UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 17-1428

JESUS G. ATILANO, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided November 3, 2022)

Sean A. Ravin, of Coral Gables, Florida, was on the brief for the appellant.

Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief Counsel; Selket N. Cottle, 

Deputy Chief Counsel; and Mark D. Vichich, all of Washington, D.C., were on the brief for the 

appellee.

Michael D. Kummer, Renee A. Burbank, and Byron M. Moore, of Washington, D.C., and 

Alexandra M. Gonsman, of San Francisco, California, were on the brief for the National Veterans 

Legal Services Program as amicus curiae.

Before PIETSCH, MEREDITH, and TOTH, Judges.

PER CURIAM. TOTH, Judge, filed a concurring opinion. 

PER CURIAM: When Army veteran Jesus G. Atilano failed to attend the hearing he 

requested before the Board of Veterans' Appeals, the Board member—concluding that the 

veteran's attendance was required for him to exercise the hearing right—declined to hold the 

hearing in which the veteran's counsel would elicit testimony from an expert witness on issues 

related to PTSD and a TDIU rating. We interpreted 38 U.S.C. § 7107 as requiring an appellant 

requesting a hearing to attend that hearing either in person or remotely via electronic means. 

Atilano v. Wilkie (Atilano I), 31 Vet.App. 272, 279-81 (2019). Alternatively, we held that, even if 

section 7107 were ambiguous, VA regulations that mandated attendance by claimants constituted

a reasonable construction of the statute. Id. at 282-83.

The Federal Circuit vacated this Court's judgment but held only that section 7107 did not 

unambiguously mandate an appellant's attendance for his legal representative to elicit sworn 

testimony from witnesses before the Board. Atilano v. McDonough (Atilano II), 12 F.4th 1375, 
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1381-82 (Fed. Cir. 2021). Despite the purely legal nature of the case, the Federal Circuit did not 

explicitly resolve the matter and instead remanded it for us to reconsider the issue—this time in 

accordance with some specific guidance. At our invitation, the parties submitted supplemental 

briefing, and we thank them for that. Considering not only the letter but the spirit of the Federal 

Circuit's opinion, however, we conclude that we have no practical option but to rule in favor of the

veteran and to remand this matter to the Board for further proceedings.

I. ANALYSIS

When readjudicating a remanded case, a lower court is foreclosed from reconsidering 

"issues implicitly or explicitly decided on appeal" by a higher court. TecSec, Inc. v. IBM, 731 F.3d 

1336, 1341-42 (Fed. Cir. 2013). Known as the "mandate rule," id. at 1342, this serves as a corollary 

to a broader principle known as the "law of the case doctrine," which establishes that, once a court 

decides an issue, the same issue may not be relitigated in subsequent proceedings in the same case. 

See Arizona v. California, 460 U.S. 605, 618 (1983). And as relevant here, the mandate rule 

establishes that, when interpreting the Federal Circuit's decision, "'both the letter and the spirit of 

the mandate must be considered.'" TecSec, Inc., 731 F.3d at 1342 (emphasis added) (quoting Engel 

Indus., Inc. v. Lockformer Co., 166 F.3d 1379, 1383 (Fed. Cir. 1999)). The Federal Circuit has 

consistently returned to this last point over the years. See, e.g., Omega Patents, LLC v. CalAmp 

Corp., 13 F.4th 1361, 1374 (Fed. Cir. 2021); Banks v. United States, 741 F.3d 1268, 1279 (Fed. 

Cir. 2014). To that end, we assess the scope of our duty on remand "not simply from the language 

of the judgment, but from the judgment in combination with the accompanying opinion." Exxon 

Chem. Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475, 1483 (Fed. Cir. 1998).

