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Federal Circuit Decision: Euzebio v. McDonough

Video Transcription:

Zach Stolz: Hello, I am Zach Stolz from Chisholm Chisholm and Kilpatrick, and welcome to this CCK Veterans Legal Lowdown. Today, we are going to talk about the Euzebio case, which was a case our firm handled at the Court of Appeals for the federal circuit, and which was handed down very, very recently.

And so bear with this, while we are still digesting what is a very important case. But we are the team that primarily worked on this. And that team consists of my colleagues, Barb Cook who is here, and April Donahower. And we are going to walk through a little bit about this decision, about what the federal circuit is, and about what it means so far, for veterans bearing in mind, that everything in Veterans Law changes, in particular, how this case is going to be utilized going forward. Because anytime something happens at the federal circuit, it takes a little while for it to really reverberate, through the Department of Veterans Affairs, and the Board of Veterans Appeals, and the Court of Appeals for Veterans Claims.

And so these are just going to be initial thoughts from the people who really handled the case, who handled Mr. Euzebio’s case. So I am going to start us off, aside from what I just did, and introducing my colleagues. Just explaining a little bit about what the US Court of Appeals for the federal circuit is, and you can find more information about this on our website as well. We have talked about it in a couple of other places.

But just real quickly, the way the VA system works, is there are Regional Offices, there is the Board of Veterans Appeals, and if you are dissatisfied with your decision there, you are able to appeal to federal court. And the federal court that oversees the Board of Veterans Appeals, is the Court of Appeals for Veterans Claims, which sits in Washington DC. There are 9 judges on that court.

There is a court that oversees that court, and that court is called the United States Court of Appeals for the Federal Circuit. It has an extraordinarily limited jurisdiction, which is to say, that while anybody who is dissatisfied with their board decision, can go to the Court of Appeals for Veterans Claims.

Really not just anybody who is dissatisfied with their court decision can go to the federal circuit. And the reason for that, is the federal circuit only looks at pure legal questions. So the federal circuit is not going to examine the facts of a veteran’s case. It is going to bear a lot of deference, to what the agency did when it was handling the veterans case with the VA did. And it is not going to question very much about what the Court of Appeals for Veterans Claims. And I know I keep saying court so much, but what the veterans court, let us call it that, it is not going to spend a lot of time concerning itself with what the veterans court did, aside from questions of law that that court answered.

And so, while there are thousands of appeals that go to the veterans court every year, there are hundreds of appeals that go to the federal circuit in a given year. And this was one of them, Mr. Euzebio’s case. And so I am going to hand it over to April, to talk a little bit about what happened with Mr. Euzebio, why we appealed his case to the federal circuit, and what happened there.

And April did a lot of the work, most of the work, she had involved on pleading this case. I had the honor of arguing it, which was an oral argument at the federal circuit, which we can talk about a little bit after April talks about the case. But she is the one who did most of the work on this. So she is the one who knows the case best. So April, please talk about Mr. Euzebio.

April Donahower: Mr. Euzebio is a Vietnam veteran. He served 2 tours of Duty in Vietnam, where he was exposed to Agent Orange. A number of years after service, Mr. Euzebio developed some benign nodules on his thyroid. And he did not have a family history, or any other risk factors for that condition. And he believed that it was related to his exposure to Agent Orange. So he filed a claim for disability compensation with VA. He asked for an exam to see what connection there was between his agent orange exposure and his condition.

But VA denied his claim, so he appealed up to the Board of Veterans Appeals. In the meantime, a group called the National Academy of Sciences, released its latest report about the health effects of Agent Orange exposure. By law, it provides a report every few years about this to VA. And in that report, which came out in 2014, and identified some connections between various thyroid conditions and Agent Orange exposure. But despite that report, the board denied his claim. At that point, our firm represented Mr. Euzebio and his appeal of the board’s decision to the veterans’ cords.

And I will just briefly touch on what happened at the veterans’ court. That court denied the appeal and affirmed the board’s decision. It found that even though there was this report, and VA knew about that report, that it was not in the record in Mr. Euzebio’s case because it did not bear a direct relationship to his claim. And therefore, there was no error and considering the facts in that report about thyroid conditions, before denying him an exam and denying his claim. So that led to the appeal to the federal circuit that we are talking about today.

Zach: And what happened at the federal circuit? What was really the holding and how is this going to kind of help veterans going forward, April? Real quickly, before we have Barb expound on that question a little bit.

April: The main issue at the federal circuit was that direct relationship test, that the veterans court applied. It said that because the Agent Orange report was not specific to Mr. Euzebio, it could not be what is called constructively in the record before the board. Rather, it had to be in some way, more directly related to him or his claim.

And so, we challenge that at the federal circuit, and argued that all the report had to be was relevant. It did not have to have a direct relationship or be specific at all to Mr. Euzebio, but just had to be relevant to the claim. And because it dealt with the health effects of Agent Orange exposure, which was the basis of his claim, and also mentioned thyroid conditions, that it was relevant to his claim, and had to be considered before the board could decide whether he was entitled to a medical exam.

Zach: So putting it into a little bit of English, which I am going to ask Barb to help me with, because it gets very, especially because this went to so many courts, you can tell that a lot of lawyers were gone, which means a lot of legalese. But the upshot of this Barb, is VA cannot pretend that evidence it knows about, just does not exist, right?

