Robert M. Euzebio v. Denis McDonough, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
ROBERT M. EUZEBIO,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1072
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-2879, Judge Michael P. Allen,
Judge Amanda L. Meredith, Judge Joseph L. Falvey, Jr.
______________________
Decided: March 3, 2021
______________________
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick,
Providence, RI, argued for claimant-appellant. Also repre-
sented by CHRISTOPHER J. CLAY , BARBARA J. COOK, APRIL
D ONAHOWER; MEGAN BRITTNEY HALL , Disabled American
Veterans, Cold Spring, KY.
MARTIN F. H OCKEY , J R., Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by J EFFREY B. CLARK, ROBERT EDWARD K IRSCHMAN,
J R.; MARTIE A DELMAN , BRIAN D. G RIFFIN, Office of General
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EUZEBIO v. MCDONOUGH 2
Counsel, United States Department of Veterans Affairs,
Washington, DC.
HILLARY ANNE W ANDLER , Veterans Advocacy Clinic,
Alexander Blewett III School of Law, University of Mon-
tana, Missoula, MT, for amicus curiae National Law School
Veterans Clinic Consortium. Also represented by
MITCHELL L. WER BELL , V.
D ORIS J OHNSON HINES , Finnegan, Henderson,
Farabow, Garrett & Dunner, LLP, Washington, DC, for
amicus curiae National Veterans Legal Services Program.
Also represented by J OHN D. N ILES , BARTON F. STICHMAN,
National Veterans Legal Services Program, Washington,
DC.
______________________
Before O’MALLEY , WALLACH , and T ARANTO, Circuit Judges.
WALLACH , Circuit Judge.
Appellant, Robert M. Euzebio, appeals a decision of the
U.S. Court of Appeals for Veterans Claims (“Veterans
Court”). See Euzebio v. Wilkie, 31 Vet. App. 394 (2019).
The Veterans Court affirmed the Board of Veterans’ Ap-
peals’ (“the Board”) denial of Mr. Euzebio’s entitlement to
service connection for a thyroid condition “as due to expo-
sure to Agent Orange[.]” Id. at 397; see J.A. 22 (Judgment).
The Veterans Court held that, contrary to Mr. Euzebio’s
arguments, the National Academies of Sciences, Engineer-
ing & Medicine’s (“NAS”) report, Veterans and Agent Or-
ange: Update 2014 (10th Biennial Update 2016) (“NAS
Update 2014”), “was not constructively before the Board”
and Mr. Euzebio “ha[d] not demonstrated prejudicial error
in the Board’s decision to decline to obtain a medical nexus
opinion” to evaluate whether Mr. Euzebio’s thyroid condi-
tion is associated with his exposure to Agent Orange.
Euzebio, 31 Vet. App. at 397.
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EUZEBIO v. MCDONOUGH 3
We have jurisdiction pursuant to 38 U.S.C. § 7292(a)
and (c). Because the Veterans Court applied an erroneous
legal standard when it concluded the Board did not have
constructive possession of the NAS Update 2014, we vacate
and remand.
BACKGROUND
I. The NAS Agent Orange Reports
Agent Orange was “the most widely used herbicide”
during the Vietnam War. S. REP . N O. 100-439, at 64 (1988);
see id. at 64–65 (providing that the United States dispersed
“[a]pproximately [twenty] million gallons of herbicides . . .
in Vietnam, including approximately [eleven] million gal-
lons of Agent Orange” from 1962 to 1971). Agent Orange
consisted of an equal mixture by weight of two n-butyl es-
ters of phenoxy acid herbicides, 2,4-dichlorophenoxyacetic
acid, and 2,4,5-trichlorophenoxyacetic acid. Id. at 64. It
also contained a synthetic contaminant, 2,3,7,8-tetrachlo-
rodibenzo-para-dioxin, commonly called “dioxin.” Id. “The
United States used herbicides in Vietnam primarily for de-
foliation, crop destruction, and, on a smaller scale, clearing
vegetation around U.S. fire bases and other installations,
around landing zones, and along lines of communication.”
Id. In 1969, following a National Institutes of Health re-
port indicating that 2,4,5-trichlorophenoxyacetic acid
“could cause birth defects in mice, the Government re-
stricted the use of Agent Orange in Vietnam to areas re-
mote from population,” and from “1970 to 1971, the use of
herbicides was phased out[.]” Id.
A. Individual and Class Actions
In 1979, Vietnam veterans and their families filed
what would become a class action tort suit in the U.S. Dis-
trict Court for the Eastern District of New York against the
United States and “a major portion of the chemical indus-
try,” seeking damages for injuries to and the deaths of “tens
of thousands of Vietnam veterans who came in contact with
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EUZEBIO v. MCDONOUGH 4
herbicides”—in particular, Agent Orange. In re Agent Or-
ange Prod. Liab. Litig. (Agent Orange I), 597 F. Supp. 740,
746 (E.D.N.Y. 1984), aff’d sub nom. In re Agent Orange
Prod. Liab. Litig. MDL No. 381 (Agent Orange II), 818 F.2d
145 (2d Cir. 1987). The district court considered it “one of
the most complex litigations ever brought,” with “[s]ome
[six hundred] separate cases” and “an estimated fifteen
thousand named plaintiffs,” with “[h]undreds of motions”
filed and “[m]illions of pages of documents and hundreds of
depositions of witnesses” collected into evidence. Id. at
749–50. After five years of litigation, “plaintiffs, on behalf
of a class of Vietnam veterans and members of their fami-
lies, agreed with defendants to settle their claims against
the defendant chemical companies,” for “$180 million plus
interest” in damages. Id. at 748. On behalf of the class,
the district court held that the settlement was “reasonable
under the law,” Agent Orange I, 597 F. Supp. at 749, and
the Second Circuit affirmed, Agent Orange II, 818 F.2d at
174.
The Government did not “participate in the negotia-
tions that culminated in the settlement of th[at] class ac-
tion.” Agent Orange II, 818 F.2d at 160. Rather, the
plaintiffs’ claims against the United States were dismissed
as “barred by the Feres doctrine and the discretionary func-
tion exception to the Federal Tort Claims Act.” Id. at 152;
see Feres v. United States, 340 U.S. 135, 146 (1950) (holding
that “the Government is not liable under the Federal Tort
Claims Act for injuries to servicemen where the injuries
arise out of or are in the course of activity incident to ser-
vice”). Veterans also pursued their claims against the
United States through what is now called the U.S. Depart-
ment of Veterans Affairs (“VA”), seeking disability compen-
sation for diseases they asserted were caused by exposure
to Agent Orange. H.R. REP . N O. 98-592, at 6 (1984) (provid-
ing that “as of October 1, 1983, Veterans had filed 18,518
disability claims with the VA for disorders they attribute
to Agent Orange exposure”; of those, “9,170 . . . had a
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EUZEBIO v. MCDONOUGH 5
diagnosed disability”; and, of those, “7,709 were denied”
disability compensation for lack of service connection (cap-
italization normalized)). The VA took the position that
only chloracne, a skin disorder, was “causally related to
Agent Orange exposure” and largely denied the veterans’
Agent Orange claims. Id. (capitalization normalized); see
id. (noting that of the 18,518 disability claims for Agent Or-
ange exposure, the “1,461 . . . [that] were granted service
connection were for skin conditions” (capitalization nor-
malized)).
B. The Dioxin Act
In 1984, in response to “concern,” generally, “about the
decision[-]making process within the [VA] with respect to
Agent Orange compensation,” and, specifically, to the ab-
sence of “standards or guidelines available by which the
[VA] justifie[d] its position that no illness, except chlor-
acne, result[ed] from Agent Orange exposure,” H.R. REP .
N O. 98-592, at 21 (capitalization normalized), Congress en-
acted the Veterans’ Dioxin and Radiation Exposure Com-
pensation Standards Act (“Dioxin Act”), Pub. L. No. 98–
542, 98 Stat. 2725 (1984). Given the “scientific and medical
uncertainty regarding [the] long-term adverse health ef-
fects” resulting from dioxin exposure, Congress had previ-
ously “authoriz[ed] priority medical care at [VA] facilities
for any disability of a veteran who may have been . . . ex-
posed [to dioxin],” even where “there [wa]s insufficient
medical evidence linking such disability with such expo-
sure,” “unless the disability [wa]s found to have resulted
from a cause other than the exposure.” Dioxin Act § 2(2),
(3) (citing An Act to Make Technical Corrections in the De-
fense Officer Personnel Management Act, Pub. L. No. 97–
22 § 102, 95 Stat. 124 (1981)). However, the VA had yet to
“promulgate[] permanent regulations setting forth guide-
lines, standards, and criteria for the adjudication of claims
for [VA] disability compensation based on exposure to herb-
icides containing dioxin[.]” Id. § 2(11).
