Aviles-Rivera v. McDonough, 19-5969

CourtCourt of Appeals for Veteran Claims
Writing for the CourtBARTLEY, CHIEF JUDGE
PartiesVictor Manuel Aviles-Rivera, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee.
Docket Number19-5969
Decision Date02 May 2022

Victor Manuel Aviles-Rivera, Appellant,

Denis McDonough, Secretary of Veterans Affairs, Appellee.

No. 19-5969

United States Court of Appeals For Veterans Claims

May 2, 2022

Argued September 10, 2021

On Appeal from the Board of Veterans' Appeals

Robert A. Jackson, of Elk Grove, California, for the appellant.

Omar Yousaf with whom William A. Hudson, Jr., Principal Deputy General Counsel; Mary AnnFlynn, Chief Counsel; and Kenneth A. Walsh, Deputy Chief Counsel, were on the brief, all of Washington, D.C., for the appellee.

Before B ARTLEY, Chief Judge, and TOTH and FALVEY, Judges.


Veteran Victor Manuel Aviles-Rivera appeals through counsel an August 20, 2019, Board of Veterans' Appeals (Board) decision that denied service connection for hypertension. Record (R.) at 3-20. [1] The appeal is timely, and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of this Court, with oral argument, [2] to address whether the Board erred by not considering the 11th National Academy of Sciences (NAS) Veterans and Agent Orange Update (NAS Update), which was published after the veteran's election into VA's modernized review system and the regional office's (RO's) higher-level review decision but before the Board issued its decision. We hold that the evidentiary record restriction in 38 U.S.C. § 7113(a) barred the Board from considering the 11th NAS Update. Therefore, we conclude that the veteran's assertions of Board


error, which are all predicated on the Board considering the 11th NAS Update, must fail. Accordingly, the Board decision will be affirmed.


Mr. Aviles-Rivera served honorably in the U.S. Army from March 1968 to December 1969, including service in the Republic of Vietnam. R. at 1304.

In January 2013, the veteran filed a claim for service connection for hypertension. R. at 1155-60. In May 2014, a VA RO denied the claim. R. at 1081-85. In November 2014, the veteran filed a Notice of Disagreement (NOD), R. at 1057, and included a statement from Dr. Carlos E. Mora Quesada, R. at 1058-62. As relevant, Dr. Mora Quesada diagnosed hypertensive cardiovascular disease and opined that the veteran's condition was "more probable than not" related to his military service. Id. Following a December 2014 Statement of the Case (SOC), R. at 1013-34, the veteran timely perfected an appeal to the Board, R. at 1010.

In April 2017, the Board remanded the claim to obtain a medical opinion regarding the cause of the veteran's hypertension. R. at 902-10. At that time, the Board noted that, although Dr. Mora Quesada's opinion lacked rationale, it was enough to trigger VA's duty to provide an examination. R. at 907-08 (referring to Dr. Mora Quesada as "CM., M.D." and citing McLendon v. Nicholson, 20 Vet.App. 79, 81 (2006)). In its remand directives, the Board instructed the VA examiner to "consider the NAS Updates[, ] which concluded that there was 'limited or suggestive evidence of an association' between hypertension and herbicide exposure." R. at 909.

A VA examiner in October 2017 confirmed a diagnosis of hypertension, R. at 835, but opined that it was less likely than not related to military service because of the length of time between service and the 2006 initial diagnosis of hypertension. R. at 837-38. The examiner reviewed the 2014 NAS Update[3] and stated that, "[although the Update states that there is suggestive evidence to link hypertension to Agent Orange exposure, there is limited evidence that [Agent Orange] causes or aggravates [hypertension]. It also states that additional research is warranted." R. at 838. The RO issued a Supplemental SOC continuing the denial of service connection in May 2018. R. at 205-13.


In June 2018, Mr. Aviles-Rivera elected to participate in VA's Rapid Appeals Modernization Program (RAMP), selecting higher-level review for the service-connection claim. R. at 194. In doing so, he consented to higher-level review based on the evidence submitted to VA as of the date of his RAMP opt-in election. Id.

In September 2018, the RO issued a higher-level review decision under RAMP that denied the hypertension claim. R. at 56-81. In February 2019, Mr. Aviles-Rivera appealed the RO decision to the Board and opted for direct review based on the evidence of record at the time of the September 2018 prior RO decision. R. at 33-34.