Barb Cook: That really is the essence of this case. They admitted, the board admitted, the VA’s lawyer admitted, that the board knew about this report. And yet still, the veterans court had held that the board did not have an obligation to read the report, or consider it important in any way, when it was deciding whether Mr. Euzebio was entitled to an examination ,about whether there was a relationship between his thyroid condition and his exposure to herbicides in Vietnam.

So that is, in some ways, a little surprising that it took a court to say that, but that is the real, key essence of this case. And it makes a huge difference, for many veterans, I think. Because obviously, now, this NAS report, the Agent Orange report, some people call it, the board is going to be presumed to know about it, even if the veteran does not remember, or does not know how to submit it to the regional office or the board.

Obviously, when someone is still at the agency level, whether it is the regional office or the board, it is best to submit every single piece of evidence that you think might be relevant, and every single document if you think that this report might be relevant ,or pages from the report might be relevant. It is best to submit it. It is best to submit. People sometimes rely on websites, or other veterans board decisions. It is best to submit those, actually, to the to VA, whether it be the regional office of the board, assuming that evidence is still, assuming the record is still open.

But sometimes, people are not able to do that for whatever reason. Sometimes the records are already closed. Sometimes they just do not know how to do it.

Zach: Sometimes they expect the VA to know about things VA should know about, right?

Barb: Sometimes they think that. Sometimes they do submit it, but it does not get into the record because of the delays in mail, or all sorts of, where you know, the mail gets lost. There is all sorts of reasons why these things might not be in the record.

And so going forward, at the very least, this Agent Orange, NAS report, the board and the regional office are presumed to know about them. And if they are relevant to the case, they need to be looking at that, in terms of deciding actually the merits of the case, you know, whether the vet wins or losses. But also, as in Mr. Euzebio’s case, whether it is enough information just to provide some indication, that the person’s condition might be related to herbicide exposure.

Zach: And the other thing that is interesting about this case, and what… You know, I mentioned that it went to, that we were in the federal circuit, I mentioned a little bit that I did the oral argument, the case in April did an oral argument at the Court of Appeals for Veterans Claims. So there were 2 whole oral arguments, before a total of 6 federal judges, to reach this decision, which is, essentially, that VA really does have a duty to it. We really mean it, VA has a duty to assist veterans, and that does entail as well, really considering the evidence, it should know about.

At the end of the day, this is going to go back to the veterans’ court, that the federal circuit is sending it back to them with some legal instructions. Hopefully, what would happen there, and what we clearly want to happen there, is the veterans’ court will send it back to the board. But even at the end of this entirely long process, Mr. Euzebio’s best day is going to be, to essentially get another examination, and for VA to really comply with its procedures.

Which gives you an idea, I think. And another takeaway from this is to have good advocacy, from DAV or other veteran service organizations, or from CCK. Because stuff gets pretty complicated. And even when VA has this duty to assist you, and is supposed to be non-adversarial. Bear in mind that once it went to court, they became very adversarial, and really did try hard to say that they did not have to consider this report.

So that is another one of the up- shots. Not to be pessimistic about it, because it is a really optimistic decision and an optimistic day. It is just being realistic about how the process does play out practically.

Barb: I would say there is a couple other things that I would add about the decision. Obviously, as you said at the very beginning, Zach, we have no idea how this is going to play out, going forward. But you know, the decision is based, the federal circuit’s decision, is based in part, on the fact that VA was aware of this report. It was a study done for VA, to assess the impact of Agent Orange. So that theory, what is it that VA knows about, and when did they know it, kind of thing? That may be applied in other circumstances.

VA has a lot of information about PTSD, about things that were going on in the Gulf, Fort Mac, Korea. I mean, all the time and all sorts of places where things were going on, and VA has done some studies about that stuff. And so maybe those records also are part of the evidentiary record, before the agency. It is really unclear. It is just that, I think that, that is sort of how many practitioners might be looking at this.

The other thing I want to say about the decision is that, I would encourage any, certainly, I would encourage everyone to read it even if you are not a lawyer. But certainly, Vietnam vets, I would really encourage you to read it because it is such a vindication of the challenges and struggles that Vietnam veterans faced and fought and endured, in trying to get their disabilities related to Agent Orange recognized. It is a very empathetic and powerful decision in that regard. And like I said, I think it is a real vindication of that aspect, of people’s…

Zach: Yeah, reading the decision is interesting. Judge Wallach, who is the Federal Circuit Judge who wrote the decision for the court, really has a lot of history in it, as well as legal analysis, as Barb said. And please, I would encourage anyone to listen to April’s, these are all public, you can listen to April’s excellent oral argument at the Court of Appeals for Veterans Claims. The oral argument that I participated in at the federal circuit, it is all very open. What went on with this case, and hopefully, it is of interest to all veterans. And as Barb says in particular, Vietnam veterans.

April, do you have any final thoughts before we kind of close up?

April: I would just add that the federal circuit really built on some of the practical considerations that Judge Allen pointed out in the dissent, in the Veterans Court opinion, about how things work on the ground. And many board members do consider these NAS updates and certain veteran’s claims. And other board members do not consider them in very similar claims of other veterans. So this decision is a great step forward and ensuring that all veterans get the same treatment when the facts of their case implicate this information.

Zach: Very well said. Alright. I think that does it for this quick discussion of the Euzebio case. Thank you to Barb Cook, and April Donahower. I am Zach Stolz, thank you very much for listening.