United States Court of Appeals 

for the Federal Circuit ______________________ 

JIMMY R. SPRINKLE,

Claimant-Appellant,

v.

 ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2012-7156

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-3231, Judge Alan G. Lance Sr.

______________________ 

Decided: October 24, 2013 

______________________ 

JOHN F. CAMERON, of Montgomery, Alabama, arguing 

for claimant-appellant. 

VINCENT D. PAUL PHILLIPS, JR., Trial Attorney, Commercial Litigation Branch, Civil Division, United States 

Department of Justice, of Washington, DC, arguing for 

respondent – appellee. With him on the brief were 

STUART F. DELERY, Principal Deputy Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, MARTIN F.

HOCKEY, JR., Assistant Director, and CARRIE A.

DUNSMORE, Trial Attorney. Of counsel on the brief were 

DAVID J. BARRANS, Deputy Assistant General Counsel, 
2 JIMMY SPRINKLE v. SHINSEKI

and TRACEY PARKER WARREN, Attorney, United States 

Department of Veterans Affairs, of Washington, DC. 

______________________ 

Before RADER, Chief Judge, REYNA, and TARANTO, Circuit 

Judges.

Opinion for the court filed by Circuit Judge REYNA. 

Dissenting opinion filed by Circuit Judge TARANTO. 

REYNA, Circuit Judge.

Jimmy Sprinkle appeals a decision of the Court of Appeals for Veterans Claims, which denied his claims for 

entitlement to service connection for mitral valve prolapse 

and benign familial myoclonus. See Sprinkle v. Shinseki, 

No. 10-3231, 2012 U.S. App. Vet. Claims LEXIS 284 (Vet. 

App. Feb. 23, 2012). We agree that Mr. Sprinkle was not 

denied fair process as it related to responding to a medical 

exam ordered by the Board of Veterans’ Appeals 

(“Board”). Accordingly, we affirm. 

I. BACKGROUND

Mr. Sprinkle served in the U.S. Army from May 13, 

1973 until February 19, 1974. While in the service, Mr. 

Sprinkle was diagnosed with schizophrenia and prescribed a high dose of Thorazine®. In August 1990, 

almost seventeen years after separating from the military, Mr. Sprinkle was diagnosed with mitral valve prolapse and chorea, a movement disorder similar to benign 

familial myoclonus. After Mr. Sprinkle succeeded in 

establishing entitlement to disability compensation before 

the Social Security Administration, the Veteran’s Affairs 

(VA) Regional Office awarded Mr. Sprinkle a nonserviceconnected pension on April 14, 1993 effective August 

1990. On October 26, 2001, Mr. Sprinkle filed an application with the VA for entitlement to a service connection 

for mitral valve prolapse and myoclonus. Mr. Sprinkle 

maintained that he was incorrectly diagnosed with schiz-
JIMMY SPRINKLE v. SHINSEKI 3

ophrenia while in the service and that the high doses of 

Thorazine® he received worsened his mitral valve prolapse and caused his myoclonus. 

Following an initial medical exam, the Regional Office 

concluded that Mr. Sprinkle’s conditions were not serviceconnected due to the seventeen-year gap between service 

and the onset of his mitral valve prolapse and myoclonus. 

In a July 27, 2009 decision, the Board remanded to the 

Regional Office for another medical examination to address a letter from Mr. Sprinkle’s private physician that 

indicated that his conditions were worsened by his inservice ingestion of Thorazine®. Mr. Sprinkle received a 

second VA examination on October 7, 2009, but the Regional Office continued to deny his entitlement to service 

connection in a October 21, 2009 Supplemental Statement 

of the Case. The Supplemental Statement of the Case 

summarized and relied on the medical opinions derived 

from the October 7th examination: neither Mr. Sprinkle’s 

mitral valve prolapse nor his familial myoclonus was 

“caused by or a result of the administration of thorazine 

while he was on active duty military service.” Joint App’x 

90. Furthermore, Mr. Sprinkle was notified that he had a 

period of time (30 days) to respond with additional comments or evidence before his appeal would be returned to 

the Board; alternatively, Mr. Sprinkle could request that 

the Regional Office return his appeal to the Board prior to 

the expiration of the 30-day period. On November 4, 

2009, Mr. Sprinkle pursued the latter course by indicating 

that he had no other information or evidence to submit 

and requesting that his case be returned to the Board as 

soon as possible. 

