Case: 19-1992   Document: 40    Page: 1    Filed: 08/19/2020




   United States Court of Appeals
       for the Federal Circuit
                 ______________________

                   JAMES R. LANG,
                   Claimant-Appellant

                           v.

   ROBERT WILKIE, SECRETARY OF VETERANS
                   AFFAIRS,
              Respondent-Appellee
             ______________________

                       2019-1992
                 ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 18-13, Judge Amanda L. Meredith.
                 ______________________

                Decided: August 19, 2020
                 ______________________

    KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
 KS, for claimant-appellant.

     DAVID PEHLKE, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, for respondent-appellee. Also represented by
 ETHAN P. DAVIS, CLAUDIA BURKE, ROBERT EDWARD
 KIRSCHMAN, JR.; JONATHAN KRISCH, Y. KEN LEE, Office of
 General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
                  ______________________
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 2                                            LANG   v. WILKIE



  Before NEWMAN, LOURIE, and O’MALLEY, Circuit Judges.
 O’MALLEY, Circuit Judge.
     James R. Lang appeals a decision of the United States
 Court of Appeals for Veterans Claims (“Veterans Court”)
 denying his request that his claim be remanded to the
 Board of Veterans’ Appeals (“Board”) for consideration of
 whether certain medical records generated by the Depart-
 ment of Veterans Affairs Medical Center (“VAMC”) consti-
 tute “new and material” evidence relevant to his 1995 claim
 for disability compensation. See Lang v. Wilkie, No. 18-
 0013, 2019 WL 922532 (Vet. App. Feb. 26, 2019). For the
 reasons discussed below, we vacate the decision of the Vet-
 erans Court and remand.
                              I
     Lang served in the U.S. Marine Corps from February
 1966 to July 1968. Following his service in Vietnam, where
 he was badly injured, he received the Purple Heart and
 Combat Action Ribbon. In the years since, Lang has expe-
 rienced serious, ongoing mental health issues, including
 nightmares, hypervigilance, and aggression. Lang sought
 psychiatric treatment at the Pittsburgh, Pennsylvania
 VAMC. On March 9, 1995, Lang was diagnosed with post-
 traumatic stress disorder (“PTSD”). The compensation and
 pension examiner explained:
     [T]he Veteran from a physical standpoint is perma-
     nently and totally disabled from any type of gainful
     employment [and] is also socially handicapped to a
     severe degree . . . . He has a very severe form of
     PTSD that he has treated himself with alcohol
     abuse over the years which has only contributed to
     other problems. He is riddled by depression and
     anxiety as well as the usual host of PTSD symp-
     toms . . . . The Veteran from the standpoint of the
     PTSD alone is being presented with severe impair-
     ments in social and occupational adaptability, not
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 LANG   v. WILKIE                                          3



     to mention the horrendous physical deformities
     and disabilities he has sustained in service to his
     country.
 J.A. 42.
      On April 13, 1995, Lang filed a disability compensation
 claim for PTSD with the Pittsburgh Regional Office (“RO”)
 of the VA. He was granted a 10% disability rating on June
 18, 1996 (“1996 rating decision”). Lang did not immedi-
 ately appeal the decision. He continued to receive treat-
 ment for PTSD at the Pittsburgh VAMC from July 1996 to
 June 1997.
     On February 5, 2014, Lang filed a motion with the
 Pittsburgh RO to revise the 1996 rating decision based on
 an assertion of clear and unmistakable error (“CUE”). The
 RO denied Lang’s motion in September 2014. Lang ap-
 pealed the denial to the Board. In September 2015, the
 Board remanded to the RO to further develop the record—
 including retrieving VAMC medical records from January
 1995 to June 1997. The RO issued a supplemental state-
 ment of the case in July 2016 and returned the case to the
 Board. The Board declined to revise Lang’s rating decision
 based on CUE in September 2017. Lang appealed to the
 Veterans Court.
     On March 20, 2019, the Veterans Court issued a deci-
 sion affirming the Board’s denial of Lang’s request for an
 adjustment to the 1996 rating decision. Importantly, the
 Veterans Court rejected Lang’s argument that the Board’s
 CUE determination was procedurally improper because
 the 1996 rating decision had never been final. Lang argued
 that VA-generated medical records, created in the year fol-
 lowing the 1996 rating decision, were constructively re-
 ceived by the VA such that the decision could not be final
 until the records were reviewed for new and material evi-
 dence under 38 C.F.R. § 3.156(b), which to date they have
 not been. The Veterans Court acknowledged that a non-
 final decision could not have been subject to CUE review
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 4                                              LANG   v. WILKIE