The legal question in this case, as framed by the Federal Circuit, is whether section 7107 

"requires that an appellant exercising the right to a Board hearing personally participate in that 

hearing." Atilano II, 12 F.4th at 1377. The first time we considered it, we were persuaded that the 

text, structure, and purpose of section 7107 showed that Congress envisioned personal

participation by the claimant. Atilano I, 31 Vet.App. at 279-81. The Federal Circuit "reject[ed] that 

ruling." Atilano II, 12 F.4th at 1380. It held that the statute "does not unambiguously establish that 

a veteran must be present at his hearing to present expert testimony."1Id. Ostensibly, the Federal 

1 The applicable version of section 7107(b) provided: "The Board shall decide any appeal only after affording 

the appellant an opportunity for a hearing." 38 U.S.C. § 7107(b) (2012 Supp. IV 2017).
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Circuit concluded only that the statute was "at best silent" on the question. Id. But its analysis went 

further to signal clearly that the text, structure, and purpose all supported Mr. Atilano's right to a 

hearing without attending it. To that end, it reasoned that "nothing in this statutory language [of 

section 7107(b)] demands the appellant's presence when the appellant is represented by an agent 

or counsel." Id. Rather, in "ordinary legal usage," the meaning of the word "hearing" does not 

"require[ ] a party to be present." Id. 

The Federal Circuit also ascribed very different significance to surrounding statutory 

provisions that we thought buttressed the presence requirement in section 7107(b)'s text. See 

Atilano I, 31 Vet.App. at 279-80 (discussing 38 U.S.C. § 7107(d)(1)(A)(ii), (e)(2)). Contra our 

reading, it said that these provisions "more reasonably read as distinguishing between what the 

statute refers to as a personal Board hearing and a virtual Board hearing." Atilano II, 12 F.4th at 

1380. Still further, the "overall statutory structure of Title 38," the Federal Circuit continued, 

"supports Mr. Atilano's view that a veteran may be represented by an agent or counsel, who may 

request a hearing to present non-party witness testimony under § 7107." Id. at 1381. Under this 

rationale, "it would seem inappropriate to construe § 7107 to deny hearings for those represented 

veterans unable to attend in person without clear statutory language instructing as such." Id.

(emphasis added). And finally, with respect to the congressional purpose behind the right to a 

hearing—which, we noted, emphasized the opportunity of the claimant to speak with the Board 

member face to face—the Federal Circuit read the legislative history "as fairly supporting Mr. 

Atilano's interpretation of the statute to allow a veteran's representative to participate on the 

claimant's behalf by presenting witness testimony at a Board hearing even if the veteran is too 

disabled to attend." Id.

However, after this analysis, the Federal Circuit held only that "the language of § 7107 

does not unambiguously require a veteran to be present at his hearing for his legal representative 

to elicit sworn testimony from witnesses before the Board." Id. at 1381-82. The court remanded 

the case to us to reconsider the question of deference to VA's regulatory interpretation. Id. at 1382.

That reconsideration was to occur within specific parameters, however. Per the Federal 

Circuit, the Secretary "concede[d]" at oral argument "that 38 C.F.R. § 20.700(b) does not require 

the appellant to personally appear, but rather . . . merely contemplates the person appearing for the 

hearing"—"something less" than "demand[ing] the veteran's attendance." Id. at 1379, 1382
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(emphasis added).

2 Perhaps, the court suggested, Chevron deference was not warranted at all if 

§ 20.700(b) did not purport to interpret section 7107(b), a contention the Secretary "ha[d] not 

argued" in that court. Id. at 1382. And, finally, the Federal Circuit cautioned that any regulation 

could not be an "unreasonable resolution of [statutory] language that is ambiguous," indicating 

that "[t]he effect on veterans so disabled that they cannot be present in person seems relevant to 

. . . the reasonableness issue." Id.

These are the circumstances in which we readjudicate this case. One can take different 

positions—as the parties do in supplemental briefing—on whether Atilano II leaves any room at 

all for the Secretary's arguments about the permissibility of VA's regulation. It may be that the 

letter of the Federal Circuit's mandate permits us to reaffirm our alternative holding that the 

Secretary, in light of the statute's silence on the matter, promulgated a reasonable regulation 

requiring a veteran's personal presence (actual or virtual) at a Board hearing. What is absolutely 

clear, however, is that the spirit of that court's mandate, conveyed plainly by the scope and tone of 

its opinion, is unequivocal about which arguments ought to prevail.

