Herbert v. McDonald


Herbert v. McDonald, 791 F.3d 1364 (Fed. Cir. July 2, 2015)
38 U.S.C. § 5103A
Held: 38 U.S.C. § 5103A imposes no obligation on the Board to expressly determine that the record is insufficient to decide a claim before it can order a new medical opinion.

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    Veteran sought service connection for PTSD. He submitted favorable medical evidence in support of his claim. The RO obtained a VA medical opinion, which was negative, and denied the claim. The veteran appealed to the Board. During the pendency of that appeal, the veteran submitted additional favorable medical evidence, which was subsequently countered by two additional negative VA medical opinions. The Board continued to deny the claim.

    The veteran appealed to the CAVC and the parties entered into a joint motion to remand. On remand, the Board determined that another medical examination was necessary and remanded to the RO for additional development. The veteran underwent a VA examination in November 2011 in which the examiner determined that he did not have PTSD. Prior to that examination, the veteran had obtained an additional private medical opinion in support of his claim in May 2011. This opinion was not of record at the time of the November 2011 examination, but it was in the record when the appeal was returned to the Board.

    The Board continued to deny the claim – and the veteran again appealed to the CAVC. The CAVC affirmed the Board’s decision and the veteran appealed to the Federal Circuit.

    The only argument on appeal over which the Federal Circuit had jurisdiction was the argument that 38 U.S.C. § 5103A required the Board to explain its determination that the pre-November 2011 record was insufficient before it could order the additional medical opinion. The Federal Circuit held that § 5103A “contains no such requirement.”

    The Court noted that § 5103A imposes an affirmative requirement on VA to provide medical examinations in certain circumstances – but the statute does not restrict VA’s discretion to gather evidence. The Court cited Douglas v. Shinseki, 23 Vet.App. 19, 22-26 (2009), to support VA’s authority to develop the record, and noted that the veteran did not identify “any constraints on such authority.” The Court stated that 38 C.F.R. § 3.304(c) does not limit VA’s discretion to develop evidence, explaining that this regulation “gives VA the discretion to determine how much development is necessary for a determination of service connection to be made.” (citing Shoffner v. Principi, 16 Vet.App. 208, 213 (2002)). Because the Court found no legal error in the CAVC’s interpretation of 38 U.S.C. § 5103A, it affirmed the decision.

Category: Veterans’ Law