Sprinkle v. Shinseki, 733 F.3d 1180 (Fed. Cir. Oct. 24, 2013)
The fair process doctrine is not implicated when a regional office considers and summarizes new evidence in a Supplemental Statement of the Case (SSOC). The fair process doctrine is only triggered when the Board obtains evidence after the SOC or SSOC has been issued.
In this case, the Board remanded to the RO to obtain a medical opinion. The RO obtained the medical evidence and summarized it in an SSOC, in which the veteran was informed that he had 30 days to submit additional evidence. The veteran responded that he had no additional evidence to submit and requested that the RO return his case to the Board. The RO certified the case to the Board and informed the veteran that he had 90 days to send the Board additional evidence. The veteran then retained an attorney, who requested a copy of all evidence obtained by VA since December 2004, which would include the most recent medical opinion. The attorney submitted this request, along with subsequent follow-up requests, to the RO. Because the appeal had been certified to the Board – and the veteran’s file was already at the Board – the RO forwarded the requests to Washington, DC. The Board finally sent the attorney the requested documents – and issued a decision less than 30 days later. The veteran appealed, arguing that the Board failed to afford him fair process by not providing him a copy of the newly obtained medical opinion until less than 30 days before issuing its decision. The CAVC affirmed the Board’s decision, finding that the veteran had not been denied fair process.
The Federal Circuit agreed, explaining that the regulation regarding advisory medical opinions obtained by the Board, 38 C.F.R. § 20.903(a), does not apply when the RO obtains a medical opinion. The Court found that the “fair process doctrine,” developed by the Veterans Court in the context of evidence obtained and relied on by the Board after the issuance of the most recent SOC or SSOC, is not implicated when the RO obtains evidence and summarizes it in an SSOC. The Federal Circuit noted that the veteran in this case “has not challenged the adequacy of the summary” and that he had 30 days to respond to the SSOC. The Federal Circuit held that “[b]ecause the [RO] received and considered the evidence before summarizing it in a [SSOC], this case does not implicate the statutory exception to the prohibition against first-instance Board review of evidence that the fair process doctrine is designed to safeguard.” Advocacy Practice Note: If you have requested and not received medical evidence developed by the RO that has been summarized in an SOC or SSOC, challenge the summary of the evidence and state that you will clarify your challenge once you have received and have had a chance to review the evidence.