Cook v. Wilkie

United States Court of Appeals
for the Federal Circuit
______________________

WARREN B. COOK,
Claimant-Appellee

v.

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

2017-2181
______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-873, Judge Coral Wong Pi-
etsch, Judge Margaret C. Bartley, Senior Judge Lawrence
B. Hagel.
______________________

Decided: November 13, 2018
______________________

KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellee.
Also represented by FRANCIS M. JACKSON, Jackson &
MacNichol, South Portland, ME.

BARBARA E. THOMAS, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellant. Also
represented by CLAUDIA BURKE, ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT; BRIAN D. GRIFFIN,
2 COOK v. WILKIE

BRANDON A. JONAS, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.

JOHN D. NILES, Covington & Burling LLP, Washing-
ton, DC, argued for amicus curiae National Association of
Veterans’ Advocates, Inc. Also represented by, EINAR
STOLE; MARK RYAN LIPPMAN, The Veterans Law Group,
La Jolla, CA.
______________________

Before NEWMAN, LOURIE, and CLEVENGER, Circuit Judges.
LOURIE, Circuit Judge.
The Secretary of Veterans Affairs (“the Secretary” or
“VA”) appeals from the decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
vacating the decision of the Board of Veterans’ Appeals
(“Board”) and remanding for the Board to grant Appellee
Warren B. Cook an additional hearing. Cook v. Snyder,
28 Vet. App. 330, 346 (2017) (“Decision”). Because the
Veterans Court did not err in concluding that Cook was
entitled to an opportunity for a further Board hearing, we
affirm.
I. BACKGROUND
In the Veterans’ Judicial Review Act, Congress codi-
fied a veteran’s longstanding right to a Board hearing.
Under the provision at issue, “[t]he Board shall decide any
appeal only after affording the appellant an opportunity
for a hearing.” 38 U.S.C. § 7107(b) (2012) (emphases
added). 1 The parties dispute whether § 7107(b) requires

1 Congress has recently amended this provision, see
Veterans Appeals Improvement and Modernization Act of
2017, Pub. L. No. 115-55, § 2(t), 131 Stat. 1105, 1112–13
(2017), and the amended scheme will become generally
applicable to appeals arising from claims initially decided
COOK v. WILKIE 3

the Board to provide an opportunity for another hearing
when it reconsiders an appeal after a vacatur and remand
from the Veterans Court. In particular, the Secretary
urges that if the Board has already held a hearing earlier
in a case, § 7107(b) does not require an opportunity for an
additional hearing post-remand. Cook and his supporting
amicus, the National Organization of Veterans’ Advocates
(collectively, “Cook”), argue that § 7107(b) entitles an
appellant to an opportunity for a hearing whenever the
Board decides an appeal, including on remand.
The Veterans Court agreed with Cook. Its decision
details the factual and procedural history of Cook’s case.
Decision, 28 Vet. App. at 333–34. We discuss only the
facts pertinent to this appeal, which solely concerns the
interpretation of § 7107(b).
A.
Cook served on active duty in the Navy from 1972 to
1973. Id. at 333. During this period, Cook’s service
records indicated that he experienced back pain. Id. In
2000, Cook sought service connection for certain back
problems and later filed a claim for total disability based
on individual unemployability (“TDIU”), also back-
related. Id. at 333–34. The regional office (“RO”) denied
both claims. Id. at 333. Cook appealed to the Board and
testified at a Board hearing in 2012 about his back prob-
lems and their effects on his employment. Id. The Board
remanded both the service connection and TDIU claims to
the RO for further development, but the RO denied both
claims. Id. at 333–34.
Cook again appealed to the Board and requested an
additional hearing to present further evidence. Id. at 334.

after a date that has not yet been determined, id. § 2(x),
131 Stat. at 1115; Appellant’s Br. 28. The amended
statute is indisputably not applicable to this appeal.
4 COOK v. WILKIE