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With the Dioxin Act, Congress sought “to ensure that
[VA] disability compensation [wa]s provided to veterans
who were exposed” to Agent Orange, for disabilities that
were service-connected “based on sound scientific and med-
ical evidence[.]” Id. § 3. The Dioxin Act required the VA to
“prescribe regulations . . . for the resolution of [Agent Or-
ange] claims” based on “exposure during service” in Vi-
etnam, id. § 5(a)(1)(A), including “guidelines governing the
evaluation of the findings of scientific studies relating to
the possible increased risk of adverse health effects of ex-
posure to herbicides containing dioxin,” id. § 5(b)(1)(A).
The Dioxin Act further required the VA, “in the evaluation
of [such] studies,” id., to “receiv[e] the advice of” a panel of
individuals drawn from “the Scientific Council of the Vet-
erans’ Advisory Committee on Environmental Hazards”
(“the Dioxin Council”) as created within the VA by the Di-
oxin Act, id. § 5(b)(1)(B). The Dioxin Act directed the VA
to create a presumptive service connection for any disease
which had, “based on sound medical and scientific evi-
dence,” id. § 5(b)(2)(A), “a connection to exposure to a[n]
herbicide containing dioxin,” id. §5(b)(2)(B); see LeFevre v.
Sec’y, Dep’t of Veterans Aff’rs., 66 F.3d 1191, 1193 (Fed. Cir.
1995) (explaining that the Dioxin Act “require[d] the [VA]
to create or reject a presumption-of-service connection for
particular diseases, based upon the statistical probability
of such connection, as reflected in scientific studies”).
In April 1985, the VA published a proposed rule to im-
plement the Dioxin Act. Adjudication of Claims Based on
Exposure to Dioxin or Ionizing Radiation (“Proposed
Rule”), 50 Fed. Reg. 15,848 (Apr. 22, 1985). The Proposed
Rule provided “a formal process for the [VA’s] evaluations
of scientific and medical studies relating to the possible ad-
verse health effects of dioxin[.]” Id. at 15,848. In August
1985, the VA promulgated a final regulation adopting the
Proposed Rule. Adjudication of Claims Based on Exposure
to Dioxin or Ionizing Radiation (“Dioxin Regulation”), 50
Fed. Reg. 34,452, 34,452–53 (Aug. 26, 1985) (formerly
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EUZEBIO v. MCDONOUGH 7
codified at 38 C.F.R. § 1.17). It concluded that “[s]ound sci-
entific and medical evidence d[id] not establish a cause and
effect relationship between dioxin exposure” and any dis-
ease except chloracne. Id. at 34,458. It did, however, pro-
vide that “[f]rom time to time, the [VA] shall publish
evaluations of scientific or medical studies relating to the
adverse health effects of exposure to [dioxin],” id.
at 34,458, and that “[i]n the adjudication of individual
claims, due consideration shall be given to th[ose] evalua-
tions of study findings published,” id. at 34,459. In subse-
quent years, the Dioxin Council “continued to evaluate
scientific studies, reviewing over seventy studies, reports,
and articles on dioxin.” Nehmer v. U.S. Veterans’ Admin.
(Nehmer II), 712 F. Supp. 1404, 1408 (N.D. Cal. 1989). The
Dioxin Council did not, however, “recommend[] that the
[VA] amend the regulation to grant service connection to
any other disease.” Id.
In 1987, Vietnam veterans brought a class action suit
against the VA and Dioxin Council in the U.S. District
Court for the Northern District of California, alleging that
the agency “improperly implemented” the Dioxin Act
through promulgation of the Dioxin Regulation. Nehmer v.
U.S. Veterans’ Admin. (Nehmer I), 118 F.R.D. 113, 115
(N.D. Cal. 1987); see id. (explaining that plaintiffs alleged
that “defendants failed to adequately review the pertinent
scientific studies of dioxin-related diseases, failed to im-
pose proper guidelines for the consideration of relevant ev-
idence, and failed to apply the correct legal standard to
determine which diseases are compensable” and that “the
[Dioxin] [R]egulation contradict[ed] the weight of scientific
evidence and is therefore arbitrary and capricious”). While
the Dioxin Regulation did “not preclude a veteran from
proving in an individual case that a claimed disease was
caused by Agent Orange exposure,” “as of December 1987,
over 31,000 veterans ha[d] been denied compensation un-
der th[e] [Dioxin] [R]egulation.” Nehmer II, 712 F. Supp.
at 1408 (citing Nehmer I, 118 F.R.D. at 120). The district
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EUZEBIO v. MCDONOUGH 8
court held “void . . . the portion of the Dioxin [R]egulation
that denie[d] service connection for all other diseases” and
“all benefit decisions made under [that portion of the regu-
lation], and remand[ed] to the VA for further proceed-
ings[.]” Id. at 1409. The district court explained that the
VA’s “adoption of [a] cause and effect test and failure to
give the benefit of the doubt to veterans violated the Dioxin
Act,” “sharply tipped the scales against the claims of veter-
ans,” and thus, “[g]iven the congressional finding of sub-
stantial scientific uncertainty regarding the effects of
Agent Orange,” were “not harmless” errors, but likely “ac-
count[ed] for the conclusion that the [VA] reached in the
Dioxin [R]egulation.” Id.
In May 1989, the VA announced that it would “abide
by the ruling” in Nehmer II, S. REP . N O. 101-82, at 42
(1989), and amended the Dioxin Regulation accordingly,
Evaluation of Studies Relating to Health Effects of Dioxin
and Radiation Exposure, 54 Fed. Reg. 40,388, 40,388
(Oct. 2, 1989). The VA amended the Dioxin Regulation to
provide for a presumptive service connection where the Di-
oxin Council found “a significant statistical association . . .
between any disease and exposure to a[n] herbicide con-
taining dioxin”—that is, “when the relative weights of valid
positive and negative studies permit the conclusion that it
is at least as likely as not that the purported relationship
between a particular type of exposure and a specific ad-
verse health effect exists.” Id. at 40,391. It did not pre-
serve the provision for consideration of the Dioxin Council’s
evaluation of scientific and medical studies in the adjudi-
cation of individual claims. See generally id. at 40,391–92.
C. The Agent Orange Act
In 1991, Congress enacted the Agent Orange Act of
1991 (“Agent Orange Act”), Pub. L. No. 102–4, 105 Stat. 11
(1991) (codified in part at 38 U.S.C. § 1116), in order to
“provide for the Secretary of Veterans Affairs [(‘the Secre-
tary’)] to obtain independent scientific review of the
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EUZEBIO v. MCDONOUGH 9
available scientific evidence regarding associations be-
tween diseases and exposure to dioxin and other chemical
compounds in herbicides[.]” Agent Orange Act, 105 Stat.
at 11. While praising the VA for “proceeding to carry out a
rereview of the scientific evidence as part of [its] effort to
comply with the mandate of” the Dioxin Act and Nehmer
II, there was nonetheless “a strong sense that what [wa]s
needed at th[at] point [wa]s a review, by an entity com-
pletely independent of [the] VA, that will yield unified com-
pilation and analysis of the results from the various
scientific studies.” S. REP . N O. 101-82 at 42 (1989); see id.
at 41 (noting that “[g]eneral acceptance of the[] [Dioxin
Council’s] reviews has been impaired because of a concern
that [the] VA may have exerted some influence on their
content,” and “recogniz[ing] that the perception of a possi-
bility of some taint d[id] exist and [could ]not be dismissed
out of hand”).
To this end, in the Agent Orange Act, Congress di-
rected the VA to “seek to enter into an agreement with [the
NAS],” Agent Orange Act § 3(b), “an independent nonprofit
scientific organization with appropriate expertise which is
not part of the . . . Government,” id. § 3(a). Under this
agreement, the NAS was to “review and summarize the sci-
entific evidence, and assess the strength thereof, concern-
ing the association between exposure to,” inter alia, Agent
Orange “and each disease suspected to be associated with
such exposure,” id. § 3(c), and transmit to the VA and Con-
gress “periodic written reports regarding the [NAS’s] activ-
ities under the agreement” (“NAS Reports”), with a report
“submitted at least once every two years” through October
1, 2014, id. § 3(g), (i); see Veterans Education and Benefits
Expansion Act of 2001 (“Veterans Education Act”), Pub. L.
No. 107–103, § 201, 115 Stat. 976 (2001).
