WARREN B. COOK, Claimant-Appellee
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant
from the United States Court of Appeals for Veterans Claims
in No. 15-873, Judge Coral Wong Pi-etsch, Judge Margaret C.
Bartley, Senior Judge Lawrence B. Hagel.
Kenneth M. Carpenter, Law Offices of Carpenter Chartered,
Topeka, KS, argued for claimant-appellee. Also represented by
Francis M. Jackson, Jackson & MacNichol, South Portland,
Barbara E. Thomas, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellant. Also represented by
Claudia Burke, Robert Edward Kirschman, Jr., Joseph H. Hunt;
Brian D. Griffin, Brandon A. Jonas, Office of General
Counsel, United States Department of Veterans Affairs,
D. Niles, Covington & Burling LLP, Washington, DC, argued
for amicus curiae National Association of Veterans'
Advocates, Inc. Also represented by, Einar Stole; Mark Ryan
Lippman, The Veterans Law Group, La Jolla, CA.
Newman, Lourie, and Clevenger, Circuit Judges.
Lourie, Circuit Judge.
Secretary of Veterans Affairs ("the Secretary" or
"VA") appeals from the decision of the United
States Court of Appeals for Veterans Claims ("Veterans
Court") vacating the decision of the Board of
Veterans' Appeals ("Board") and remanding for
the Board to grant Appellee Warren B. Cook an additional
hearing. Cook v. Snyder, 28 Vet. App. 330, 346
(2017) ("Decision"). Because the Veterans
Court did not err in concluding that Cook was entitled to an
opportunity for a further Board hearing, we affirm.
Veterans' Judicial Review Act, Congress codified a
veteran's longstanding right to a Board hearing. Under
the provision at issue, "[t]he Board shall decide
any appeal only after affording the appellant an
opportunity for a hearing." 38 U.S.C. §
7107(b) (2012) (emphases added). The parties dispute whether
§ 7107(b) requires the Board to provide an opportunity
for another hearing when it reconsiders an appeal after a
vacatur and remand from the Veterans Court. In particular,
the Secretary urges that if the Board has already held a
hearing earlier in a case, § 7107(b) does not require an
opportunity for an additional hearing post-remand. Cook and
his supporting amicus, the National Organization of
Veterans' Advocates (collectively, "Cook"),
argue that § 7107(b) entitles an appellant to an
opportunity for a hearing whenever the Board decides an
appeal, including on remand.
Veterans Court agreed with Cook. Its decision details the
factual and procedural history of Cook's case.
Decision, 28 Vet. App. at 333-34. We discuss only
the facts pertinent to this appeal, which solely concerns the
interpretation of § 7107(b).
served on active duty in the Navy from 1972 to 1973.
Id. at 333. During this period, Cook's service
records indicated that he experienced back pain. Id.
In 2000, Cook sought service connection for certain back
problems and later filed a claim for total disability based
on individual unemployability ("TDIU"), also
back-related. Id. at 333-34. The regional office
("RO") denied both claims. Id. at 333.
Cook appealed to the Board and testified at a Board hearing
in 2012 about his back problems and their effects on his
employment. Id. The Board remanded both the service
connection and TDIU claims to the RO for further development,
but the RO denied both claims. Id. at 333-34.
again appealed to the Board and requested an additional
hearing to present further evidence. Id. at 334. The
Board denied Cook that additional hearing, explaining that
Cook "was already afforded a Board hearing" and
that "no further hearing is necessary," J.A. 129,
and denied both of his claims. Cook appealed to the Veterans
Court, which, upon joint motion by Cook and the Secretary,
vacated the Board's decision and remanded for further
proceedings because the Board did not adequately explain its
decision. Decision, 28 Vet. App. at 334.
Specifically, the parties agreed that the Board failed to
identify or discuss a medical report supporting Cook's
claim. J.A. 192-94, 196.
remand, Cook again requested another Board hearing to
"present additional evidence in the form of [his]
testimony." Decision, 28 Vet. App. at 334
(alterations in original). As in his previous appeal, the
Board denied Cook such a hearing, reasoning that "[a]s
the Veteran has been afforded a Board hearing, no further
hearing is necessary." J.A. 142. The Board also ...