On November 13, 2009, the Regional Office sent Mr. 

Sprinkle a letter, notifying him that his appeal had been 

certified to the Board and that the Regional Office was 

transferring all his records to the Board. The letter also 

indicated that Mr. Sprinkle had 90 days, or until the 

Board issued a decision in his case, to send the Board 
4 JIMMY SPRINKLE v. SHINSEKI

additional evidence concerning his appeal. On November 

20, 2009, Mr. Sprinkle, now through counsel, responded to 

the Regional Office, disagreeing with the conclusions of its 

Supplemental Statement of the Case and expressing a 

desire to have his appeal returned to the Board. In doing 

so, Mr. Sprinkle also requested that “all . . . evidence . . . 

obtained by the VA after December 1, 2004,” be sent to 

him. Joint App’x 92. This request was broad enough to 

include the medical examiner’s October 7, 2009 opinion. 

Mr. Sprinkle reiterated his request to the Regional Office 

in February and March, 2010. Because the record had 

already been sent to the Board, however, each request for 

evidence was forwarded by the Regional Office to the 

Board. Sprinkle, 2012 U.S. App. Vet. Claims LEXIS 284, 

at *3–4.

On May 6, 2010, Mr. Sprinkle’s counsel received 525 

pages of documents including the medical examiner’s 

October 7, 2009 opinion.1 Less than thirty days later, on 

June 3, 2010, the Board issued its decision denying Mr. 

Sprinkle’s entitlement to service connection for his mitral 

valve prolapse and benign familial myoclonus. Mr. 

Sprinkle appealed to the Court of Appeals for Veterans 

1 Mr. Sprinkle notes that the date of the cover letter 

accompanying the documents was May 2, 2010, which 

was a Sunday. Appellant’s Br. 9 & n.1. He asks this 

court to take judicial notice of this fact, ostensibly because 

mail is not collected on Sundays and “[t]he date the Board 

furnishes a copy [of an opinion is] presumed to be the 

same as the date of the letter . . . that accompanies the 

copy of the opinion for purposes of determining whether a 

response was timely filed.” 38 C.F.R. § 20.903(a). Because we conclude that § 20.903(a) does not apply to this 

case, we see no reason to consider any other date than 

May 6, 2010, the date Mr. Sprinkle admittedly received 

the documents. 

 
JIMMY SPRINKLE v. SHINSEKI 5

Claims arguing, inter alia, that the Board failed to afford 

him fair process in the adjudication of his claims by not 

providing him with a copy of the October 7, 2009 medical 

examiner’s opinion until fewer than 30 days before the 

Board’s decision. The appeals court rejected Mr. Sprinkle’s fair process arguments and affirmed the Board’s 

decision denying entitlement to service connection. Mr. 

Sprinkle timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(a), (c).

II. STANDARD OF REVIEW

According to 38 U.S.C. § 7292(a), this court reviews 

decisions of the Court of Appeals for Veterans Claims 

with respect to the validity of a decision on a rule of law 

or of any statute or regulation or any interpretation 

thereof that was relied on in making the decision. § 

7292(a). Except to the extent an appeal presents a constitutional issue, this court may not review a challenge to a 

factual determination or a challenge to a law or regulation as applied to the facts of a particular case. 

§ 7292(d)(2). Accordingly, we review questions of statutory and regulatory interpretation de novo. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004).