In generating the NAS Reports, the “NAS conduct[s] a
comprehensive search of all medical and scientific studies
on health effects of herbicides used in the Vietnam War”—
numbering in the thousands for each biannual NAS
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Report. Determinations Concerning Illnesses Discussed in
National Academy of Sciences Report: Veterans and Agent
Orange: Update 2012 (“NAS Update 2012 Determination”),
79 Fed. Reg. 20,308, 20,309 (Apr. 11, 2014). The NAS then
categorizes “each health outcome it reviewed . . . based on
the strength of the evidence of association between herbi-
cide exposure and the health outcome,” ranging from “Suf-
ficient Evidence of Association” to “Limited or Suggestive
Evidence of No Association.” Id.
Until September 30, 2015, the Secretary was required,
within sixty days of receiving an NAS Report, to “deter-
mine whether a presumption of service connection is war-
ranted for each disease covered by the [NAS] [R]eport.” 38
U.S.C. § 1116(c)(1)(A); see Veterans Education Act § 201
(codified at 38 U.S.C. § 1116(e)). “If the Secretary deter-
mine[d] that such a presumption [wa]s warranted,” the
Secretary was required, within sixty days of making that
determination, to “issue proposed regulations setting forth
the Secretary’s determination,” 38 U.S.C. § 1116(c)(1)(A),
and, within ninety days of issuing the proposed regulation,
to issue a final regulation, id. § 1116(c)(2); see 38 C.F.R.
§ 3.309 (listing “[d]isease[s] subject to presumptive service
connection”). Similarly, the Secretary was required to
“publish in the Federal Register . . . notice” when “the Sec-
retary determine[d] that a presumption of service connec-
tion [wa]s not warranted” for a given disease. 38 U.S.C.
§ 1116(c)(1)(B).1
1 In 1993, the VA promulgated regulations imple-
menting the Agent Orange Act. See Disease Associated
With Exposure to Certain Herbicide Agents, 58 Fed. Reg.
50,528, 50,528 (Sept. 28, 1993). In 2010, the VA
“amend[ed] its regulation[s] concerning evaluation of stud-
ies relating to the health effects of exposure to herbicides
containing dioxin . . . to remove the obsolete references to
herbicides containing dioxin” to “reflect[] changes made by
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EUZEBIO v. MCDONOUGH 11
In the absence of a presumptive service connection, a
veteran may still “prove actual direct causation” to estab-
lish a service-connected disability. Combee v. Brown, 34
F.3d 1039, 1044 (Fed. Cir. 1994). While the Agent Orange
Act and associated regulations do not require the VA to
consider NAS Reports in the adjudication of individual
claims, see generally 38 U.S.C. § 1116, because “[t]he NAS
[Reports] are published in the Federal Register by [the]
VA,” the “VA is on notice as to the information contained
therein,” J.A. 76; see J.A. 71–76 (excerpts from BOARD OF
VETERANS ’ APPEALS , U.S. D EP ’T OF VETERANS AFFAIRS , T HE
P URPLEBOOK, Version 1.0.2 (2018) (“The Purplebook”)); see
also Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 385
(1947) (“Congress has provided that the appearance of
rules and regulations in the Federal Register gives legal
notice of their contents.”).
Further, the Board’s internal guidance advises that,
even if the VA has not “conceded a relationship” by estab-
lishing a presumptive service connection, “suggestive evi-
dence of an association” between a medical condition and
“exposure to herbicide agents” as discussed in NAS Reports
may “be sufficient to establish an ‘indication’ that the cur-
rent disability ‘may be related’ to herbicide agent exposure
during service, as contemplated by 38 U.S.C.
§ 5103A(d)(2)(b)” given “that there is a ‘low threshold’ when
assessing the need for a medical examination.” J.A. 76
(quoting McLendon v. Nicholson, 20 Vet. App. 79, 83
(2006)); see 38 U.S.C. § 5103A(d)(1) (directing the VA to
the Agent Orange Act[.]” Removal of Obsolete References
to Herbicides Containing Dioxin (“Removal of Obsolete Ref-
erences”), 75 Fed. Reg. 17,857, 17,857 (Apr. 8, 2010); see id.
at 17,858 (explaining that prior regulations under the Di-
oxin Act were “obsolete with regard to matters involving
herbicide exposure, which are now governed by the com-
prehensive statutory scheme of the Agent Orange Act”).
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EUZEBIO v. MCDONOUGH 12
provide a veteran with a “medical examination” or “opin-
ion” “when such an examination or opinion is necessary to
make a decision on the [veteran’s disability] claim”). For
example, by its internal guidance, the Board should “not
deny service connection for hypertension, bladder cancer,
or hypothyroidism without first obtaining a VA medical
opinion” on the question of service connection, J.A. 75, even
though “the VA has not conceded” a presumptive service
connection, J.A. 76; see J.A. 76 (“On a practical basis, for
the above reasons, [the VA’s Office of General Counsel’s]
[Veterans Court] Litigation Group will not defend service
connection for hypertension cases when a VA nexus opin-
ion has not been obtained[.]”).
II. Factual Background and Procedural History
Mr. Euzebio served on active duty in the U.S. Navy
Seabees from February 1966 to October 1969, including
two tours of duty in Vietnam. J.A. 31 (DD 214), 40 (Claim),
51 (Supplemental Claim). He was stationed first in Da
Nang and then in Hoi An. J.A. 51, 57. At both sites, he
was exposed to Agent Orange. J.A. 57; see 38 U.S.C.
§ 1116(f) (“For purposes of establishing service connection
for a disability or death resulting from exposure to a[n]
herbicide agent, . . . a veteran who, during active military,
naval, or air service, served in the Republic of Vietnam dur-
ing the period beginning on January 9, 1962, and ending
on May 7, 1975, shall be presumed to have been exposed
during such service to an herbicide agent containing dioxin
or 2,4-dichlorophenoxyacetic acid[.]”); 38 C.F.R.
§§ 3.307(a)(6)(iii) (similar), 3.313(a) (providing that
“[s]ervice in Vietnam includes service in the waters off-
shore, or service in other locations if the conditions of ser-
vice involved duty or visitation in Vietnam”).
In 2009, Mr. Euzebio began experiencing problems
swallowing. J.A. 58. In 2011, medical examinations and
testing by private physicians indicated that he had benign
nodules on his thyroid. J.A. 32–39 (Radiology and
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EUZEBIO v. MCDONOUGH 13
Pathology Reports), 57–59 (Board Transcript). Later that
year, Mr. Euzebio filed a claim requesting service-con-
nected disability compensation for “thyroid nodules be-
lieved [to be] caused by [his] exposure to Agent Orange
while serving in Vietnam.” J.A. 40 (Claim).2 The VA de-
nied his claim, finding that “[t]he available scientific and
medical evidence does not support the conclusion that [Mr.
Euzebio’s thyroid] condition is associated with herbicide
exposure.” J.A. 47; see J.A. 43–49 (September 2011 VA Let-
ter). In April 2015, after filing a supplemental claim with
the VA, Mr. Euzebio appealed the VA’s decision to the
Board. J.A. 50–51 (Supplemental Claim), 52–53 (Notice of
Disagreement), 54 (Appeal to Board).
In March 2016, while Mr. Euzebio’s appeal was pend-
ing before the Board, the NAS Committee to Review the
Health Effects in Vietnam Veterans of Exposure to Herbi-
cides published the NAS Update 2014. J.A. 70, 76. At that
time, while the NAS was still required to “transmit to the
[VA] and [Congress]” an NAS Report, Agent Orange Act
§ 3(g); see Veterans Education Act § 201, the VA was no
longer required to use that NAS Report to determine if any
new presumptive service connections were warranted or to
publish such determinations for notice and comment in the
Federal Register, 38 U.S.C. § 1116(e). While the VA has
not, to date, published the NAS Update 2014 in the Federal
Register, it has published the report on its website. See
U.S. D EP ’T OF VETERANS AFFAIRS , Public Health,
https://www.publichealth.va.gov/exposures/agentorange/
2 Mr. Euzebio also claimed service connection based
on his exposure to contaminated drinking water at Camp
Lejeune. J.A. 60; see 38 C.F.R. § 3.309(f) (listing
“[d]isease[s] [presumptively] associated with exposure to
contaminants in the water supply at Camp Lejeune”). He
has since abandoned that claim. See Euzebio, 31 Vet. App.
at 407; see generally Appellant’s Br.
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EUZEBIO v. MCDONOUGH 14
publications/health-and-medicine-division.asp. The NAS
Update 2014 provided that in one study considered by the
NAS Committee, “thyroid conditions overall showed an in-
dication of increased risk with herbicide exposure.” J.A. 78
(alterations omitted) (quoting NAS Update 2014 at 885).