In Atilano I, we held the Secretary's regulatory requirement that a claimant attend a Board 

hearing to be a reasonable interpretation that was consistent with the statutory scheme. Four related

considerations persuaded us: (1) Congress gave the Secretary specific authority to promulgate

rules for Board hearings; (2) the (at best) silence of section 7107 on the question of claimants'

attendance permitted the Secretary to resolve the issue with a reasonable regulation;

(3) § 20.700(b)'s requirement of claimants' attendance "harmonize[d] with what the Court has 

always understood to be the primary purpose[] of the hearing right"; and (4) VA, like all agencies, 

has the freedom within the confines set by Congress to fashion its own procedural rules. Atilano I, 

31 Vet.App. at 281-84.

There is no way to read the Federal Circuit's analysis as anything other than a wholesale 

repudiation of our reasoning. The opinion makes perfectly clear that the Federal Circuit regarded 

2

In 2017, § 20.700(b) read in full: 

The purpose of a hearing is to receive argument and testimony relevant and material to the appellate 

issue. It is contemplated that the appellant and witnesses, if any, will be present. A hearing will not 

normally be scheduled solely for the purpose of receiving argument by a representative. Such 

argument should be submitted in the form of a written brief. Oral argument may also be submitted 

on audio cassette for transcription for the record in accordance with paragraph (d) of this section. 

Requests for appearances by representatives alone to personally present argument to Members of 

the Board may be granted if good cause is shown. Whether good cause has been shown will be 

determined by the presiding Member assigned to conduct the hearing.
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the relevant statutory text, structure, and purpose as individually and collectively "supporting" Mr. 

Atilano's position that a claimant too disabled to attend may still invoke the right to a Board 

hearing. Atilano II, 12 F.4th at 1381. Given this premise, how could any contrary regulation of the 

Secretary be a reasonable construction of the statute? See id. ("[I]t would seem inappropriate to 

construe § 7107 to deny hearings for those represented veterans unable to attend in person without 

clear statutory language instructing as such."). 

Indeed, the Federal Circuit understood the Secretary to concede that § 20.700(b) could not 

be read as requiring a claimant's attendance at a hearing. Id. at 1379, 1382. The Secretary now 

suggests that the Federal Circuit wrongly interpreted his statements at argument as a retreat from 

his briefing position. Regardless of whether there was a concession, it is apparent that the Federal 

Circuit read § 20.700(b) and did not think it clearly imposed an attendance requirement. (Nor do 

we think the few other regulatory provisions cited by the Secretary bring the clarity that 

§ 20.700(b) does not.3) 

Notwithstanding the clear import of the Federal Circuit's view of the statutory text and the 

Secretary's regulation, the court stopped short of ruling in Mr. Atilano's favor. But that does not 

alter our obligation to implement the letter and spirit of the Federal Circuit's mandate. Based on 

the Federal Circuit's opinion, we conclude that the Secretary cannot condition the right to a hearing, 

specifically, an appellant's right to elicit testimony from witnesses before the Board, on a claimant's 

attendance. As applied to Mr. Atilano, we further conclude that the Board erred when it refused to 

hold the scheduled hearing and permit Mr. Atilano's representative to present expert testimony. 

Consequently, the Board also erred by requiring Mr. Atilano to demonstrate good cause for his 

failure to appear at the scheduled hearing with his representative and the expert witness. See

38 C.F.R. § 20.702(d) (2017) (current version at 38 C.F.R. § 20.704(d)). Because we cannot 

surmise how the receipt of live—rather than written—testimony might have affected the Board's 

assessment of the expert witness's opinion, we cannot conclude that the Board's error was harmless. 

See Simmons v. Wilkie, 30 Vet.App. 267, 279 (2018), aff'd, 964 F.3d 1381 (Fed. Cir. 2020).

3 See 38 C.F.R. §§ 20.700(d), 20.702(d) (2017).
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II. CONCLUSION

The April 18, 2017, Board decision is VACATED with respect to PTSD and TDIU, and 

the matters are REMANDED for further proceedings consistent with the opinions of this Court 

and the Federal Circuit.

TOTH, Judge, concurring: The Federal Circuit's decision to remand the case for the parties 

to relitigate, two years later, the exact same legal issue is—it must be said—head-scratching. 