III. DISCUSSION

A. The Regulations

Claims for veterans’ benefits are initially developed 

and adjudicated by a VA Regional Office. See 38 U.S.C. § 

7105(b)(1), (d)(1). Decisions of the Regional Office are 

then reviewed on appeal by the Board. See 38 U.S.C. § 

7104(a). To ensure that claimants receive the benefit of 

this two-tiered review within the agency, all evidence 

relevant to a claim generally must be considered by the 

Regional Office in the first instance. Id. Accordingly, the 

Regional Office conducts all necessary evidentiary development, including obtaining medical examinations and 

opinions. 35 U.S.C. § 5103A(d). If the Regional Office 
6 JIMMY SPRINKLE v. SHINSEKI

denies a benefit sought, it must provide the claimant 

notice of the decision and include “a summary of the 

evidence considered by the Secretary.” 38 U.S.C. § 

5104(b). And if the claimant disagrees with that denial, 

the Regional Office must then prepare a Statement of the 

Case that includes “[a] summary of the evidence in the 

case pertinent to the issue or issues with which disagreement has been expressed.” 38 U.S.C. § 7105(d)(1); see also

38 C.F.R. § 19.29 (requiring that the Statement of the 

Case “be complete enough to allow the appellant to present written and/or oral arguments before the Board”). 

Any additional evidence that the claimant presents thereafter must be addressed by the Regional Office in a Supplemental Statement of the Case. 38 C.F.R. §§ 19.31(b), 

19.37(a).

Congress created a narrow exception to this firstinstance consideration of evidence by the Regional Office, 

providing that “when, in the judgment of the Board, 

expert medical opinion . . . is warranted by the medical 

complexity or controversy involved in an appeal case, the 

Board may secure an advisory medical opinion from one 

or more independent medical experts who are not employees of the [VA].” 38 U.S.C. § 7109(a); see also 38 C.F.R. § 

20.901(a). Additionally, Congress, and the VA through 

the passage of enabling regulations, created a procedural 

safeguard to this first-instance evidence gathering by the 

Board. Specifically, the Board is required to notify the 

claimant that it is requesting an advisory medical opinion; provide the claimant with a copy of the opinion; and 

allow the claimant 60 days to respond to the opinion with 

evidence or argument. § 7109(c); 38 C.F.R. § 20.903(a). 

This case, however, does not implicate this exception. The 

Board did not obtain an advisory opinion pursuant to 

§ 20.901. Cf. Gambill v. Shinseki, 576 F.3d 1307, 1309 

(Fed. Cir. 2009). Instead, it remanded the case for a 

medical examination administered by the Regional Office. 
JIMMY SPRINKLE v. SHINSEKI 7

In re Sprinkle, No. 05-06 785A, slip op. at 2–3 (B.V.A. Jul. 

27, 2009). 

Under 38 C.F.R. § 19.9, the Board is required to remand a case to the Regional Office specifying the action to 

be taken “[i]f further evidence, clarification of the evidence, correction of a procedural defect, or any other 

action is essential for a proper appellate decision.” § 19.9. 

Following any additional development of the evidence, the 

Regional Office decides whether the record as a whole 

supports allowance of the benefits sought. 38 C.F.R. § 

19.38. If any benefit sought remains denied, the Regional 

Office must issue a Supplemental Statement of the Case 

concerning the additional development that informs the 

claimant of any material changes in, or additions to, the 

information previously considered by the Regional Office. 

Id.; 38 C.F.R. § 19.31. The claimant is then given 30 days 

to respond to the Supplemental Statement of the Case 

before the appeal is returned to the Board. § 19.38. After 

the appeal is certified to the Board, the claimant has an 

additional 90 days to submit new evidence to the Regional 

Office. 38 C.F.R. § 20.1304(a). The question presented by 

this case is whether fair process requires that the Board 

allow the claimant an additional 60 days to respond to 

evidence obtained on remand after the claimant declines 

to respond to a summary of that evidence in a Supplemental Statement of the Case.