The NAS Committee also noted that “consistent observa-
tions of exposures to herbicide agents” indicated that they
were “related to perturbations of thyroid function” and that
“[e]ndocrine effects have been observed in conjunction with
exposure to herbicide agents in both humans and animals.”
J.A. 78 (alterations omitted) (quoting NAS Update 2014 at
897–98).
In July 2017, the Board denied Mr. Euzebio’s claim.
J.A. 60–61; see J.A. 60–69 (Board Decision). The Board
concluded that Mr. Euzebio “ha[d] not . . . met” “[t]he crite-
ria for service connection for a thyroid disability,” finding
that Mr. Euzebio’s “benign thyroid nodules ha[d] not been
shown to be related to his in-service environmental expo-
sures.” J.A. 61. The Board noted that “[t]he Agent Orange
Act . . . requires that when the Secretary determines that
a presumption of service connection based on herbicide ex-
posure is not warranted for [certain] conditions, he must,”
inter alia, consider “reports of the [NAS]” when making the
decision. J.A. 66 (citing 38 U.S.C. § 1116); see 38 U.S.C.
§ 1116(b)(2) (“In making determinations for the purpose of”
creating presumptive service-connection for certain dis-
eases associated with Agent Orange exposure, the Secre-
tary is required to “take into account . . . reports received
by the Secretary from the [NAS] under . . . the Agent Or-
ange Act,” and “all other sound medical and scientific in-
formation and analyses available to the Secretary[.]”).
The Board then concluded that, while Mr. Euzebio
“ha[d] not been afforded a VA [medical] examination,” the
VA was not required to provide him with one because
Mr. Euzebio’s “conclusory generalized statements” that
“his thyroid condition is related to his in-service exposures
to Agent Orange” “lack probative value and are insufficient
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EUZEBIO v. MCDONOUGH 15
to meet even the low burden triggering [the] VA’s duty to
assist in providing an examination and medical opinion.”
J.A. 63–64 (citing McLendon, 20 Vet. App. at 83); see 38
U.S.C. § 5103A(d)(2)(B) (providing that a medical opinion
is necessary when “the evidence of record before the Secre-
tary, taking into consideration all information and lay or
medical evidence (including statements of the claim-
ant) . . . indicates that the disability or symptoms may be
associated with the claimant’s active military, naval, or air
service”).3 The Board explained that “[s]ervice connection”
for Mr. Euzebio’s thyroid disorder “[wa]s not warranted”
either “on a presumptive basis,” because his thyroid disor-
der was not among the conditions listed by the Secretary
for presumptive service-connection under the Agent Or-
ange Act, J.A. 67 (citing 38 C.F.R. § 3.309(e)); see 38 C.F.R.
§ 3.309(e) (listing “[d]isease[s] [presumptively] associated
with exposure to certain herbicide agents”), or on “a direct
basis” because “[t]he only evidence submitted etiologically
linking [Mr. Euzebio’s] benign thyroid nodules to his in-
service exposures is [his] own assertion[s],” J.A. 68; see
J.A. 68 (concluding that Mr. Euzebio’s “general conclusory
3 McLendon provides that “the Secretary must pro-
vide a VA medical examination when there is,” inter alia,
“an indication that the disability or persistent or recurrent
symptoms of a disability may be associated with the vet-
eran’s service or with another service-connected disability,
but . . . insufficient competent medical evidence on file for
the Secretary to make a decision on the claim.” 20 Vet.
App. at 81 (citing, inter alia, 38 U.S.C. § 5103A(d)(2)); see
Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010)
(noting that 38 U.S.C. § 5103A(d)(1), (2) “provide[s] th[e]
guidelines for determining whether a medical examination
or opinion is necessary for the Secretary to make a decision
in a claim” (internal quotation marks omitted)).
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EUZEBIO v. MCDONOUGH 16
assertions as to the cause of his benign thyroid nodules,
while likely genuine, are not probative in this context”).
Mr. Euzebio appealed the Board’s decision to the Vet-
erans Court. Euzebio, 31 Vet. App. at 397; see J.A. 70 (ex-
cerpt of Veterans Court Brief). Mr. Euzebio argued that
“the Board erred in determining that the Secretary’s duty
to assist did not require [the] VA to afford him a medical
examination,” because “the Board failed to consider and
discuss ‘all evidence and material of record and applicable
provisions of law and regulation,’ including the [NAS Up-
date 2014].” Euzebio, 31 Vet. App. at 398 (quoting 38
U.S.C. § 7104(a)). He argued that “the [NAS Update 2014]
was constructively before the Board because the Secretary
knew of the report’s content,” and further “that, had the
Board considered the [NAS Update 2014], it would have
found . . . McLendon . . . satisfied.” Id. Before the Veter-
ans Court, it was undisputed that the NAS Update 2014
“was created for [the] VA pursuant to a congressional man-
date” and “was published in 2016, prior to the Board deci-
sion on appeal,” id. at 399, and, further, that the “VA
generally knew of the existence of the [NAS Update 2014]
at the time of the decision on appeal,” id. at 402; see J.A. 76
(The Purplebook) (discussing, generally, the use of NAS
Updates in adjudicating Agent Orange claims, and, specif-
ically, the NAS Update 2014 in adjudicating certain Agent
Orange claims without presumptive service connection).
A divided panel of the Veterans Court affirmed the
Board’s decision. Euzebio, 31 Vet. App. at 397. The major-
ity “conclude[d] that the [NAS Update 2014] was not con-
structively . . . before the Board.” Id. at 402. The majority
explained that the Veterans Court “case[ ]law is clear, that
even if [the] VA is aware of a report and the report contains
general information about the type of disability on appeal,
that is insufficient to trigger the constructive possession
doctrine[.]” Id. Rather, “there must also be a direct rela-
tionship to the claim on appeal.” Id. (emphasis omitted)
(citing Monzingo v. Shinseki, 26 Vet. App. 97, 102 (2012)).
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EUZEBIO v. MCDONOUGH 17
The majority stated that “[t]o hold otherwise would not
only contravene [the Veterans] Court’s case[ ]law but
would undermine the [Veterans] Court’s jurisdictional ob-
ligation to base its review on the record of proceedings be-
fore the Board[.]” Id.; see 38 U.S.C. § 7252(b) (“Review in
the Court shall be on the record of proceedings before the
Secretary and the Board.”). The majority then determined
that the Board correctly concluded that the VA had satis-
fied its duty to assist under McLendon, see Euzebio, 31 Vet.
App. at 407 (“[Mr. Euzebio] has not shown that the record
contains any factual basis for his claim apart from his gen-
eral lay statements, which, as noted above, are insufficient
to satisfy McLendon’s low threshold.”), and, because Mr.
Euzebio “ha[d] not demonstrated prejudicial error with re-
gard to that determination,” the majority affirmed, id.
One judge dissented. Euzebio, 31 Vet. App. at 407–12
(Allen, J., dissenting). He understood the majority’s ra-
tionale to be a constructive ignorance rather than a con-
structive possession doctrine, as the majority’s opinion
could not “possibly be the outcome of a rational system of
adjudication, especially one designed to be pro-veteran and
nonadversarial.” Id. at 409. He explained that, while
“[t]he majority appear[ed] to suggest that there is quite a
rigorous test to show [a direct] relationship”—such that
“for all practical purposes, only evidence that directly
names the veteran whose case is at issue would qualify”—
the majority was incorrect. Id. He emphasized “the[]
unique nature” of the NAS Reports and the “important role
congressional attention to Agent Orange exposure has” had
in the adjudication of Agent Orange claims. Id. at 410; see
id. at 410 (“These are not the type of documents that are
located somewhere in the bowels of [the] VA, tucked away
in the desk of some bureaucrat never to be read.”). Because
the VA had actual notice of the NAS Update 2014, and be-
cause the NAS Update 2014 has a direct relationship to “all
claims based on Agent Orange exposure” by “congressional
directive,” he would have found the NAS Update 2014 to be
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EUZEBIO v. MCDONOUGH 18
constructively before the Board in Mr. Euzebio’s case. Id.
at 410–11.
D ISCUSSION
I. Standard of Review and Legal Standard
Our jurisdiction to review decisions of the Veterans
Court is defined by statute. Gazelle v. Shulkin, 868 F.3d
1006, 1009 (Fed. Cir. 2017). We may “review and decide
any challenge to the validity of any statute or regulation or
any interpretation thereof” and “interpret constitutional
and statutory provisions, to the extent presented and nec-
essary to a decision.” 38 U.S.C. § 7292(c). “[W]e have au-
thority to decide whether the Veterans Court applied the
correct legal standard.” Sneed v. Shinseki, 737 F.3d 719,
724 (Fed. Cir. 2013) (internal quotation marks, citation,
and footnote omitted). We review the Veterans Court’s le-
gal determinations de novo. Gazelle, 868 F.3d at 1009.