 by the Board. The Veterans Court held that the records
 were not constructively received, however, because Lang
 failed to prove that the “VA had sufficient knowledge of the
 VA treatment records . . . to trigger the Board’s duty to
 make the requested findings.” Lang, 2019 WL 922532, at
 *4 (citing Turner v. Shulkin, 29 Vet. App. 207, 218–19
 (2018)). Thus, the Veterans Court found no prejudicial er-
 ror in the Board’s failure to address the post-decision med-
 ical records.
     Lang timely appeals the Veterans Court’s decision as
 to the finality of the 1996 rating decision.
                               II
     Our jurisdiction to review decisions of the Veterans
 Court is limited by statute to legal questions, such as the
 proper interpretation of a statute or a regulation.
 38 U.S.C. § 7292(c); Sullivan v. McDonald, 815 F.3d 786,
 788–89 (Fed. Cir. 2016). We must “hold unlawful and set
 aside any regulation or any interpretation thereof (other
 than a determination as to a factual matter) that was relied
 upon in the decision of the [Veterans Court]” that we find
 to be (1) arbitrary, capricious, an abuse of discretion, or
 otherwise not in accordance with law; (2) contrary to con-
 stitutional right, power, privilege, or immunity; (3) in ex-
 cess of statutory jurisdiction, authority, or limitations, or
 in violation of a statutory right; or (4) without observance
 of procedure required by law. 38 U.S.C. § 7292(d)(1). We
 review whether the Veterans Court exceeded its jurisdic-
 tion, a question of law, de novo. Sullivan, 815 F.3d at 789.
      Lang argues that the Veterans Court erred as a matter
 of law when evaluating whether post-decision VAMC med-
 ical records prevented the 1996 rating decision from becom-
 ing final and, thus, prevented a CUE analysis. The
 government argues that the Veterans Court lacked juris-
 diction to address that issue in the first instance and that,
 therefore, we too lack jurisdiction over this appeal. We first
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 LANG   v. WILKIE                                            5



 address our jurisdiction and then the merits of Lang’s ap-
 peal.
                               A
     The government argues that the Veterans Court ex-
 ceeded its jurisdiction when it considered Lang’s argument
 that the 1996 rating decision is still not final. It is undis-
 puted that Lang made this argument for the first time on
 appeal to the Veterans Court. Although the government
 admits that the Veterans Court has broad discretion to ad-
 dress new arguments that were not raised before the
 Board, see Maggitt v. West, 202 F.3d 1370, 1378 (Fed. Cir.
 2000), it argues that the fact that Lang’s substantive argu-
 ment to the Board had been predicated on the assertion of
 CUE entirely eliminates the Veterans Court’s discretion to
 address Lang’s procedural concern. It also characterizes
 Lang’s finality argument as a new CUE claim, which
 needed to be addressed by the Board in the first instance.
 We disagree.
      The government is correct that each allegation of CUE
 must be made, with specificity, to the Board for the Veter-
 ans Court to exercise jurisdiction over it. See, e.g., Andre
 v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) (“[E]ach
 ‘specific’ assertion of CUE constitutes a claim that must be
 the subject of a decision by the [Board] before the Veterans
 Court can exercise jurisdiction over it.”). Lang’s procedural
 argument to the Veterans Court was not, however, a new
 claim of CUE. It was an argument that no CUE inquiry
 need occur because the 1996 rating decision is not final.
 See 38 C.F.R. § 3.105(a) (allowing CUE review of final de-
 cisions); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed.
 Cir. 2014) (“[U]nder § 3.156(b), the VA must provide a de-
 termination that is directly responsive to the new submis-
 sion and . . . , until it does so, the claim at issue remains
 open.”). As Lang correctly notes, “[t]he Board must estab-
 lish the finality of the June 1996 rating decision because
 only final decisions are subject to CUE. If there is no final
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 6                                               LANG   v. WILKIE