B. Fair Process

In Thurber v. Brown, 5 Vet. App. 119 (1993), the 

Court of Appeals for Veterans Claims created what became known as the “fair process” doctrine, holding that, 

before the Board relies on any evidence developed or 

obtained subsequent to the issuance of the most recent 

Statement of the Case or Supplemental Statement of the 

Case, the Board must “provide a claimant with reasonable 

notice of such evidence . . . and a reasonable opportunity 

for the claimant to respond to it.” Id. at 126. The claim-
8 JIMMY SPRINKLE v. SHINSEKI

ant must be permitted to respond with not only argument 

and comment, but also provide additional evidence. 

Austin v. Brown, 6 Vet. App. 547, 551 (1994).

This court has not explicitly addressed the fair process doctrine. See Gambill, 576 F.3d at 1310–11 (discussing the fair process concerns involved in a denial of the 

claimant’s ability to serve interrogatories on a medical 

examiner, but concluding that the denial was harmless 

error). When the Court of Appeals for Veteran’s Claims 

created a procedural right in the name of fair process, the 

court primarily relied on the underlying VA adjudicatory 

scheme. Gambill, 576 F.3d at 1310. At the time, neither 

this court nor the Supreme Court had ruled on the extent 

to which applicants for government benefits had a property right in their expectation. Thurber, 5 Vet. App. at 123. 

Instead, the court premised its holding upon the considerations of fair process announced in Gonzales v. United 

States, 348 U.S. 407 (1955). In Gonzales, the Supreme 

Court held that despite silence in the applicable statute 

and regulations as to a particular procedural requirement, the requirement was implicit in the statute and 

regulations when “viewed against our underlying concepts 

of procedural regularity and basic fair play.” Id. at 412. 

Since that time, this court has held the Due Process 

Clause of the Constitution applies to proceedings in which 

the VA decides whether claimants are eligible for veterans’ benefits. Cushman v. Shinseki, 576 F.3d 1290, 1299–

1300 (Fed. Cir. 2009). In light of this precedent and 

Thurber, the question becomes whether the fair process 

doctrine applies in this case. We conclude that it does 

not.

C. Analysis

By its terms, the fair process doctrine is only triggered 

when “evidence [is] developed or obtained by [the Board] 

subsequent to the issuance of the most recent [Statement 

of the Case] or [Supplemental Statement of the Case] 
JIMMY SPRINKLE v. SHINSEKI 9

with respect to such claim.” Thurber, 5 Vet. App. at 126. 

In this case, while the Regional Office developed evidence 

on remand through a medical examination, it issued a 

Supplemental Statement of the Case that provided a 

“summary of the evidence in the case pertinent to the 

issue or issues with which disagreement has been expressed,” 38 U.S.C. § 7105(d)(1), and that was “complete 

enough to allow the appellant to present written and/or 

oral arguments before the [Board],” 38 C.F.R. § 19.29. 

Crucially, Mr. Sprinkle has not challenged the adequacy 

of the summary. Sprinkle, 2012 U.S. App. Vet. Claims 

LEXIS 284, at *4. It follows that the Board did not develop or obtain any evidence subsequent to the issuance of 

the most recent Supplemental Statement of the Case. 

Indeed, even though Mr. Sprinkle had 30 days to respond 

to the Supplemental Statement of the Case, he expressly 

notified the VA that he had no other information or 

evidence to submit and requested that his case be returned to the Board as soon as possible. Supp. App’x 14. 

Because the Regional Office received and considered the 

evidence before summarizing it in a Supplemental Statement of the Case, this case does not implicate the statutory exception to the prohibition against first-instance 

Board review of evidence that the fair process doctrine is 

designed to safeguard.

This case is unlike most other cases that implicate the 

doctrine where the Board has obtained an advisory medical opinion (or treatise) pursuant to § 7109 (and 38 C.F.R. 