The Board denied Cook that additional hearing, explain-
ing that Cook “was already afforded a Board hearing” and
that “no further hearing is necessary,” J.A. 129, and
denied both of his claims. Cook appealed to the Veterans
Court, which, upon joint motion by Cook and the Secre-
tary, vacated the Board’s decision and remanded for
further proceedings because the Board did not adequately
explain its decision. Decision, 28 Vet. App. at 334. Specif-
ically, the parties agreed that the Board failed to identify
or discuss a medical report supporting Cook’s claim.
J.A. 192–94, 196.
On remand, Cook again requested another Board
hearing to “present[] additional evidence in the form of
[his] testimony.” Decision, 28 Vet. App. at 334 (altera-
tions in original). As in his previous appeal, the Board
denied Cook such a hearing, reasoning that “[a]s the
Veteran has been afforded a Board hearing, no further
hearing is necessary.” J.A. 142. The Board also denied
Cook’s claims for service connection and TDIU. Decision,
28 Vet. App. at 334.
Cook appealed to the Veterans Court, arguing that
the Board violated his constitutional due process rights by
denying his request for a further hearing. The Veterans
Court referred the case to a three-judge panel and re-
quested supplemental briefing on whether any statute or
regulation entitled Cook to a Board hearing on remand
when a Board hearing had already been provided.
B.
In its decision now on appeal, the Veterans Court con-
sidered the question of statutory interpretation at issue
under the framework applied in Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). The Veterans Court held that the plain language
of § 7107(b) did not clearly answer whether a claimant is
entitled to a post-remand Board hearing when he has
already had a previous Board hearing. Decision, 28 Vet.
COOK v. WILKIE 5

App. at 338–39. Nonetheless, the court determined that
the agency’s interpretation—that § 7107(b) guarantees a
claimant only a single Board hearing over the lifetime of
his claim—did not warrant Chevron deference. Id. at 339.
There were two reasons stated for this. First, the regula-
tion proffered by the Secretary did not resolve the ambi-
guity in the statute and just repeated the ambiguous
statutory language with minor differences in phrasing.
Id. (discussing 38 C.F.R. § 20.700(a) (“A hearing on appeal
will be granted if an appellant . . . expresses a desire to
appear in person.”)). Second, the regulation predated the
statute, so the regulation “cannot possibly have been
promulgated to interpret” the statute. Id. at 339–40. As
Chevron deference did not apply, the Veterans Court
interpreted the statute under the principles of Skidmore
v. Swift & Co., 323 U.S. 134 (1944). Id. at 340. The court
thus considered the Secretary’s interpretation and “all
those factors which give it power to persuade, if lacking
power to control.” Id. (quoting Skidmore, 323 U.S. at
140).
Considering the plain meaning of § 7107(b), the Vet-
erans Court concluded that the Secretary’s interpretation
lacked such power. The phrase “an opportunity for a
hearing,” according to the court, did not resolve the par-
ties’ dispute because the indefinite articles “a” and “an”
may mean “one” or “any,” depending on context. Id. at
340–41. Nor did the language of § 7107(b) as a whole.
Although the Veterans Court considered the phrase “shall
decide any appeal” to somewhat favor Cook’s interpreta-
tion as “it suggests that the Board must provide a hearing
each or any time an appeal is before it for a decision,” the
court also observed that the statute did not clearly con-
template multiple Board hearings upon request. Id. at
341.
The court therefore turned to the overall statutory
scheme. This favored Cook’s right to a post-remand
Board hearing, the court reasoned, as the overall veter-
6 COOK v. WILKIE

ans’ adjudicatory process is solicitous of veterans’ claims.
Id. at 342. As the focus of a veteran’s claim may evolve
over its lifetime, the court determined that construing
§ 7107(b) as providing only an entitlement to a single
Board hearing “would be neither solicitous of a claimant
nor productive of informed Board decisionmaking.” Id.
Furthermore, the Veterans Court noted that in these
circumstances “any doubt in the interpretation of a VA
statute must be resolved in favor of a veteran.” Id. at 345.
Thus, the Veterans Court ultimately concluded that
§ 7107(b) entitles an appellant to an opportunity for a
Board hearing following a vacatur and remand from the
Veterans Court, even if that appellant was previously
given a Board hearing in the case. Id. at 346. The court
vacated the Board’s decision and remanded for additional
proceedings. The Secretary’s appeal here followed.
II. DISCUSSION
A.
We have jurisdiction over appeals from the Veterans
Court “with respect to the validity of a decision of the
[Veterans] Court on . . . any statute or regulation . . . or
any interpretation thereof (other than a determination as
to a factual matter) that was relied on by the [Veterans]
Court in making the decision.” 38 U.S.C. § 7292(a); see id.
§ 7292(d)(1) (“The Court of Appeals for the Federal Circuit
shall decide all relevant questions of law, including inter-
preting constitutional and statutory provisions.”). While
this statutory grant of jurisdiction does not explicitly
premise appellate review on the finality of a decision from
the Veterans Court, we generally do not review non-final
decisions from that court such as the remand order here.
See, e.g., Williams v. Principi, 275 F.3d 1361, 1363–64
(Fed. Cir. 2002).
There is an exception to the finality rule that applies
if the following conditions are met:
COOK v. WILKIE 7

