Robert Thornton v. Denis R. McDonough, Secretary of Veterans Affairs

In the veterans-benefits system, Congress has provided that an otherwise-final agency decision is sub­ ject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provi­ sions of law and regulation 38 U.S.C. § 7104(a). The Board of Veterans’ Appeals (Board) applies a rebuttable presumption when reviewing veterans’ disability claims. The Supreme Court in Mathis v. Shulkin, 137 S.Ct. 1994 (2017): Statement of Justice Sotomayor respecting the denial of certiorari. This petition raises important questions about how the Government carries out its obligations to our veterans. The Board of Veterans’ Appeals (Board) applies a rebuttable presumption when reviewing veterans’ disability claims: Justice Gorsuch, dissenting from denial of certiorari. The VA appears to apply the same presumption in its own administrative proceedings, but where does this presumption come from? It enjoys no apparent provenance in the relevant statutes. There Congress imposed on the VA an affirm­ ative duty to assist—not impair—veterans seeking evidence for their disability claims. See 38 U.S.C. § 5103A(a)(i). And consider how the presumption works in practice. But how is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the inter­ ests of those the law says the agency is supposed to serve? The question presented are: 1. Whether, the appellant has demonstrated that [the] presumption of regularity operates to violate his