 decision, there can be no CUE; and the Board would have
 been required to dismiss the CUE motion in its entirety.” 1
 Appellant’s Reply Br. 2 (citation omitted). The Veterans
 Court, therefore, was within its discretion to consider
 Lang’s argument.      And because the Veterans Court
 properly exercised jurisdiction over Lang’s argument, we
 have authority to review any underlying legal issues on ap-
 peal. See 38 U.S.C. § 7292(c).
                                B
     The VA has a long history of considering documents
 that were not literally before an examiner to be construc-
 tively part of a claimant’s record. See Bell v. Derwinski,
 2 Vet. App. 611, 613 (1992). In Bell, the Veterans Court
 held, “where the documents proffered by the appellant are
 within the Secretary’s control and could reasonably be ex-
 pected to be a part of the record ‘before the Secretary and
 the Board,’ such documents are, in contemplation of law,
 before the Secretary and the Board and should be included
 in the record.” Id.; see also id. (“[B]ecause [the disputed rec-
 ords] were clearly generated by the VA, the Secretary had
 constructive, if not actual, knowledge of those items.”). Af-
 ter Bell, the Secretary issued Office of General Counsel


     1   The government argues that if we require the
 Board to establish the finality of a decision before applying
 the CUE analysis it “will result in massive disruptions to
 prior decision[s] and impose an unworkable standard going
 forward.” Appellee’s Br. 14. We do not think such a dis-
 ruption is likely. The period during which a claim remains
 open where new and material evidence is developed is very
 short. The requirement that a decision be final before CUE
 must be proven is not new, moreover. Any resulting dis-
 ruption from a decision requiring the Board to establish it
 has authority to complete a CUE analysis is, therefore, a
 problem of the Board’s own creation; policing the VA’s own
 records for one year post-decision should not be difficult.
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 LANG   v. WILKIE                                              7



 Opinion 12-95, which officially adopted the Bell rule for all
 records in the VA’s possession. Vet. Aff. Op. Gen. Couns.
 Prec. 12-95, 1995 WL 17875505, at *2 (May 10, 1995). The
 Secretary explained that any records created by the VA,
 and related to a matter, are constructively part of the rec-
 ord for that matter.
      Over the years, the Veterans Court has refined the Bell
 principle. It has found some documents insufficiently re-
 lated to a given matter to fall within the rule. Non-VA doc-
 uments, for example, are not generally subject to the Bell
 rule and must normally actually be presented to the VA
 adjudicator. See Bowey v. West, 11 Vet. App. 106, 108–09
 (1998) (holding that mere reference to non-VA documents
 is insufficient to incorporate them into a record). And rec-
 ords generated by the VA as to one claimant are not nor-
 mally constructively part of every claimant’s record. See
 Monzingo v. Shinseki, 26 Vet. App. 97, 102 (2012) (“[W]hen
 a document is generated by [the] VA, it will not be consid-
 ered constructively before the Board in a particular claim-
 ant’s case unless the document has a direct relationship to
 the claimant’s appeal.”); Goodwin v. West, 11 Vet. App. 494,
 496 (1998). The Veterans Court has never, however, re-
 quired that a veteran, or anyone else, take affirmative ac-
 tion for the veteran’s own VA-generated medical records to
 become part of the record.
     Recently, in Turner v. Shulkin, 29 Vet. App. 207 (2018),
 the Veterans Court considered whether certain documents
 created by the VA after a decision are “received” for pur-
 poses of 38 C.F.R. § 3.156(b). The regulation, in relevant
 part, provides:
     New and material evidence received prior to the ex-
     piration of the appeal period, or prior to the appel-
     late decision if a timely appeal has been filed . . . ,
     will be considered as having been filed in connec-
     tion with the claim which was pending at the be-
     ginning of the appeal period.
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 8                                             LANG   v. WILKIE



