 5-8. He thus contends that the record reasonably
raised these theories of entitlement. Id.
The Secretary counters that the NAS reports were not actually or constructively before the
Board, and to the extent that the appellant relies on the 2018 Update, the Secretary notes that the
report was released in November 2018, after the VA examiner’s opinion and the decision on
appeal. Secretary’s Br. at 5-12. He further argues that, because the NAS reports are not part of the
record, the appellant fails to demonstrate that the issue of service connection for hypertension due
to AO exposure and a kidney disorder secondary to hypertension was raised by the record. Id. at
12-17. Because the appellant raises no other challenges to the Board’s decision, the Secretary
requests that the Court affirm the Board’s decision. Id. at 17.
In his reply brief, the appellant contends that, regardless of whether the 2018 Update was
before the Board, the Secretary published the 2006 Update, including the language on which he
relies, in the Federal Register, and that the 2010 Update contains the same information. Reply Br.
at 4. He asserts that the information obtained by the Secretary during the adjudication of his claim
demonstrates that his kidney disorder is related to his hypertension, which in turn is related to AO
exposure. Id. at 5. He argues that remand is warranted for the Board to adjudicate entitlement to
benefits for hypertension related to AO exposure, and for a kidney disorder secondary to
hypertension. Id. at 7.
4
A. Relevant Law
The Board is required to consider all theories of entitlement to VA benefits that are either raised by the claimant or reasonably raised by the record, Robinson v. Peake, 21 Vet.App. 545,
553 (2008), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009), and the Court
has jurisdiction to review whether the Board erred in failing to consider such theories, Barringer
v. Peake, 22 Vet.App. 242, 244 (2008). As relevant here, the Court, in DeLisio v. Shinseki,
explained the Secretary’s obligation as follows:
[I]f the condition for which VA benefits are sought is not directly associated with
service, but information obtained during the processing of the claim reasonably
indicates that the cause of the condition is a disease or other disability that may be
associated with service, the Secretary generally must investigate whether the causal
disease or disability is related to service, in order to determine whether the claimed
condition is related secondarily to service. If the Secretary determines that the
causal disease or disability is, in fact, connected to service, then the claim for
benefits for the condition “reasonably encompasses” a claim for that causal disease
or disability, such that no additional filing is necessary to initiate a claim for
benefits for the causal disease or disability.
25 Vet.App. 45, 54 (2011) (citations omitted) (quoting Clemons v. Shinseki, 23 Vet.App. 1, 5
(2009) (per curiam order)). Whether an issue is reasonably raised by the record is essentially a
question of fact, subject to the “clearly erroneous” standard of review. See 38 U.S.C. § 7261(a)(4);
Robinson, 21 Vet.App. at 553; cf. Garner v. Tran, 33 Vet.App. 241, 247 (2021) (explaining that
our caselaw has “articulated that whether an issue is reasonably raised is essentially a factual
question,” but that the Court addresses that question in the first instance where the Board did not
address it).
The Court is precluded by statute from considering any material that was not contained in “the record of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b); see Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that review in this Court shall be on the record of proceedings before the Secretary and the Board); see also Kyhn v. Shinseki, 716 F.3d
572, 576-78 (Fed. Cir. 2013) (holding that the Court contravenes the jurisdictional requirements of section 7252(b) by considering extrarecord evidence). In that regard, the Court’s authority “is
limited to reviewing the correctness of the Agency’s factual and legal conclusions based on the
record before the agency at the time of its decision.” Bonhomme v. Nicholson, 21 Vet.App. 40, 43
(2007) (per curiam order) (emphasis omitted).
5
In certain circumstances, evidence will be deemed constructively part of the record before
the Secretary and the Board. See Bell v. Derwinski, 2 Vet.App. 611, 612 (1992) (per curiam order).
“The correct standard for constructive possession . . . is relevance and reasonableness.” Euzebio,
989 F.3d at 1321
. As articulated in Bell, evidence will be considered constructively before the
Secretary and the Board when that evidence is “within the Secretary’s control and could reasonably
be expected to be a part of the record ‘before the Secretary and the Board.'” Bell, 2 Vet.App. at 613
(quoting 38 U.S.C. § 7252(b)); see Lang v. Wilkie, 971 F.3d 1348, 1353 (Fed. Cir. 2020).
“Evidence that ‘could reasonably be expected to be part of the record’ is evidence that ‘pre-date[s]
the [Board] opinion’ and is relevant”; “[r]elevance requires that the document tend to prove or
disprove a material fact.” Euzebio, 989 F.3d at 1319, 1324 (first quoting Bell, 2 Vet.App. at
612-13; and then citing AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013)).

