Cook v. Snyder

28 Vet. App. 330, 2017 U.S. Vet. App. LEXIS 105, 2017 WL 405830
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 31, 2017
DocketNo. 15-0873
StatusPublished
Cited by20 cases

This text of 28 Vet. App. 330 (Cook v. Snyder) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cook v. Snyder, 28 Vet. App. 330, 2017 U.S. Vet. App. LEXIS 105, 2017 WL 405830 (Cal. 2017).

Opinion

BARTLEY, Judge:

Veteran Warren B. Cook appeals through counsel a February 20, 2015, Board of Veterans’ Appeals (Board) decision that denied service connection for a lumbar spine disorder and a total disability evaluation based on individual unemploya-bility (TDIU). Record (R.) at 3-14. Although neither party requested a prece-dential decision, this case was referred to a panel by a Judge of the Court to determine whether a VA claimant who has had a personal hearing before the Board at one stage of appellate proceedings is barred from receiving a hearing before the Board [333]*333during a subsequent stage of appellate proceedings, namely, following a remand from this Court, We hold that, under 38 U.S.C. § 7107(b), a claimant is entitled upon request to a Board hearing in such circumstances. Accordingly, we will set aside the February 2015 Board decision and remand the matters for additional development and readjudication consistent with this decision.

I. FACTS & PROCEDURAL HISTORY

Mr. Cook served on active duty in the U.S. Navy from December 1972 to November 1973. R. at 115. Service medical records (SMRs) indicate that he experienced low back pain in August 1973 and was diagnosed with mild muscle pull, R. at 1760. A few weeks later, he again presented with back pain, which had persisted intermittently since early August. R, at 1761. He denied radicular pain, and mild sprain was again diagnosed. R. at 1761-62. In September 1963, Mr. Cook stated that low back pain had grown worse but his physical examination and x-rays were negative. R. at 1762-63. October 1973 SMRs contain other medical complaints but none relating to low back pain. R. at 1763, 1770-72. His separation examination report showed a normal spine evaluation. R. at 1755-56.

In May 2000, the veteran sought service connection for “disc, laminectomy and dis-cectomy, lumbar spine,” which the VA regional office (RO) denied in May 2001. R. at 1407-09. It appears that he did not appeal that decision, and it became final. Mr. Cook sought to reopen the claim in September 2006, but the RO confirmed and continued its denial in March 2007, finding that the evidence submitted was not new and material and, therefore, did not justify reopening. R. at 999-1005. The veteran timely disagreed with that decision, R. at 991, and subsequently testified at a September 2007 RO hearing, in which he stated, inter alia, that he was receiving Social Security Administration (SSA) disability insurance for his back condition. R. at 977-84. The RO continued its denial, and Mr. Cook appealed to the Board. R. at 965-75.

In August 2009, the veteran filed a request for a TDIU. R. at 746-47. After the RO denied entitlement to TDIU in August 2010, R. at 714-19, the veteran timely disagreed, R. at 712, and the RO continued its denial, R. at 695-705, which he appealed to the Board, R. at 693-94.

In June 2012, the veteran testified at a Board hearing regarding back problems and their effect on employment. R. at 655-71. The Board member observed that the issues on appeal were whether new and material evidence had been submitted to reopen the claim of service connection for a lumbar spine disorder and entitlement to TDIU. R. at 656, 668. In October 2012, the Board found that new and material evidence had been submitted to VA and reopened the claim for service connection for a lumbar spine condition. R. at 625-29, It remanded that issue, along with entitlement to TDIU, for additional development, including for VA to obtain worker’s compensation, SSA, VA, and private treatment records and to provide VA linkage and TDIU opinions. R. at 629-34. In November 2012, SSA advised VA that it could not provide any medical records because either Mr. Cook did not file for disability benefits or no medical records were obtained in connection with such a claim. R. at 603-04. In April 2013, a VA examiner opined that Mr. Cook’s spine disability impacted his ability to work but that it was less likely than not that the condition was related to service. R. at 573-90,

The RO continued to deny service connection for a lumbar spine condition and [334]*334entitlement to TDIU in a November 2013 Supplemental Statement of the Case (SSOC). R. at 57-67. In a November 2013 letter submitted through his current counsel, the veteran stated that he disagreed with the conclusions reached in the SSOC, wished to continue with his appeal, and “would like to be scheduled for a [Board] video hearing as soon as possible so that he can offer further evidence in the form of testimony.” R. at 55. A January 2014 RO letter advised that the appeal was being re-certified to the Board, that relevant records were being transferred there, and that the veteran would “receive further information by separate letter” regarding any request to personally appear before the Board. R. at 47.

In February 2014, the Board issued a decision denying service connection for a lumbar spine disorder and entitlement to TDIU. R. at 33-42. Therein, the Board acknowledged the veteran’s request for a hearing to submit additional evidence but denied it because he had already been afforded a Board hearing and, therefore, no further hearing was necessary. R. at 34. Mr. Cook appealed to the Court, which, in October 2014, granted the parties’ joint motion for remand; the basis for the remand was the Board’s failure to address a positive private linkage opinion. See R. at 4-5. In November 2014, the veteran again asked for a travel Board hearing at the RO so that he could “present[ ] additional evidence in the form of [his] testimony.” R. at 17.

In the February 2015 decision on appeal, the Board again denied service connection for a lumbar spine disorder and entitlement to TDIU based thereon, finding that the evidence did not establish a link between the current spine disorder and service or demonstrate continuity of symptoms. R. at 3-14. The Board noted that

the [v]eteran requested a hearing in November 2013 so he could present “further evidence.” He again requested a hearing in November 2014. “A hearing on appeal will be granted if an appellant, or an appellant’s representative acting on his or her behalf, expresses a desire to appear in person.” 38 C.F.R. § 20.700(a) (emphasis added). The Met-erán was afforded a Board hearing in June 2012. He also presented testimony before the RO in September 2007. The transcripts have been associated with the record. As the [v]eteran has been afforded a Board hearing, no further hearing is necessary.

R. at 4. This appeal followed.

II. PARTIES’ARGUMENTS

Mr. Cook argues that the Board erred in denying his requests for a Board hearing following remand.2 Appellant’s Brief (Br.) at 5-10. Specifically, he contends that, because VA benefits are a protected property interest, the Board’s denial of a hearing following remand violates his constitutional due process right to be heard at a meaningful time and in a meaningful manner.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Atilano v. McDonough
12 F.4th 1375 (Federal Circuit, 2021)
190328-6969
Board of Veterans' Appeals, 2020
190129-7495
Board of Veterans' Appeals, 2019
Bo v. Robert L. Wilkie
Veterans Claims, 2019
Cook v. Wilkie
908 F.3d 813 (Federal Circuit, 2018)
11-14 947
Board of Veterans' Appeals, 2017
12-07 835
Board of Veterans' Appeals, 2017
Kyhn v. Shinseki
24 Vet. App. 228 (Veterans Claims, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
28 Vet. App. 330, 2017 U.S. Vet. App. LEXIS 105, 2017 WL 405830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-snyder-cavc-2017.