The Veterans Court is “an Article I tribunal,” created
under the Veterans’ Judicial Review Act of 1988 (“Veter-
ans’ Judicial Review Act”), Pub. L. No. 100–687, 102 Stat.
4105 (2000) (codified as amended at 38 U.S.C. §§ 7251–
7298), “to review Board decisions adverse to veterans.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 432
(2011). As an appellate tribunal, the Veterans Court re-
views Board determinations “on the record of proceedings
before the Secretary and the Board.” 38 U.S.C. § 7252(b).4
4 The Board’s “[d]ecisions,” in turn, must “be based
on the entire record in the proceeding and upon considera-
tion of all evidence and material of record,” 38 U.S.C.
§ 7104(a), and, in adjudicating claims for service-connected
disability, the Secretary must consider “all information and
lay and medical evidence of record,” id. § 5107(b); see Fa-
gan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (“We
have repeatedly emphasized that all pertinent evidence
must be considered.”); 38 C.F.R. § 3.303 (“Determinations
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EUZEBIO v. MCDONOUGH 19
“[T]he Veterans Court’s scope of review, [38 U.S.C.] § 7261,
is similar to that of an Article III court reviewing agency
action under the Administrative Procedure Act, 5 U.S.C.
§ 706.” Henderson, 562 U.S. at 432 n.2. The Veterans
Court “decide[s] all relevant questions of law,” 38 U.S.C.
§ 7261(a)(1), and “hold[s] unlawful and set[s] aside any
[Board or VA] decision[]” that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law,” id. § 7261(a)(3)(A). Further, “in the case of a finding
of material fact adverse to the claimant,” the Veterans
Court may “hold unlawful and set aside or reverse such
finding if the finding is clearly erroneous.” Id. § 7261(a)(4).
Under such circumstances, the Veterans Court has the
“power to . . . reverse a decision of the Board or to remand
the matter, as appropriate[.]” Id. § 7252(a).
In keeping with its appellate review of Board and VA
determinations, the Veterans Court may, under certain cir-
cumstances, consider “documents that were not literally
before an examiner to be constructively part of a claimant’s
record.” Lang v. Wilkie, 971 F.3d 1348, 1352–53 (Fed. Cir.
2020) (emphasis omitted) (citing Bell v. Derwinski, 2 Vet.
App. 611, 613 (1992)); cf. Home Prod. Int’l, Inc. v. United
States, 633 F.3d 1369, 1379 (Fed. Cir. 2011) (explaining
that the rule that appellate review of agency proceedings
must be on the administrative record “is not without excep-
tions” (citing, inter alia, Fla. Power & Light Co. v. Lo-
rion, 470 U.S. 729, 743 (1985))). Specifically, where “a
dispute arises” before the Veterans Court “as to the content
of the record” before the Secretary and Board, and the evi-
dence at issue is “within the Secretary’s control” and “could
reasonably be expected to be a part of the record ‘before the
Secretary and the Board,’ such documents are,” construc-
tively, part of the record. Bell, 2 Vet. App. at 613 (quoting
as to service connection will be based on review of the en-
tire evidence of record[.]”).
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EUZEBIO v. MCDONOUGH 20
38 U.S.C. § 7252(b)); see Lang, 971 F.3d at 1353–55 (dis-
cussing the “well-established Bell rule”); 38 C.F.R.
§ 20.1403(b) (codifying the Bell rule for “Board decisions on
legacy appeals” for claims that pre-date Bell).5 The Veter-
ans Court has found evidence “within the Secretary’s con-
trol” when “the Secretary ha[s] constructive, if not actual,
knowledge” of that evidence. Bell, 2 Vet. App. at 613; see
Lang, 971 F.3d at 1354 (providing that the VA has con-
structive knowledge of evidence that was “generated by the
VA or was submitted to the VA”).6 Evidence that “could
reasonably be expected to be part of the record” is evidence
that “pre-date[s] the [Board] opinion” and is relevant. Bell,
2 Vet. App. at 612–13; see Lang, 971 F.3d at 1353–55 (“[I]n
the context of records created prior to a decision, all rele-
vant and reasonably connected VA-generated documents
are part of the record and, therefore, constructively known
by the VA adjudicator.”).
II. The Veterans Court Relied on an Erroneous Legal
Standard When It Required a “Direct Relationship” for
Constructive Possession of the NAS Update 2014
The Veterans Court “conclude[d] that the [NAS Update
2014] was not constructively” before the Board, because
“even if [the] VA [wa]s aware of a report and the report
5 “After Bell, the Secretary issued Office of General
Counsel Opinion 12-95, which officially adopted the Bell
rule for all [medical] records in the VA’s possession.” Lang,
971 F.3d at 1353 (citing Vet. Aff. Op. Gen. Couns. Prec. 12-
95, 1995 WL 17875505, at *2 (May 10, 1995)).
6 While actual notice is not necessary, Lang, 971
F.3d at 1355, it is sufficient, Bell, 2 Vet. App. at 612 (“[T]he
[Veterans] Court cannot accept the Board being ‘unaware’
of certain evidence, especially when such evidence is in pos-
session of the VA, and the Board is on notice as to its pos-
sible existence and relevance.” (quoting Murincsak v.
Derwinski, 2 Vet. App. 363, 372–73 (1992))).
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EUZEBIO v. MCDONOUGH 21
contain[ed] general information about the type of disability
on appeal, that [wa]s insufficient to trigger the constructive
possession doctrine.” Euzebio, 31 Vet. App. at 402 (empha-
sis and footnote omitted). The Veterans Court explained
that “there must also be a direct relationship to the claim
on appeal” and there was no direct relationship between
the NAS Update 2014 and Mr. Euzebio’s claim. Id.
Mr. Euzebio argues that the Veterans Court “relied on an
erroneous legal standard when it refused to consider the
[NAS Update 2014] because it lacked a ‘direct relationship’
to Mr. Euzebio’s claim.” Appellant’s Br. 8. We agree with
Mr. Euzebio.
Mr. Euzebio is correct that the Veterans Court relied
on an erroneous legal standard when it required Mr.
Euzebio establish a “direct relationship” between the NAS
Update 2014 and his claim. The constructive possession
doctrine provides that evidence that is “within the Secre-
tary’s control” and “could reasonably be expected to be a
part of the record ‘before the Secretary and the Board,’” is
constructively part of the administrative record. Bell, 2
Vet. App. at 613 (quoting 38 U.S.C. § 7252(b)); see Lang,
971 F.3d at 1353–55; 38 C.F.R. § 20.1403(b). However,
first in Monzingo, and again, here in Euzebio, the Veterans
Court has narrowed the constructive possession doctrine
such that for evidence to be “reasonably . . . expected to be
part of the record,” it must have a “specific,” “direct rela-
tionship” to the veteran’s claim—i.e., the document must
have been created specifically for the veteran. Monzingo,
26 Vet. App. at 102–03;7 see Euzebio, 31 Vet. App. at 401
7 Monzingo was appealed to this court. Monzingo v.
Gibson, 566 F. App’x 972, 973 (Fed. Cir. 2014). We did not,
however, reach the issue of constructive possession, as we
concluded that Mr. Monzingo “in effect . . . disagree[d] with
the Veterans Court’s application of the law to the facts of
his case” and “dismiss[ed] for lack of jurisdiction.” Id.
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EUZEBIO v. MCDONOUGH 22
(summarizing the reasonable expectation element of the
constructive possession doctrine as requiring a veteran to
“show that there is a direct relationship between the docu-
ment and his or her claim” (emphasis omitted) (citing
Monzingo, 26 Vet. App. at 101–03)). This was error.
Requiring that evidence bear a “direct relationship” or
be “specific to” the veteran for constructive possession is
without basis in relevant statute or regulation. Rather,
Monzingo derived its “direct relationship” requirement
from a prior Veterans Court case, Goodwin v. West, 11 Vet.
App. 494, 495–96 (1998) (per curiam). Monzingo, 26 Vet.
App. at 102–03. Goodwin, however, only applied Bell to
conclude that certain documents generated by the VA for
“claims for VA benefits for an individual other than the ap-
pellant and which were not submitted to [the] VA with re-
gard to the appellant’s claim, could not ‘reasonably be
expected to be a part of the record before the Secretary and
the Board.’” Goodwin, 11 Vet. App. at 496 (quoting Bell, 2
Vet. App. at 613) (some internal quotation marks omitted).