§ 20.901) and fails to allow the claimant to respond with 

additional evidence or interrogatories. E.g., Gambill, 576 

F.3d 1307; Thurber, 5 Vet. App. 119. Although this case 

involves a medical examination conducted by the Regional 

Office on remand, Mr. Sprinkle argues that the fair 

process doctrine should be extended to cover it. In particular, Mr. Sprinkle argues that, in Young v. Shinseki, 22 

Vet. App. 461 (2009), the Court of Appeals for Veterans 

Claims has extended the fair process doctrine to cases 
10 JIMMY SPRINKLE v. SHINSEKI

involving Board remands. Young is distinguishable from 

Mr. Sprinkle’s case because Mr. Sprinkle was put on 

notice about the substance of the medical report through 

the Supplemental Statement of the Case. Also, Mr. 

Sprinkle did receive a copy of the medical examination 

almost a month before the Board issued its decision. In 

Young, the veteran did not even receive a copy of the 

medical opinion until after the Board issued its decision. 

Young, 22 Vet. App. at 471. Thus, because the Regional 

Office in this case considered the medical examination 

initially before summarizing it in a Supplemental Statement of the Case and there is nothing undermining that 

summary, we conclude that the fair process doctrine is not 

implicated by this case.

Mr. Sprinkle also argues that the fair process doctrine 

requires the Board to provide him with a copy of the 

medical examiner’s opinion and allow him 60 days to 

respond. Mr. Sprinkle relies on § 20.903(a) to support his 

argument for incorporating a 60-day response period into 

the fair process doctrine. That regulation, however, is 

inapplicable to this case because it only applies to advisory opinions obtained by the Board pursuant to § 20.901. 

See Gambill, 576 F.3d at 1309. Section 20.901 provides 

that “[t]he Board may obtain a medical opinion from an 

appropriate health care professional in the Veterans 

Health Administration . . . on medical questions involved 

in the consideration of an appeal when, in its judgment, 

such medical expertise is needed for equitable disposition 

of an appeal.” § 20.901(a). In this case, the Board remanded to the Regional Office to conduct a medical examination. Sprinkle, slip op. at 2–3. Accordingly, the 

pertinent regulations controlling actions by the Regional 

Office were §§ 19.31, 19.37, and 19.38. Consistent with 

those regulations, the Regional Office issued a Supplemental Statement of the Case summarizing the evidence 

it obtained on remand and returned the case to the Board 
JIMMY SPRINKLE v. SHINSEKI 11

after Mr. Sprinkle indicated that he had no additional 

evidence to submit. 

While it is regrettable that there was less than 30 

days between when Mr. Sprinkle’s counsel received the 

medical exam he subsequently requested and when the 

Board issued its decision, Mr. Sprinkle was not prejudiced

by any action of the agency. See Gambill, 576 F.3d at 

1311 (“Harmless error is fully applicable to veterans’ 

claims cases, subject to the same principles that apply 

generally to harmless error analysis in other civil and 

administrative cases.”) (citing Shinseki v. Sanders, 556 

U.S. 396, 406 (2009)). Had Mr. Sprinkle not instructed 

the Regional Office that he had no additional evidence to 

submit and not requested that it immediately return his 

appeal to the Board, his record would have remained with 

the Regional Office. This would have enabled the Regional Office to timely process his subsequent requests for 

documents including the medical examiner’s opinion 

rather than having to forward those requests to the 

Board. Furthermore, Mr. Sprinkle had more than seven 

months to offer additional evidence from the date the 

Regional Office issued its Supplemental Statement of the 

Case to the date when the Board issued its decision. This 

vastly exceeds the four months required by the regulations. § 19.38 (30 days); § 20.1304(a) (90 days). Yet Mr. 

