Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cook v. Wilkie

United States Court of Appeals, Federal Circuit

November 13, 2018

WARREN B. COOK, Claimant-Appellee
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant

          Appeal 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, ME.

          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, Washington, DC.

          John 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.

          Before Newman, Lourie, and Clevenger, Circuit Judges.

          Lourie, Circuit Judge.

         The 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.

         I. Background

         In the 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).[1] 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.

         The 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).

         A.

         Cook 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.

         Cook 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.

         On 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.