Background
Dr. Harvey Lee Malone appealed a decision from the United States Court of Appeals for Veterans Claims. The Veterans Court had affirmed-in-part and remanded-in-part a decision by the Board of Veterans’ Appeals. The Veterans Court declined to address arguments related to clear and unmistakable error because the Board had not addressed a motion to revise a previous decision based on that error.
The court’s reasoning
The Federal Circuit agreed with the government that the Veterans Court erred. The court cited precedent stating that a denial of a claim includes the failure of the Board to consider a claim that was reasonably raised before it. The appellate court concluded the Veterans Court was required to analyze its own jurisdiction with respect to the alleged clear and unmistakable error claims to determine if they were appropriately raised and remained unadjudicated.
What it means going forward
The Veterans Court must now re-evaluate whether the clear and unmistakable error claims were properly raised before deciding whether to address them. The case may be remanded further to the Board for fact-finding if the Veterans Court deems it appropriate.
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