Sprinkle chose not to respond to the only requirement of 

the Regional Office under the regulations: a summary 

“complete enough to allow the appellant to present written and/or oral arguments before the [Board].” 38 C.F.R. 

§ 19.29. Accordingly, Mr. Sprinkle cannot show prejudice 

in this case.

IV. CONCLUSION

For the foregoing reasons, we agree with the Court of 

Appeals for Veterans Claims’ determination that Mr. 

Sprinkle was not denied fair process. We have considered 
12 JIMMY SPRINKLE v. SHINSEKI

Mr. Sprinkle’s other arguments and find nothing in them 

that upsets our conclusions. Accordingly, we affirm. 

AFFIRMED

COSTS

Each party shall bear its own costs.
United States Court of Appeals 

for the Federal Circuit ______________________ 

JIMMY R. SPRINKLE,

Claimant-Appellant,

v.

 ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2012-7156

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-3231, Judge Alan G. Lance Sr.

______________________ 

TARANTO, Circuit Judge, dissenting.

I would vacate the decision of the Court of Appeals for 

Veterans Claims and remand the matter for that court to 

reconsider its ruling on the non-constitutional “fair process” doctrine. The Veterans Court’s discussion leaves 

uncertain how it interpreted the doctrine. On this “rule of 

law” issue, 38 U.S.C. § 7292(a), it is advisable for the 

Veterans Court to provide clarification in the first instance. 

Our jurisdictional grant covering this case, 38 U.S.C. 

§§ 7292(a), (d)(1), sharply limits what we may decide. Mr. 

Sprinkle has not presented a constitutional issue. He has 

presented only an argument based on a Department of 

Veterans Affairs (VA) regulation, 38 C.F.R. § 20.903(a), 
2 JIMMY SPRINKLE v. SHINSEKI

and an argument based on the “fair process” doctrine, 

which the Veterans Court derived from the statutory 

regime. Without a constitutional challenge before us, we 

have no jurisdiction to decide any disputed question of

how the legal standards invoked by Mr. Sprinkle apply to 

his particular case. We may decide only whether the 

Veterans Court relied on an incorrect view of the legal 

standards Mr. Sprinkle invokes. See Munro v. Shinseki, 

616 F.3d 1293, 1296 (Fed. Cir. 2010); Forshey v. Principi, 

284 F.3d 1335, 1351 (Fed. Cir. 2002) (en banc).

The Veterans Court read 38 C.F.R. § 20.903(a) to apply only when the Board of Veterans’ Appeals has requested that a medical advisory opinion be furnished 

directly to it, not when the Board has remanded the case 

for the Regional Office to develop additional medical 

evidence, including by providing the claimant a medical 

examination. I see no error of law in that reading of the 

regulation, considered in its statutory and regulatory 

context. With no identified error of law in the interpretation of the regulation, there is no further role for us in 

reviewing Mr. Sprinkle’s regulation-based argument.

With respect to Mr. Sprinkle’s invocation of the “fair 

process” doctrine, the Veterans Court left unclear how it 

interprets the doctrine. The uncertainties may bear on its 

resolution of Mr. Sprinkle’s case. The following undisputed facts frame the legal question: acting under an order of 

the Board, the Regional Office gave Mr. Sprinkle a medical examination, which resulted in a medical report (J.A.

86); it provided him with a Supplemental Statement of 

the Case that partly described the report but did not 

quote it, and it did not give the report to Mr. Sprinkle (id.

at 89-91); Mr. Sprinkle said that he had no further evidence to submit but then asked, repeatedly, for a large 

volume of VA records, a request that included the report

(id. at 92-95, 96, 99); the VA agreed that he was entitled 

to the report and furnished it after six months (id. at 103); 

one month later, the Board relied on the report, specifical-
JIMMY SPRINKLE v. SHINSEKI 3

ly relying on statements in the report that do not appear 

in the Supplemental Statement of the Case (id. at 23-25); 

but neither before nor after receiving the requested report 

did Mr. Sprinkle ask the Board to postpone its ruling 

until he could both see the report and obtain any needed 

medical or other consultation to enable him to file an 

adequate response to it.