(1) there must have been a clear and final decision
of a legal issue that . . . will directly govern the
remand proceedings . . . ; (2) the resolution of the
legal issues must adversely affect the party seek-
ing review; and, (3) there must be a substantial
risk that the decision would not survive a remand,
i.e., that the remand proceeding may moot the is-
sue.
Williams, 275 F.3d at 1364 (footnotes omitted).
Both the Secretary and Cook agree that the decision
of the Veterans Court satisfies each condition, see Appel-
lant’s Br. 2–3; Appellee’s Br. 1, with the Secretary argu-
ing as follows. First, the court decided a legal question of
statutory interpretation that will “directly govern” the
remand proceedings by requiring the Board to give Cook
an opportunity for a hearing. Second, the court’s con-
struction of § 7107(b) adversely affects the agency by
forcing it to reallocate resources to provide additional
Board hearings for Cook and similarly situated appel-
lants. Third, remanding and enforcing the Veterans
Court’s order would cause the Board to hold a hearing,
mooting the issue of whether Cook is entitled to a hearing
on remand at all.
We agree with the parties that the exception to finali-
ty summarized in Williams squarely applies to this ap-
peal: (1) the Veterans Court’s interpretation of § 7107(b)
would directly govern the remand proceedings by requir-
ing the Board to hold a hearing; (2) that interpretation
adversely affects the agency by forcing it to divert re-
sources to hold more hearings, contrary to the Secretary’s
wishes; and (3) waiting for the remand and Board hearing
would moot the issue of whether such a hearing is re-
quired.
Consequently, we conclude that we have jurisdiction
over the legal question concerning the Veterans Court’s
8 COOK v. WILKIE

interpretation of § 7107(b). 38 U.S.C. § 7292(d)(1). We
therefore proceed to the merits.
B.
We review the Veterans Court’s statutory interpreta-
tion de novo. DeLaRosa v. Peake, 515 F.3d 1319, 1321
(Fed. Cir. 2008). The Secretary has not requested Chev-
ron deference for his interpretation, and we agree with
the Veterans Court’s conclusion that no such deference is
warranted because the Secretary has not promulgated a
regulation interpreting § 7107(b). See Decision, 28 Vet.
App. at 339–40. Accordingly, we will ascertain the best
meaning of § 7107(b) “by employing the traditional tools
of statutory construction; we examine the statute’s text,
structure, and legislative history, and apply the relevant
canons of interpretation.” Delverde, SrL v. United States,
202 F.3d 1360, 1363 (Fed. Cir. 2000).
The Secretary argues that § 7107(b) does not entitle a
claimant to a Board hearing after remand from the Veter-
ans Court if the Board has already given the claimant a
hearing earlier in the case. According to the Secretary,
the word “appeal” only refers to the submission of certain
forms for the Board’s initial review and does not encom-
pass subsequent adjudications on remand.
Cook responds that the plain language of § 7107(b)
unambiguously entitles a claimant to a Board hearing
before the Board decides any appeal, including after a
remand. Even if the statute is ambiguous, Cook argues
that § 7107(b) should be interpreted in favor of a claim-
ant’s request for a post-remand hearing.
We agree with Cook that § 7107(b) entitles him to an
opportunity for an additional Board hearing in these
circumstances. As always, we begin with the text of the
statute. Section 7107(b) reads as follows: “[t]he Board
shall decide any appeal only after affording the appellant
an opportunity for a hearing.” Thus, before the Board
COOK v. WILKIE 9

