HomeVeterans Guide to VA Claim FilingCourt of Appeals for Veterans Claims (CAVC)The Court

10.2. The Court

"[T]he appellant . . . always bears the burden of persuasion on appeals to [the] Court."  Berger v. Brown, 10 Vet. App. 166, 169 (1997).  "The Court requires that an appellant plead with some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant's arguments."  Coker v. Nicholson, 19 Vet. App. 439, 442 (2006).  "An appellant bears the burden of persuasion on appeals to this Court."  Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).  The Court is unable to find error when arguments are "far too terse to warrant detailed analysis by the Court."  See Locklear v. Nicholson, 20 Vet. App. 410, 416 (2006).  Issues or claims not argued on appeal are considered abandoned).  Grivois v. Brown, 6 Vet. App. 136, 138 (1994); see also Mayfield v. Nicholson, 19 Vet. App. 103, 111 (2005) (noting that "every appellant must carry the general burden of persuasion regarding contentions of error"); Evans v. West, 12 Vet. App. 22, 31 (1998) (noting that the Court cannot be expected to consider "vague assertion[s]" or "unsupported contention[s]").  If an appellant did not present any meaningful argument in support of his appeal, it appears that he has abandoned his appeal.  Ford v. Gober, 10 Vet. App. 531, 535 (1997).

The Court is a court of review and is precluded by statute from considering any material that was not contained in the "record of proceedings before the Secretary and the Board."  38 U.S.C. § 7252(b).  However, in certain circumstances, records may be deemed to be constructively before the Board.  See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Specifically, the Court has held that [w]here "relevant" documents relating to an appellant's claim were within the Secretary's control (for example, records generated by VA or communications received by it) prior to the B[oard] decision on appeal and could reasonably have been expected to be part of the record before the Secretary and the Board, such documents are "in contemplation of law" constructively part of the record of those proceedings.  Blount v. West, 11 Vet. App. 32, 33 (1998) (per curiam order) (citing Simington v. Brown, 9 Vet. App. 334, 335 (1996)); see also Bell, 2 Vet. App. at 612-13.

When there is neither an NOD nor a final Board decision with respect to the issue of non-service-connected pension, the Court lacks jurisdiction to review that issue on appeal.  38 U.S.C. § 7252; Hampton v. Gober, 10 Vet. App. 481, 483 (1997); Kandik v. Brown, 9 Vet. App. 434, 438 (1996) (Court is without jurisdiction to address claim absent a jurisdiction-conferring NOD).  Breeden v. Principi, 17 Vet. App. 478 (2004).  If the Board has not yet issued a final decision regarding an issue, the Court does not have authority to consider it.  See 38 U.S.C. § 7252 (providing that the Court may only review final decisions of the Board);  see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000) (holding that a Board remand does not constitute a final decision that may be appealed (citing 38 C.F.R. § 20.1100(b)(1999))); Tyrues v. Shinseki, 23 Vet. App. 166, 179 (2009) (en banc) ("[T]his Court's jurisdiction is controlled by whether the Board issued a 'final decision' - i.e., denied relief by either denying a claim or a specific theory in support of a claim and provided the claimant with notice of appellate rights.").

The Court's analysis does not end with a conclusion that the Board committed error; rather, the Court is required by statute to determine whether the appellant was prejudiced by the Board's error.  38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004).  The Court cannot consider evidence in the first instance.  See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that "appellate tribunals are not appropriate fora for initial fact finding"); see also 38 U.S.C. § 7261(c); see 38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 406 (2009) ("We believe that [38 U.S.C. § 7261(b)(2)], in stating that the Veterans Court must 'take due account of the rule of prejudicial error,' requires the Veterans Court to apply the same kind of 'harmless-error' rule that courts ordinarily apply in civil cases."); Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (holding that the Court's statutory duty to take due account of the rule of prejudicial error "permits the . . . Court to go outside of the facts as found by the Board to determine whether an error was prejudicial").

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