 38 C.F.R. § 3.156(b). The Veterans Court held, consistent
 with Bell, that certain documents may be constructively re-
 ceived by the VA during the one-year period for appeal.
 Turner, 29 Vet. App. at 216–17. But, unlike Bell, the
 Turner court further held that there must be a “triggering
 principle involved.” Id. at 217. It explained:
     [C]onstructive receipt in the context of 38 C.F.R.
     § 3.156(b), dealing exclusively with VA treatment
     records, requires knowledge by VA adjudicators at
     the [Veterans Benefits Administration (“VBA”)] of
     the existence of those VA treatment records within
     the one-year appeal period.          In determining
     whether constructive possession has been trig-
     gered as to VA treatment records, those records
     must have been generated by a VA medical facility
     and VA adjudicators at the VBA must have suffi-
     cient knowledge that such records exist. In addi-
     tion, based on the Federal Circuit’s decision in
     Sullivan, VA’s constructive receipt of such records
     is not tied to their relevance to the claim.
 Id. at 218. As to the knowledge requirement, the Veterans
 Court noted that the determination is a factual question
 and should be guided by the general principles underlying
 the VA’s duty to assist. Id.
     Lang argues that Turner, as to the “triggering princi-
 ple,” is contrary to established Veterans Court law. We
 agree. The Veterans Court provided very little explanation
 for its decision to add an additional actual knowledge re-
 quirement to the otherwise well-established Bell doctrine
 of constructive receipt. It merely stated, “[t]he impact of
 applying the correct legal rule on an agency is not a reason
 to turn a blind eye to the law. Nevertheless, the practical
 impact of a legal rule can certainly frame how that legal
 rule is applied.” Id. at 217. It then rejected without expla-
 nation Turner’s argument “that constructive receipt of VA
 treatment records is, essentially, co-extensive with the
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 LANG    v. WILKIE                                           9



 creation of records by VA” personnel by concluding, “some-
 thing more than mere creation is required.” Id. We hold
 that the Veterans Court in Turner articulated an erroneous
 statement of the law when it failed to adequately address
 Bell and its progeny.
      The Veterans Court has consistently held, with the
 Secretary in full agreement, that, in the context of records
 created prior to a decision, all relevant and reasonably con-
 nected VA-generated documents are part of the record and,
 therefore, constructively known by the VA adjudicator. See
 e.g., Bowey, 11 Vet. App. at 108–09; Vet. Aff. Op. Gen.
 Couns. Prec. 12-95, 1995 WL 17875505, at *2. The Veter-
 ans Court provided no reasoning to support a different test
 in the post-decision context. We see none. 2 Thus, while we
 agree with the Veterans Court’s conclusion in Turner that
 the Bell doctrine of constructive receipt applies to 38 C.F.R.
 § 3.156(b), we hold that records received in the post-deci-
 sion context must be evaluated under the same framework
 applied to records generated prior to a decision. 3 Evidence
 is constructively received by the VA adjudicator post-deci-
 sion if it (1) was generated by the VA or was submitted to
 the VA and (2) can reasonably be expected to be connected
 to the veteran’s claim. 4 See Monzingo, 26 Vet. App. at 101–