“decide[s] any appeal,” it must afford the appellant “an
opportunity for a hearing.”
We first address the phrase “decide any appeal.” As
the Supreme Court has recently observed, “the word ‘any’
naturally carries ‘an expansive meaning.’” SAS Inst., Inc.
v. Iancu, 138 S. Ct. 1348, 1354 (2018) (quoting United
States v. Gonzales, 520 U.S. 1, 5 (1997)). When coupled
with a singular noun in an affirmative context, “any”
typically “refer[s] to a member of a particular group or
class without distinction or limitation” and “impl[ies]
every member of the class or group.” Id. (alterations and
emphasis in original) (quoting Oxford English Dictionary
(3d ed., Mar. 2016)); see also Barsebäck Kraft AB v. Unit-
ed States, 121 F.3d 1475, 1481 (Fed. Cir. 1997) (“‘[A]ny’ is
generally used in the sense of ‘all’ or ‘every’ and its mean-
ing is most comprehensive.”). In § 7107(b), the word “any”
modifies the singular “appeal” in an affirmative context,
i.e., the statute imposes a positive duty on the Board to
provide an opportunity for a hearing before it decides any
appeal. Accordingly, the phrase “any appeal” indicates
that the Board is not free to curate which appeals are
entitled to “an opportunity for a hearing.” See SAS Inst.,
138 S. Ct. at 1353. The Board must provide such an
opportunity before it decides every appeal.
The next question is whether the Board decides an
“appeal” when it again reviews an RO’s decision following
an order of the Veterans Court vacating and remanding
the Board’s prior decision. Again, the text supplies an
answer. An appeal is “[a] proceeding undertaken to have
a decision reconsidered by a higher authority; esp[ecially],
the submission of a lower court’s or agency’s decision to a
higher court for review and possible reversal.” Appeal,
Black’s Law Dictionary (10th ed. 2014). Here, the Veter-
ans Court vacated the Board’s decision. This “nullif[ied]
or cancel[led]” the decision, making it void. Vacate,
Black’s Law Dictionary (10th ed. 2014). As the Veterans
Court voided the Board’s prior decision, on remand the
10 COOK v. WILKIE

Board must review the RO’s decision anew in accordance
with the Veterans Court’s instructions. In other words,
the Board must again decide the appeal, or a “proceeding
undertaken to have a decision reconsidered by a higher
authority.” Because the Board must decide the appeal on
remand, we conclude that § 7107(b) requires the Board to
afford the appellant an opportunity for another hearing. 2
The Secretary does not dispute the ordinary meaning
of “appeal,” but emphasizes interpreting an appeal as “the
submission of a lower court’s or agency’s decision to a
higher court for review and possible reversal.” Appeal,
Black’s Law Dictionary (10th ed. 2014) (emphasis added).
That aspect of an appeal, the Secretary contends, is
consistent with the agency’s own regulation defining an
“appeal” as consisting of “a timely filed Notice of Disa-
greement . . . and, after a Statement of the Case has been
furnished, a timely filed Substantive Appeal.” 38 C.F.R.
§ 20.200. We agree with the Secretary that these authori-
ties may help to illuminate the meaning of “appeal,” but
they do not resolve the instant question of statutory
interpretation. That is because § 7107(b) conditions the
Board deciding an appeal on affording an appellant an
opportunity for a hearing. Consequently, when an appeal
is again reviewed and decided by the Board on remand, a
claimant is entitled to an additional opportunity for a
hearing.
In sum, the text of § 7107(b) better supports Cook’s
argument that the Board must provide a claimant an
opportunity for a hearing before it decides every appeal,

2 We do not hold that all remand orders from the
Veterans Court to the Board necessarily trigger the
opportunity for a hearing requirement of § 7107(b).
Certain ministerial remands, for example, may not re-
quire the Board to decide an appeal.
COOK v. WILKIE 11

including after remand from the Veterans Court. We
therefore affirm the Veterans Court’s decision.
CONCLUSION
We have considered the Secretary’s remaining argu-
ments but find them unpersuasive. For the foregoing
reasons, we affirm the decision of the Veterans Court.
AFFIRMED