In the August 2019 decision on appeal, the Board denied service connection for hypertension. The Board acknowledged the veteran's RAMP election and stated that the evidentiary record closed on June 18, 2018, the date of the election. R. at 6. In reaching its conclusion that service connection was not warranted, the Board acknowledged that Mr. Aviles-Rivera had a current hypertension disability and was exposed to herbicides during service in Vietnam, but found the preponderance of the evidence weighed against a link between the two. R. at 17-19. As to presumptive service connection, the Board stated that the Secretary had determined that there is no positive association between herbicide exposure and hypertension. R. at 16. As to direct service connection, the Board stated that, although the 2010 NAS Update found limited or suggestive evidence of an association between herbicide exposure and hypertension, [4] the October 2017 VA examiner's opinion[5] was more probative than either Dr. Quesada's opinion or the NAS finding because it was provided after both an examination of the veteran and a review of the record on appeal and is supported by citation to evidence found in the claims file and controlling medical literature. R. at 18-19. This appeal followed.



Before discussing the specific arguments in this appeal, we provide an overview of the NAS Update process and VA's modernized review process, as they serve as the foundation for the parties' arguments.

A. NAS Updates

In the Agent Orange Act of 1991 ("Agent Orange Act"), Congress directed VA to enter into an agreement with NAS, which was tasked to review and summarize scientific evidence concerning exposure to herbicides used by the military in Vietnam and diseases suspected to be associated with such exposure. Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, § 3 (Feb. 6, 1991) (originally codified at 38 U.S.C. § 316 but later renumbered as 38 U.S.C. § 1116). NAS was to issue a report reflecting its findings and issue additional reports every few years in consideration of updated scientific evidence. Id.; see 38 U.S.C. § 1116 Note. Following receipt of each NAS report, the Secretary was to determine whether a presumption of service connection was warranted for these diseases and respond either through additional rulemaking if a presumption was warranted or by explaining why no presumption was warranted. Pub. L. No. 102-4, § 2; see 38 U.S.C. §1116(b)-(c).

NAS issued its first report in 1994 and subsequent reports about every 2 years thereafter. See Health and Medicine Division Reports on Agent Orange, available at https://www.publichealth.va.gov/exposures/agentorange/publications/health-and-medicine-division.asp (last accessed April 20, 2022). In March 2016, NAS published its 10th Update and in November 2018, NAS published its 11th Update. Veterans and Agent Orange: Update 11 (2018); see Vietnam Veterans and Agent Orange Exposure - New Report, available at https://www.nationalacademies.org/news/2018/ll/vietnam-veterans-and-agent-orange-exposure-new-report (last accessed April 20, 2022). Each NAS report classifies various diseases based on the extent of available research into one of four hierarchal categories: sufficient evidence of an association, limited or suggestive evidence of an association, inadequate or insufficient evidence of an association, or no association. See, e.g., Veterans and Agent Orange: Update 11 at 6.

The sixth NAS Update was the first report to place hypertension in the "limited or suggestive evidence of an association" category. Veterans and Agent Orange: Update 2006(2007), at 11. That classification was reaffirmed by the 7th, 8th, 9th, and 10th NAS Updates. See Veterans and Agent Orange: Update 2008 (2009), at 7; Veterans and Agent Orange: Update 2010 (2012),


at 8; Veterans and Agent Orange: Update 2012 (2013), at 8; Veterans and Agent Orange: Update 2014 at 8. The 11th NAS Update elevated hypertension to the "sufficient evidence of an association" category. Veterans and Agent Orange: Update 11 at 7.

B. VA's Modernized Review System

On August 23, 2017, Congress passed the Veterans Appeals Improvement and Modernization Act of 2017 ("AMA"), Pub. L. 115-55, 131 Stat. 1105, which "dramatically overhauled the VA appeals process." Military-Veterans Advocacy v. Sec'y of Veterans Affairs, 7 F.4th 1110, 1140 (Fed. Cir. 2021). Under this system, claimants within 1 year of an initial decision by the agency of original jurisdiction (AOJ) have three options (known as "lanes") for administrative review: file a supplemental claim based on new and relevant evidence; request higher-level review at the AOJ level based on the same evidentiary record; or file an NOD to appeal the decision to the Board. Id.; see 38 U.S.C. §§5104B, 5104C(a), 5108; Andrews v. McDonough, 34 Vet.App. 151, 157 (2021). When appealing to the Board, claimants have to choose one of three Board dockets: "direct review" docket; "additional evidence" docket; or "hearing" docket. 38U.S.C. § 7105(b)(3); see Andrews, 34 Vet.App. at 157. In the additional evidence and hearing dockets, claimants are permitted to submit additional evidence to the Board. 38 U.S.C. § 7113(b)-(c); see 38 U.S.C. § 7105(b)(3)(a)-(b); 38 C.F.R. §§ 20.302 (2021), 20.303 (2021). In the direct review docket, the Board reviews the appeal without additional evidence, 38 U.S.C. § 7105(b)(3)(c); 38 C.F.R....

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