Indeed, it so diverges from the customary practice of federal courts that it suggests not only a basic 

disregard for what de novo review entails but also an indifference to the nature of the authority 

that higher courts exercise over lower courts. These comments are not mere sour grapes. All judges 

accept that colleagues higher up the judicial ladder have the final word on legal questions, 

including calling out errors. But try as I may, I can't understand the Federal Circuit's decision to

forgo deciding the legal question before it in favor of sending the case back to this Court with 

directions about how to interpret various provisions. Lower courts are not marionettes. Because 

the Federal Circuit's remand dictated the outcome of this case, I feel it necessary, with respect, to 

break with decorum and comment.

First, de novo review. Standards of review govern how appellate courts approach decisions 

of lower tribunals, and with very few exceptions, the Federal Circuit reviews all questions from 

this Court under the de novo standard of review. 38 U.S.C. § 7292. For the purposes of this case, 

de novo review means essentially this: rather than fixating on purported deficiencies in this Court's 

decision, the Federal Circuit should have offered its own interpretation of 38 U.S.C. § 7107, and, 

if it regarded the statute as ambiguous, assessed whether the Secretary's regulations constituted 

permissible interpretations of the provision or whether such deference was unwarranted. 

To be sure, error hunting has a place in appellate review, but it's exclusively a function of 

the applicable standard of review. Most standards of review are deferential by nature, which means 

that the reviewing court must affirm the lower court decision unless it can identify a discrete error 

in the ruling. That's why appellate decisions carried out under a deferential standard of review tend 

to focus predominantly on how the lower court (or agency) handled a matter—for example, 

whether a factual finding was clearly erroneous in light of the overall record; whether a district 

court abused its discretion in rendering an evidentiary ruling at trial; whether an agency's action 
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was a faithful exercise of delegated authority or was arbitrary and capricious; or (as relevant here) 

whether an agency's regulation constitutes a permissible interpretation of a statute. 

Due to their deferential nature, these standards require reviewing courts to adopt a critical 

posture and put the underlying ruling through its paces. De novo review is not like this, however. 

Because the appellate court owes no deference to the lower tribunal, it need not hunt for errors to 

overrule its decision. In fact, an appellate court can overrule a lower court's perfectly reasonable 

interpretation of a statute merely because it prefers a different reading as a better expression of 

congressional intent.

But the freedom de novo review offers comes with a price: hard work. The reviewing court 

has the responsibility to engage directly with the statute, regulation, or law; decide the legal 

question; and show its own reasoning. It cannot merely point out a few errors in a lower court 

opinion, send the case back for a do-over, and call it a day. Instead, the common practice among 

federal appellate courts is to expend little bandwidth assessing whether a lower court erred on a 

particular point of statutory interpretation and instead take the matter on directly and analyze it as 

if no court had ever considered the matter before. See, e.g., George v. McDonough, 142 S. Ct. 1953 

(2022); Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002).

Which brings me to the rub of the matter: appellate courts remand matters to lower courts 

when the lower tribunal has authority to perform some action the higher court cannot. So an 

appellate court can reverse a legal ruling and remand a matter for a lower tribunal to carry out 

ministerial tasks, or it can remand when there are unresolved issues and the lower tribunal 

possesses an authority (e.g., fact finding) that the higher court lacks. By contrast, when an appellate 

court has authority to resolve an issue fully, there's no basis to order a lower court to reconsider a 

ruling it has already made merely to suggest the ruling come out differently. 

The Federal Circuit's remand placed this Court on the horns of a dilemma. We could either 

suppress our independent judgment to arrive at the conclusion the Federal Circuit all but ordered 

us to adopt, or we could defy the repudiation of our previous Chevron analysis and again affirm in 

contravention of every signal the Federal Circuit sent. In other words, it proves practically 

impossible to afford deference under Chevron to the Secretary's interpretation while heeding the 

mandate of a higher court ruling rejecting that position as "inappropriate" and implying, albeit 

without holding, that deference shouldn't apply at all. 
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"Appellate decisions command compliance, not agreement." United States v. Microsoft 

Corp., 253 F.3d 34, 118 (D.C. Cir. 2001) (en banc). Our decision here complies with the letter and 

spirit of the Federal Circuit's rulings in Atilano II. But respectfully, I cannot let the unusual nature 

of the remand in this case pass without comment.