This effort to formulate governing legal principles, unteth-
ered from statutory and regulatory standards, has led to
absurd results. See United States v. Turkette, 452 U.S. 576,
580 (1981) (“[A]bsurd results are to be avoided[.]”). The
“direct relationship” standard may, for example, fail to en-
compass a report commissioned by Congress specifically to
assist the VA in understanding and evaluating the type of
claim at issue, see Agent Orange Act, 105 Stat. at 11 (en-
acted to “provide for the Secretary . . . to obtain independ-
ent scientific review of the available scientific evidence
Here, the Government does not challenge our jurisdiction.
Appellee’s Br. 13–14. Indeed, as noted above, we have ju-
risdiction to consider “whether the Veterans Court applied
the correct legal standard.” Sneed, 737 F.3d at 724 (inter-
nal quotation marks, citation, and footnote omitted); see 38
U.S.C. § 7292(c).
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EUZEBIO v. MCDONOUGH 23
regarding” Agent Orange), even where the Board had ac-
tual knowledge of the report and the report has been part
of the record in similar claims, see 38 U.S.C. § 5103A(a)(1)
(providing that the Secretary must “make reasonable ef-
forts to assist a claimant in obtaining evidence necessary
to substantiate the claimant’s claim”); H.R. REP . N O. 100-
963, at 13 (“Congress expects [the] VA to fully and sympa-
thetically develop the veteran’s claim to its optimum before
deciding it on the merits.”).
Here, it is undisputed that the NAS Update 2014 “was
published in 2016, prior to the Board decision on appeal.”
Euzebio, 31 Vet. App. at 399. It is undisputed that the “VA
generally,” and the Board specifically, “knew of the exist-
ence of the [NAS Update 2014] at the time of the decision
on appeal.” Id. at 402; see J.A. 76 (The Purplebook) (dis-
cussing the use of NAS Reports, generally, and the NAS
Update 2014 specifically, in adjudicating Agent Orange
claims). The importance and relevance of the NAS Reports
to Agent Orange claims are well-known and well-estab-
lished—they are the result of decades of veteran engage-
ment, see, e.g., Nehmer I, 118 F.R.D. at 116; Nehmer II, 712
F. Supp. at 1408; Agent Orange I, 597 F. Supp. at 749;
Agent Orange II, 818 F.2d at 174, and of congressional in-
vestigation and legislation, see, e.g., Dioxin Act, 98 Stat.
2725; Agent Orange Act, 105 Stat. 11. The NAS Reports
exist, by congressional mandate, to give the VA necessary
“independent scientific review of the available scientific ev-
idence regarding associations between diseases and expo-
sure to dioxin and other chemical compounds in
herbicides[.]” Agent Orange Act, 105 Stat. at 11; see Dioxin
Act § 3 (explaining that, with the Dioxin Act, Congress
sought “to ensure that [VA] disability compensation [wa]s
provided to veterans who were exposed” to Agent Orange
“based on sound scientific and medical evidence”); H.R.
REP . N O. 98-592, at 21 (explaining that the Dioxin Act re-
sulted from Congress’s “concern about the decision making
process within the [VA] with respect to Agent Orange
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EUZEBIO v. MCDONOUGH 24
compensation,” and, specifically, to the absence of “stand-
ards or guidelines available by which the [VA] justifie[d] its
position that no illness, except chloracne, result[ed] from
Agent Orange exposure”); S. REP . N O. 101-82, at 42 (ex-
plaining that the Agent Orange Act was necessary to revise
the Dioxin Act because, inter alia, Congress had “a strong
sense that what [wa]s needed at th[at] point [wa]s a review,
by an entity completely independent of [the] VA, that will
yield unified compilation and analysis of the results from
the various scientific studies” about Agent Orange expo-
sure). A constructive possession doctrine that allows an
administrative judge to “ignore [an NAS Report] she knows
exists” and knows “contains important . . . information,”
cannot “possibly be the outcome of a rational system of ad-
judication, especially one designed to be pro-veteran and
non-adversarial.” Euzebio, 31 Vet. App. at 408–09 (Allen,
J., dissenting).
The correct standard for constructive possession, as ar-
ticulated in Bell and later Lang, and as applied throughout
veterans benefit law, is relevance and reasonableness.
Lang, 971 F.3d at 1353; Bell, 2 Vet. App. at 612–13; see
Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (“The
relevancy limitation allows [the] VA to focus its efforts on
obtaining documents that have a reasonable possibility of
assisting claimants in substantiating their claims for ben-
efits.”). This is not to say that any and every treatise, text,
or medical record must now be part of the administrative
record. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed.
Cir. 2013) (explaining that “[e]vidence that is insufficiently
probative” is not “relevant”). Rather, where the Board has
constructive or actual knowledge of evidence that is “rele-
vant and reasonably connected” to the veteran’s claim, but
nonetheless fails to consider that evidence, Lang, 971 F.3d
at 1354; see AZ, 731 F.3d at 1311 (explaining that, to be
“relevant,” evidence “must tend to prove or disprove a ma-
terial fact”), the Veterans Court must ensure that Board
and VA decisions are not “arbitrary, capricious, an abuse
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EUZEBIO v. MCDONOUGH 25
of discretion, or otherwise not in accordance with law,” 38
U.S.C. § 7261(a)(3)(A), and remand for further considera-
tion or explanation where appropriate, see id. § 7252(a) (ex-
plaining that the Veterans Court has the “power to . . .
reverse a decision of the Board or to remand the matter, as
appropriate”).
That constructive possession requires relevance and
not a direct relationship makes sense in light of the VA’s
“statutory duty to assist veterans in developing the evi-
dence necessary to substantiate their claims.” Henderson,
562 U.S. at 431–32; see 38 U.S.C. § 5103A(a)(1) (“The Sec-
retary shall make reasonable efforts to assist a claimant in
obtaining evidence necessary to substantiate the claim-
ant’s claim[.]”);8 38 C.F.R. § 3.159(c) (articulating the VA’s
duty to assist as the “VA will make reasonable efforts to
help a claimant obtain evidence necessary to substantiate
the claim”). We have recognized that “Congress has explic-
itly defined the VA’s duty to assist a veteran with the fac-
tual development of a benefit claim in terms of relevance.”
McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008).
Where the VA has breached this duty by omitting from the
record documents within its control that could reasonably
be expected to be part of the veteran’s claim, the construc-
tive possession doctrine provides a remedy.
8 While 38 U.S.C. § 5103A was enacted after Bell, see
Veterans Claims Assistance Act of 2000, Pub. L. 106–475,
114 Stat. 2096 (2000) (enacting 38 U.S.C. § 5103A); Bell, 2
Vet. App. at 611 (issued July 21, 1992), the VA has had a
“duty to assist” since the 1972 promulgation of 38 C.F.R.
§ 3.103(a), see 38 C.F.R. § 3.103(a) (1972) (providing for the
“obligation of [the] VA to assist a claimant in developing
the facts pertinent to the claim”); Due Process and Appel-
late Rights, 37 Fed. Reg. 14,780, 14,780–81 (July 25, 1972)
(promulgating 38 C.F.R. § 3.103(a) (1972)).
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The Veterans Court concluded that “[t]o hold” that the
NAS Update 2014 was “constructively part of the record
before the Board” would “undermine the [Veterans] Court’s
jurisdictional obligation to base its review on the record of
proceedings before the Board[.]” Euzebio, 31 Vet. App. at
402; see id. at 400 (citing Kyhn v. Shinseki, 716 F.3d 572,
576–78 (Fed. Cir. 2013) for the proposition that the Veter-
ans Court “contravenes the jurisdictional requirements of
[38 U.S.C. §] 7252(b) by considering extra[-]record evi-
dence”). Similarly, the Government argues, for the first
time on appeal, that “[t]he constructive possession doctrine
is contrary to the clear meaning of 38 U.S.C. § 7252(b) be-
cause it construes ‘the record of proceedings before the Sec-
retary and Board’ to include documents that were not
before VA adjudicators[.]” Appellee’s Br. 34; see id. at 34
n.15 (conceding this argument “was not presented to the
Veterans Court”). Both are incorrect.
First, 38 U.S.C. § 7252(b) provides that “[r]eview in the
[Veterans] Court shall be on the record of proceedings be-
fore the Secretary and the Board.” Review on the adminis-
trative record, “the so-called ‘record rule,’” is a common,
well-established limitation placed on judicial review of
agency decisions. Home Prod., 633 F.3d at 1379 (citing, in-
ter alia, Fla. Power, 470 U.S. at 743); see, e.g., Camp v.
Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judi-
cial review should be the administrative record already in
existence, not some new record made initially in the re-
viewing court.”). The record rule, however, “is not without
exceptions.” Home Prod., 633 F.3d at 1379. The record
rule’s “purpose . . . is to guard against courts using new ev-
idence to convert the arbitrary and capricious standard
into effectively de novo review”—not to “preclude[] effective
judicial review” entirely. Axiom Res. Mgmt., Inc. v. United
States, 564 F.3d 1374, 1380 (Fed. Cir. 2009) (internal quo-
tation marks and citation omitted). Where, for example,
the administrative record is “insufficient to permit mean-
ingful judicial review,” the reviewing court may consider
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EUZEBIO v. MCDONOUGH 27
“extra-record evidence.” Id. at 1381 (internal quotation
marks and citation omitted); cf. 38 U.S.C. § 7111(a) (provid-
ing for the “[r]evision” of Board decisions based on “evi-
dence” of “clear and unmistakable error”). Similarly, “a
reviewing court is not precluded under [the record rule]
from considering events [that] occurred between the date
of an agency . . . decision and the date of decision on ap-
peal.” Borlem S.A.-Empreedimentos Industriais v. United
States, 913 F.2d 933, 939 (Fed. Cir. 1990); accord Home
Prod., 633 F.3d at 1380; cf. 38 U.S.C. § 5108(a) (instructing
the Secretary to “readjudicate [a supplemental] claim”
where “new and relevant evidence is presented or se-
cured”).
In reviewing Board and VA determinations, the Veter-
ans Court “decide[s] all relevant questions of law,” 38
U.S.C. § 7261(a)(1), and “hold[s] unlawful and set[s] aside
any [Board or VA] decisions” not in “accordance with law,”
id. § 7261(a)(3)(A). The Veterans Court must also review
Board and VA determinations for “abuse of discretion” and
“arbitrary [and] capricious” decision making, id., including
whether the Board or VA: “entirely failed to consider an
important aspect of the problem,” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983); “applie[d] different standards to similarly situ-
ated [individuals] and fail[ed] to support this disparate
treatment with a reasoned explanation and substantial ev-
idence,” Burlington N. & Santa Fe Ry. Co. v. Surface
Transp. Bd., 403 F.3d 771, 777 (D.C. Cir. 2005); or, failed
to “articulate a ‘rational connection between the facts found
and the choice made,’” Bowman Transp., Inc. v. Arkansas-
Best Freight Sys., Inc., 419 U.S. 281, 285 (1974) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)). Last, the Veterans Court may reverse “a finding
of material fact adverse to the claimant . . . if the finding is
clearly erroneous.” 38 U.S.C. § 7261(a)(4); see United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (“A
finding is ‘clearly erroneous’ when although there is
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EUZEBIO v. MCDONOUGH 28
evidence to support it, the reviewing court on the entire ev-
idence is left with the definite and firm conviction that a
mistake has been committed.”).
That is, while the Veterans Court must review Board
and VA decisions on the “record of proceedings,” 38 U.S.C.
§ 7252(b), that does not obviate its appellate role to, in fact,
“review” those decisions, Axiom, 564 F.3d at 1380; see Bor-
lem, 913 F.2d at 937 (“[D]eference does not require relin-
quishment of responsibility.”). Where “the record before
the agency does not support the agency action, if the agency
has not considered all relevant factors, or if the [Veterans]
[C]ourt simply cannot evaluate the challenged agency ac-
tion on the basis of the record before it,” remand to the
Board for “additional investigation or explanation” is ap-
propriate. Fla. Power, 470 U.S. at 744; see 38 U.S.C.
§ 7252(a) (explaining that the Veterans Court has the
“power to . . . reverse a decision of the Board or to remand
the matter, as appropriate”). Congress created the Veter-
ans Court for this express purpose. See Barrett v. Nichol-
son, 466 F.3d 1038, 1044 (Fed. Cir. 2006) (“[I]t was for the
purpose of ensuring that veterans were treated fairly by
the government and to see that all veterans entitled to ben-
efits received them that Congress provided for judicial re-
view through the Veterans’ Judicial Review Act[.]”).
Second, the Veterans Court misreads our decision in
Kyhn as precluding all consideration of “extra[-]record evi-
dence” in the course of its review of Board decisions.
Euzebio, 31 Vet. App. at 400 (citing Kyhn, 716 F.3d at 576–
78). In Kyhn, we explained the Veterans Court may not
“rel[y] upon extra-record evidence to make a finding of fact
in the first instance[.]” Kyhn, 716 F.3d at 578; id. at 575–
78 (concluding that the Veterans Court had improperly
considered affidavits proffered by the VA that had been cre-
ated specifically for the record on appeal and were “eviden-
tiary in nature” (citation omitted)). Indeed, “[i]n no event
shall findings of fact made by the Secretary or the
Board . . . be subject to trial de novo by the [Veterans]
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EUZEBIO v. MCDONOUGH 29
Court.” 38 U.S.C. § 7261(c); see Andre v. Principi, 301 F.3d
1354, 1362 (Fed. Cir. 2002) (explaining that 38 U.S.C.
§ 7261(c) “prohibits the Veterans Court from making fac-
tual findings in the first instance”); Hensley v. West, 212
F.3d 1255, 1263 (Fed. Cir. 2000) (“The statutory provisions
are consistent with the general rule that appellate tribu-
nals are not appropriate fora for initial fact finding.”). This
does not, however, preclude the Veterans Court from tak-
ing judicial notice of extra-record evidence that is “gener-
ally known” or “from sources whose accuracy cannot
reasonably be questioned,” Kyhn, 716 F.3d at 576 (quoting
F ED. R. EVID. 201), or in accordance with and in further-
ance of its review of Board and VA decisions, see 38 U.S.C.
§ 7261 (providing the “[s]cope of review” of the Veterans
Court over Board and VA decisions); Home Prod., 633 F.3d
at 1379, and, where appropriate, remanding to the VA “for
additional investigation or explanation,” Fla. Power, 470
U.S. at 744.9
The Government’s other counterarguments are also
unpersuasive. First, the Government argues that the
9 The Veterans Court similarly concluded that it
“lack[ed] jurisdiction to consider” “documents that post-
date the Board’s decision, such as The Purplebook . . . to
demonstrate that [the] VA and the Board were aware of the
[NAS Update 2014.]” Euzebio, 31 Vet. App. at 402 n.3.
This is incorrect. The Veterans Court may take judicial
notice of agency manuals, such as The Purplebook, that
post-date a decision by the Board. See F ED. R. EVID. 201
(providing for “judicial notice of adjudicative facts” (capi-
talization normalized)); Kyhn, 716 F.3d at 576 n.5 (noting
the applicability of F ED. R. EVID. 201 to the Veterans
Court); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991)
(“[The Veterans] Court[] may take judicial notice of facts
not subject to reasonable dispute.” (emphasis omitted) (cit-
ing F ED. R. EVID. 201)).
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EUZEBIO v. MCDONOUGH 30
Veterans Court’s current “direct-relationship test” for con-
structive possession “is not inconsistent with [the applica-
ble] statute[.]” Appellant’s Br. 43 (capitalization
normalized). The Government asserts that “direct rela-
tionship” and “relevance” are more or less the same stand-
ard. Id. at 39 (arguing that the direct relationship
“standard is akin to requiring that the document must be
relevant to the claim at issue”). This is facially incorrect.
The “direct relationship” standard as articulated in
Euzebio requires that the evidence be “specific to” the vet-
eran. Euzebio, 31 Vet. App. at 401; see id. (explaining that,
under the direct relationship standard, “even if the docu-
ment was generated for and received by [the] VA under a
statutory mandate” such as NAS Reports, “[t]he document
must bear a closer relationship to the [veteran] beyond
providing general information related to the type of disa-
bility on appeal”). That is not a relevance standard. Rele-
vance requires that the document tend to prove or disprove
a material fact. AZ, 731 F.3d at 1311 (explaining that, to
be “relevant,” evidence “must tend to prove or disprove a
material fact”); cf. F ED. R. E VID. 401 (defining “[r]elevant
[e]vidence” as “hav[ing] any tendency to make a fact more
or less probable than it would be without the evidence” and
that “fact is of consequence in determining the action”).
Second, the Government argues that even if the Veter-
ans Court were to conclude the Board had constructive pos-
session of “relevant” evidence, the NAS Update 2014 is not
relevant to Mr. Euzebio’s claim. Appellant’s Br. 43–44.
This argument is misplaced. It asks us to apply law to
facts—that is not our role here. See 38 U.S.C. § 7292(d)(2);
see also Wanless v. Shinseki, 618 F.3d 1333, 1336 (Fed.