     2   Although the government argues that we are not
 obligated to apply Bell, it does not provide any compelling
 reason for us to apply different rules in the two contexts.
     3   We note that the government seems to agree with
 this understanding of the law of constructive receipt under
 Bell and does not seriously defend the Turner court’s “trig-
 gering principle.” To the extent the government contends
 that we are not bound to follow Bell or bound to extend Bell
 to the circumstances of Turner, the government did not
 challenge those decisions on appeal.
     4   We do not attempt to exhaustively consider the var-
 ious circumstances in which a veteran may establish
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 10                                             LANG   v. WILKIE



 02. There is no requirement that the VA adjudicator have
 any actual knowledge of the evidence for this principle to
 apply.
     Applying the principle to this case, Lang’s post-decision
 medical records were constructively received by the VA ad-
 judicator prior to the expiration of the one-year appeal pe-
 riod. Medical records created by the VAMC as a result of
 the treatment of a specific veteran are necessarily received
 by the VA adjudicator of that veteran’s claims because all
 such records can reasonably be expected to be connected to
 the veteran’s claims. 5 Cf. Sullivan, 815 F.3d at 793 (hold-
 ing that the VA’s duty to assist in retrieving a veteran’s
 medical records is not limited to records that are relevant
 to a specific claim). A veteran’s own medical records, gen-
 erated by the VA itself, are always reasonably related to a
 veteran’s claim.



 constructive receipt for purposes of 38 C.F.R. § 3.156(b).
 The Board and Veterans Court should continue to develop
 this area of the law, consistent with Bell and the basic guid-
 ance provided in this opinion.
      5   The government argues that this rule may intro-
 duce uncertainty into the finality of many claims. Appel-
 lee’s Br. 31–33. That a correct application of law may
 result in additional work for an agency is not a reason to
 change the law. Further, a widespread resurrection of
 claims is unlikely. Claims will only be subject to further
 proceedings if new and material evidence exists in a vet-
 eran’s VAMC medical records created in the year following
 a decision. Certainly, the VA may be asked with greater
 frequency to acquire and review those records. It is likely,
 however, that only a small portion of the cases will reveal
 new and material evidence. In such cases, it is unquestion-
 ably the correct result, both as a matter of policy and the
 law, for the veteran to receive the benefit of that additional
 evaluation.
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 LANG   v. WILKIE                                          11



     Here, Lang received a decision on his claim on June 18,
 1996. It is undisputed that he continued treatment for
 PTSD at the Pittsburgh VAMC during the next year, from
 June 1996 to June 1997. Any records created by the Pitts-
 burgh VAMC as to Lang during that one-year period were
 therefore in the possession of the VA and constructively re-
 ceived by the VA adjudicator in reference to Lang’s claim
 for purposes of 38 C.F.R. § 3.156(b).
     A claim, such as Lang’s, remains open until the VA de-
 termines whether post-decision evidence received within
 the one-year appeal period is “new and material.” See Be-
 raud, 766 F.3d at 1407. The Board made no such determi-
 nation as to Lang’s post-decision medical records. The
 1996 rating decision was, thus, not final and a CUE analy-
 sis was not required. See 38 C.F.R. § 3.105(a) (allowing
 CUE review of “final” decisions). Given this, the Veterans
 Court erred when it declined to remand Lang’s claim to the
 Board to review the post-decision VAMC medical records
 for new and material evidence.
                              III
     We conclude that a VA adjudicator does not need any
 actual knowledge of VAMC medical records to establish
 constructive receipt. The well-established Bell rule for
 when the VA has constructive knowledge of VA-created
 documents contains no such requirement. We hold there is
 no legal basis for adding such a requirement in the post-
 decision context. Accordingly, we vacate the decision of the
 Veterans Court and remand for the Veterans Court to re-
 mand this case to the Board for further proceedings con-
 sistent with this opinion.
                VACATED AND REMANDED
                             COSTS
     Costs to appellant.