The Veterans Court made very limited points about 

the “fair process” doctrine in rejecting Mr. Sprinkle’s 

argument that the Board violated the doctrine by relying 

on evidence before he had been given a fair opportunity to 

respond to that evidence, where he had requested the 

evidence and the agency agreed that he was entitled to it. 

Sprinkle v. Shinseki, No. 10-3231, 2012 U.S. App. Vet. 

Claims LEXIS 284, at *8-10 (Vet. App. Feb. 23, 2012). 

The Veterans Court said that this case differed from 

Thurber v. Brown, 5 Vet. App. 119 (1993), because here, 

unlike in Thurber, the Regional Office issued a Supplemental Statement of the Case after the evidence at issue 

was developed. Id. at *9. Relatedly, the Veterans Court 

stated that Mr. Sprinkle “did, in fact, have the opportunity to respond after receiving notice of evidence, as he had 

a total of 120 days after the [Supplemental Statement of 

the Case] was issued to submit new evidence.” Id. at *9-

10. That statement is not about the opportunity to respond in the month after the VA furnished Mr. Sprinkle 

the medical report; it is about the opportunity to respond 

to the Supplemental Statement of the Case that partly 

described the report. Id.

The Veterans Court’s analysis is troublingly incomplete about its understanding of the “fair process” doctrine. The analysis does not say that “fair process” is 

afforded if, but only if, a Supplemental Statement of the 

Case tells the claimant everything about the evidence 

that having the evidence would disclose. The Veterans 

Court may have avoided so limiting its reasoning about 

“fair process” because such a limited characterization of 
4 JIMMY SPRINKLE v. SHINSEKI

the doctrine might not decide this case: the Board undisputedly relied on statements in the medical report that 

were not described in the Supplemental Statement of the 

Case. See In re Sprinkle, No. 5-06 785A, slip. op. at 6-7 

(B.V.A. Jun. 3, 2010); J.A. 90. Similarly, the Veterans 

Court did not limit its description of “fair process” to 

circumstances in which the evidence itself is turned over 

in sufficient time for the claimant to prepare an adequate 

response before the Board relies on the evidence in ruling 

on a claim. Critically, nowhere did the Veterans Court 

say that the month Mr. Sprinkle had after receiving the 

medical report was adequate.

The Veterans Court’s brief rationale is broad. It refers simply to the fact that the VA issued a Supplemental 

Statement of the Case after the medical report was prepared and thus gave Mr. Sprinkle “notice of evidence,” 

though not the evidence itself. Sprinkle, No. 10-3231, 

2012 U.S. App. Vet. Claims LEXIS 284, at *9-10. But I 

am not prepared to conclude that the Veterans Court 

truly adopted so weak a view of what constitutes “fair 

process.” 

For one thing, the Veterans Court did not discuss the 

obvious issues raised by such an understanding. In our 

legal system, where a tribunal relies on evidence in a way 

that is adverse to a party, it is virtually never sufficient to 

have told the party in advance that the evidence exists, or 

even to have provided a description of it; the party is 

broadly entitled, upon request, to scrutinize the evidence 

directly and not be forced to rely on the accuracy or completeness of another’s description of it. This principle is 

fundamental to notions of fair process even in the constitutional context. See, e.g., Greene v. McElroy, 360 U.S. 

474, 496 (1959); United States v. Abuhamra, 389 F.3d 

309, 322 (2d Cir. 2004); American-Arab Anti-Discrim. 

Comm., 70 F.3d 1045, 1070 (9th Cir. 1995). It is hard to 

see how it could not be fundamental in a claimantfriendly adjudicatory system like the one established for 
JIMMY SPRINKLE v. SHINSEKI 5

veterans’ benefits. Perhaps in some settings an argument 

might be made for withholding evidence from a party 

even if the tribunal relies on it. This case involves no 

such argument: the government acknowledges that Mr. 