B. Application
The appellant asserts that the NAS reports were constructively before the Board and that
the Board had actual knowledge of the content of the reports because (1) the Board referenced the
2018 VA examiner’s report, which quoted from “‘the most recent [Update]'”; (2) the content of the
2006 and 2010 Updates was discussed in the Federal Register; and (3) the Secretary has conceded
actual knowledge of the NAS reports. Appellant’s Br. at 7 (quoting R. at 6); see id. at 5-8. Upon
consideration of the Federal Circuit’s recent decision in Euzebio, the Court is persuaded that the
NAS Updates preceding the decision on appeal were constructively before the Board. The reports
are relevant and reasonably could be expected to be part of the record before the Board.
Here, as in Euzebio, the VA generally and the Board specifically knew of the existence of
the content of the 2006 and 2010 Updates cited by the appellant. See Euzebio, 989 F.3d at 1314
(noting that VA is on notice of the information contained in reports that it published in the Federal
Register); see also Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947) (“Congress has
provided that the appearance of rules and regulations in the Federal Register gives legal notice of
their contents.”). Indeed, the Federal Circuit recognized that “[t]he importance and relevance of
the NAS Reports to [AO] claims are well-known and well-established,” Euzebio, 989 F.3d at 1320,

and the Board here referenced the 2018 VA examiner’s reliance on the most recent report, R. at
6, 8. Additionally, as acknowledged by the Board, the appellant served in Vietnam and benefits
from a presumption that he was exposed to herbicides, R. at 8; the VA examiner opined that there
is a strong association between the appellant’s kidney condition and “traditional cardiovascular
6
risk factors, namely hypertension,” R. at 10; and the appellant had “long-standing pre[]existing
hypertension prior to the diagnosis of renal abnormalities,” id. Moreover, it is beyond dispute that
the 2006 and 2010 Updates indicated that there is “‘limited or suggestive evidence of an
association'” between AO and hypertension. Appellant’s Br. at 6 n.1 (citations omitted); see
Determinations Concerning Illnesses Discussed in National Academy of Sciences Report:
Veterans and Agent Orange: Update 2010, 77 Fed. Reg. 47,924, 47,926-27 (Aug. 10. 2012); Health
Effects Not Associated with Exposure to Certain Herbicide Agents, 75 Fed. Reg. 32,540, 32,549
(June 8, 2010).
Because the NAS Updates were constructively before the Board, the Court further
concludes that the appellant’s claim for a kidney disorder reasonably encompassed the matters of
entitlement to benefits for hypertension due to AO exposure, and for a kidney disorder secondary
to hypertension. As reflected above, the information obtained during the pendency of his claim
reasonably indicates that his kidney disorder may be caused by hypertension, which may be
associated with AO exposure. Accordingly, remand is required for the Secretary to adjudicate
those matters. See DeLisio, 25 Vet.App. at 53 (“[U]pon the filing of a claim for benefits, the
Secretary generally must investigate the reasonably apparent and potential causes of the veteran’s
condition and theories of service connection that are reasonably raised by the record or raised by
a sympathetic reading of the claimant’s filing.” (emphasis added) (citing Schroeder v. West,
212 F.3d 1265, 1271 (Fed. Cir. 2000))).
On remand, the appellant is free to submit additional evidence and argument on the
remanded matters, including the specific arguments raised here on appeal, and the Board is
required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App.
529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and
argument in assessing entitlement to the benefit sought); Kutscherousky v. West, 12 Vet.App. 369,
372-73 (1999) (per curiam order). The Court reminds the Board that “[a] remand is meant to entail
a critical examination of the justification for the decision,” Fletcher v. Derwinski, 1 Vet.App. 394,
397 (1991), and the Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
III. CONCLUSION
After consideration of the parties’ pleadings and a review of the record, the appeal of the
Board’s October 24, 2018, decision denying entitlement to disability compensation for idiopathic
7
nodular glomerulosclerosis, claimed as renal failure, on a direct and presumptive basis, including
as due to AO exposure, is DISMISSED. The reasonably raised theories of entitlement to disability
compensation for hypertension due to AO exposure and a kidney disorder secondary to
hypertension are REMANDED for further development, if necessary, and adjudication.
DATED: November 17, 2021
Copies to:
Michael S. Just, Esq.
VA General Counsel (027)

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