Veteranclaims’s Blog

November 10, 2021

Single Judge Application/Citation; Tadlock v. McDonough, 5 F.4th (Fed.Cir. 2021);

Tadlock v. McDonough, 5 F.4th 1327,1335 (Fed.Cir. 2021)(instructing this Court to leave matters to the Board that are “open to debate”)

Tadlock v. McDonough, 5 F.4th 1327, 1335 (Fed.Cir. 2021) (holding that this Court cannot make findings of fact in the first instance in the context of harmless error analysis)

Tadlock v. McDonough, 5 F.4th 1327,1335 (Fed.Cir. 2021)(holding that this “Court may affirm on a ground not considered by the Board and the VA if it is clear that the factual basis for such conclusion is not open to debate and the Board on remand could not have reached any other determination on that issue”(citing Mayfield v. Nicholson ,444 F.3d 1328,1336 (Fed. Cir.2006)))

Tadlock v. McDonough, 5 F.4th 1327,1336 (Fed.Cir. 2021)(holding that the Court’s statutory duty to consider prejudicial error “does not give it the right to make de novo findings of fact or otherwise resolve matters that are open to debate”)

Tadlock , 5 F.4th at 1336 (citing Mayfield v. Nicholson, 444 F.3d 1328,1336 (Fed. Cir. 2006)(“[T]his case is not one in which we can conclude that there was no violation of the Chenery doctrine on the ground that ‘it is clear that …the agency would have reached the same ultimate result under the court’s legal theory.'”(alteration in original)

Tadlock, 5 F.4th at 1337-38 (“Where additional findings of fact are necessary regarding matters open to debate,the proper action for the Veterans Court is to remand to the Board for consideration of those facts in the first instance)

Tadlock v. McDonough, 5 F.4th 1327,1337 (Fed. Cir.2021)(“Affirmance in the face of an error may be made by the Veterans Court only if the record already contains findings made previously by …VA or the Board that support affirmance or the entire record makes evident that the Board could not have reached any other decision.”)

In Tadlock, the Federal Circuit concluded that,where the Board failed to make relevant factual findings on matters open to debate because of a similar legal error,”[t]he proper course” was for the Court to remand for the Board to consider in the first instance whether the appellant’s illness “might be ‘defined by a cluster of signs or symptoms.'”2021 WL 2964328, *8 (quoting 38 C.F.R. § 3.317(a)(2)(i)(B))

“[W]hether an illness is ‘defined by a cluster of signs or symptoms’…is a question of fact delegated to the VA … for consideration in the first instance.” Tadlock, 5 F.4th at 1338 (quoting 38 U.S.C. § 1117(a)(2)(B))

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