Sprinkle was entitled to be given the evidence upon 

request. 

Uncertainty about the Veterans Court’s understanding of “fair process” is compounded by the difficulty of 

seeing how its ruling here squares with what appears to 

be the most on-point of its precedents about “fair process,”

Young v. Shinseki, 22 Vet. App. 461 (2009). There, the 

VA gave Mr. Young a medical examination in November 

2004, which resulted in a medical report, but despite 

multiple requests for the report, the VA did not provide it 

to Mr. Young before the Board issued its decision in April 

2006. The Veterans Court held:

By failing to furnish the appellant a copy of the 

2004 medical examination report before the Board 

considered and relied on it in the April 2006 decision, and after the appellant’s multiple requests 

for a copy of the report, VA violated the fair process principle underlying Thurber v. Brown, 5 Vet. 

App. 119 (1993). 

Young, 22 Vet. App. at 471-72. 

The Veterans Court did not discuss Young in the present case. In particular, it did not distinguish the nonfurnishing of the report before the Board made its decision in Young from the furnishing of the report only one 

month before the Board made its decision here. The legal 

principle at issue must focus on an adequate opportunity 

to prepare a response to evidence before the tribunal 

relies on it. As noted, the Veterans Court nowhere said 

that the one-month period here was adequate for a proper 

response. 
6 JIMMY SPRINKLE v. SHINSEKI

It appears, moreover, that in Young, just as in this 

case, the VA issued a Supplemental Statement of the 

Case after creation of the medical report at issue. Young

does not say otherwise; the governing regulations required the Regional Office in Young to issue a Supplemental Statement of the Case after the medical 

examination of Mr. Young, 38 C.F.R. §§ 19.31(c), 19.38; 

and the agency is presumed to have followed its regulations, Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 

2004). When asked at oral argument, Mr. Sprinkle’s 

counsel—who also was counsel for Mr. Young—stated 

that the Regional Office in Young in fact issued a Supplemental Statement of the Case after the medical examination at issue. Oral Argument at 6:24-28. And the 

government has carefully avoided asserting the contrary, 

saying only that the opinion in Young does not address 

the question. Brief for the Appellee at 26. 

Apart from its discussion of the “fair process” doctrine, the Veterans Court included a footnote in its opinion stating that counsel for Mr. Sprinkle misdirected his 

requests for records to the Regional Office (rather than 

the Board) and did not ask the Board to postpone a decision while he awaited the medical report or prepared a 

response. Sprinkle, No. 10-3231, 2012 U.S. App. Vet. 

Claims LEXIS 284, at *4 n.1. The Veterans Court did not, 

however, rely on that footnote in its analysis of the “fair 

process” doctrine, id. at *9-10, and the footnote says only 

that “the Court is troubled by” those facts, id. at *4 n.1. 

The footnote therefore leaves unclear whether the Veterans Court’s view of “fair process” incorporates a notion 

that the claimant not only must request the evidence at 

issue but, for example, must ask for a postponement of a 

Board decision until the evidence is in hand for a period 

adequate for preparation of a response. The Veterans 

Court did not say that it was adopting such a requirement

or discuss the issues relevant to doing so, including what 

standards would fit with Young. 
JIMMY SPRINKLE v. SHINSEKI 7

In my view, the Veterans Court’s decision about “fair 

process” leaves too many questions unanswered to know 

precisely what rule of law it adopted in rejecting Mr. 

Sprinkle’s claim. Its answers to those questions, moreover, may well depend on practical considerations regarding the working of the system for adjudicating veterans’ 

claims for benefits, including how the Board would be 

likely to treat a postponement request. It is advisable for 

the Veterans Court to address those matters in the first 

instance. I would therefore vacate the decision of the 

Veterans Court and remand the case.