Cir. 2010) (explaining that “[a]bsent a constitutional is-
sue . . . we lack the jurisdiction to ‘review’” either “‘a chal-
lenge to a factual determination, or . . . a challenge to a law
or regulation as applied to the facts of a particular case’”
(quoting 38 U.S.C. § 7292(d)(2))). Whether, under the cor-
rect legal standard, the Board had constructive possession
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EUZEBIO v. MCDONOUGH 31
of the NAS Update 2014 is a question for the Veterans
Court; whether the NAS Update 2014 is sufficient to satisfy
McLendon is a question for the Board. Lang, 971 F.3d at
1355; see Fla. Power, 470 U.S. at 744; Deloach v. Shinseki,
704 F.3d 1370, 1380 (Fed. Cir. 2013) (“[T]he evaluation and
weighing of evidence are factual determinations committed
to the discretion of the factfinder—in this case, the
Board.”).10
Third, the Government argues that “a reduced stand-
ard”—anything less than a direct relationship for
10 The Government similarly argues that, because the
VA and Board were not “required” under statute or regula-
tion to “consider[] NAS [R]eports when adjudicating indi-
vidual claims,” Appellee’s Br. 26, we should “reject
Mr. Euzebio’s argument that NAS [R]eports were intended
to be used in adjudicating individual claims,” id. at 30; see
generally 38 U.S.C. § 1116 (providing for the use of NAS
Reports in creating “presumptions of service connection for
diseases associated with exposure to certain herbicide
agents,” without reference to adjudication of individual
claims). The Government’s argument is, however, misdi-
rected. Under the constructive possession doctrine, the is-
sue is not whether 38 U.S.C. § 1116 or related regulations
mandate the consideration of NAS Reports specifically as
evidence in the adjudication of individual claims, but ra-
ther whether the NAS Reports are relevant evidence in the
adjudication of individual claims. Lang, 971 F.3d at 1353–
55; Bell, 2 Vet. App. at 612–13; see 38 U.S.C. §§ 5103A(a)(1)
(“The Secretary shall make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate
the claimant’s claim for a benefit under a law administered
by the Secretary.”), 5107(b) (providing that the VA “shall
consider all information and lay and medical evidence of
record in a case before the Secretary with respect to bene-
fits under laws administered by the Secretary”).
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EUZEBIO v. MCDONOUGH 32
constructive possession—is an “unworkable standard” that
would “place an impossible burden on the [B]oard and the
Secretary.” Appellant’s Br. 40. The Government warns
that, if required to consider, for example, the NAS Reports
for individual claimants, “[VA] [a]djudicators would be
asked to evaluate and draw a conclusion on the impact that
this aggregate characterization of evidence has on an indi-
vidual case.” Id. at 32. As an initial matter, it is unclear
what the Government believes VA adjudicators are meant
to do if not evaluate and draw conclusions from record evi-
dence to discern its impact on individual cases. See 38
U.S.C. §§ 5107(b), 7104(a), 7252(b); 38 C.F.R. §§ 3.102,
3.159, 3.303. Indeed, contrary to the Government’s argu-
ment, the VA already instructs its adjudicators to consider
NAS Reports in some individual claims, even where the
“VA has not conceded a relationship” between herbicide ex-
posure and the claimed medical condition. J.A. 76; see J.A.
75–76 (The Purplebook) (explaining that “suggestive evi-
dence of an association” between a medical condition and
“exposure to herbicide agents” as discussed in NAS Reports
may “be sufficient to establish an ‘indication’ that the cur-
rent disability ‘may be related’ to herbicide agent exposure
during service, as contemplated by 38 U.S.C.
§ 5103[A](d)(2)(b),” even if the VA has not “conceded a re-
lationship”). Further, the Veterans Court already remands
to the Board for consideration of NAS Reports in individual
claims without presumptive service connection, both on the
Secretary’s concession and sua sponte. See, e.g., Rodriguez
v. Wilkie, No. 18-3991, 2019 WL 6120504, at *3 (Vet. App.
Nov. 19, 2019) (noting that the “Secretary concede[d] [that]
the Board failed to provide an adequate statement of rea-
sons or bases for concluding that appellant’s hypertension
is not service connected,” because, inter alia, “the Board
failed to . . . analyze how the [NAS Update 2012] affects ap-
pellant’s hypertension claim,” then “accept[ing] the Secre-
tary’s concessions” and remanding “to address these
deficiencies”); Reas v. O’Rourke, No. 17-1271, 2018 WL
3699968, at *3 (Vet. App. July 26, 2018) (taking judicial
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EUZEBIO v. MCDONOUGH 33
notice of the NAS Update 2014 to demonstrate that the
“[VA medical] examiner’s opinion [wa]s incomplete” and re-
manding); Clark v. Shinseki, No. 12-2667, 2013 WL
6729512, at *2 (Vet. App. Dec. 20, 2013) (concluding that,
while the NAS Update 2010 was not in the administrative
record, “the language at issue [wa]s published in the Fed-
eral Register” and therefore “before the Board when the
Board’s decision was made,” noting that the NAS Update
2010 “may indicate an association between Agent Orange
and hypertension, warranting an examination,” and re-
manding to “the Board to consider this matter in the first
instance”). This suggests that consideration of NAS Re-
ports would not be “unworkable” or “impossible” for VA ad-
judicators.11
The Government’s argument neglects that relevance
and reasonableness are the pervasive, well-established
standard that the VA is required to apply and has applied
for decades. See Lang, 971 F.3d at 1353–55; Bell, 2 Vet.
App. at 612–13; 38 C.F.R. § 20.1403(b)(2) (codifying the
Bell rule for “Board decisions on legacy appeals” on claims
11 Further, the Government’s corollary to its argu-
ment, that “[r]equiring [NAS Reports] to be discussed or to
be the basis of an exam in all individual claims for a condi-
tion that has been evaluated in a[n] NAS report would . . .
put VA adjudicators and examiners in an extremely chal-
lenging position,” Appellee’s Br. 32, conflates the construc-
tive possession of evidence, Lang, 971 F.3d at 1353; Bell, 2
Vet. App. at 612, with the evaluation of that evidence, see
38 U.S.C. § 5103A(d)(2)(B); McLendon, 20 Vet. App. at 81.
The constructive possession doctrine does not compel a spe-
cific result, only that the VA and the Board fulfill its stat-
utory duty to gather and weigh all relevant evidence in
reaching its determination. See 38 U.S.C. §§ 5107(b),
7104(a); 38 C.F.R. § 3.303; see also Barrett, 466 F.3d
at 1044.
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EUZEBIO v. MCDONOUGH 34
that pre-date Bell as providing that the Board has con-
structive possession of “relevant documents possessed by
the [VA] . . . provided that the documents could reasonably
be expected to be part of the record”); see also Blount v.
West, 11 Vet. App. 32, 33 (1998) (considering “relevant” ev-
idence under Bell); Bowey v. West, 11 Vet. App. 106, 109
(1998) (framing Bell’s requirement that the evidence be
“reasonably expected to be a part of the record” as a ques-
tion of whether it is “reasonable to expect the [VA] or the
Board to have investigated, gathered, and considered” that
evidence and rejecting evidence that was “too tenuous” to
be relevant); Simington v. Brown, 9 Vet. App. 334, 335
(1996) (concluding that “the disputed items . . . are rele-
vant and should be included in the [record] if they were in
the Secretary’s ‘control’ so as to charge him with either ac-
tual or constructive knowledge”).
The Government’s argument also ignores “the im-
portance of systemic fairness and the appearance of fair-
ness” “in the context of veterans’ benefits,” including in the
development of all necessary evidence. Hodge v. West, 155
F.3d 1356, 1363 (Fed. Cir. 1998); see 38 U.S.C.
§ 5103A(a)(1); 38 C.F.R. § 3.159(c). The veterans’ benefits
system is “uniquely pro-claimant.” Sullivan v. McDonald,
815 F.3d 786, 791 (Fed. Cir. 2016). It is “not meant to be a
trap for the unwary, or a stratagem to deny compensation
to a veteran who has a valid claim[.]” Comer v. Peake, 552
F.3d 1362, 1369 (Fed. Cir. 2009); see Barrett, 466 F.3d at
1044 (“The government’s interest in veterans cases is not
that it shall win, but rather that justice shall be done, that
all veterans so entitled receive the benefits due to them.”).
Accordingly, in requiring a “direct relationship” between
the NAS Update 2014 and Mr. Euzebio’s claim, rather than
relevance to his claim, the Veterans Court applied a legally
erroneous standard.
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EUZEBIO v. MCDONOUGH 35
CONCLUSION
We have considered the Government’s remaining argu-
ments and find them unpersuasive. The Judgment of the
U.S. Court of Appeals for Veterans Claims is
VACATED AND REMANDED
COSTS
Costs to Mr. Euzebio.
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