2017 Problem Summary

David J. Shulkin, M.D.,
Secretary of Veterans Affairs, Petitioner,

v.

Terence J. Kong,
Respondent.

Veteran Terence J. Kong served in the U.S. Army Air Forces from July 1943 to July 1946, including service in the Pacific Theater during and after World War II as a B-29 tail gunner. In August 1954, he filed a claim for entitlement to service connection for a left ankle disability and submitted statements from several people regarding an incident in 1946 when he twisted his ankle after his B-29 had to make an emergency landing for repairs. In 1955, the VA regional office (“RO”) awarded service connection for left ankle disability.

In February 2012, Mr. Kong was diagnosed with thyroid cancer. He submitted a claim for entitlement to service connection for thyroid cancer in March 2012, asserting that he may have been exposed to ionizing radiation from Hiroshima during the 1946 incident when he twisted his ankle. VA requested a radiation dose estimate from the Defenses Threat Reduction Agency, which responded that it found no evidence of radiation exposure. In addition, Mr. Kong underwent a VA compensation and pension examination in August 2012; the examiner stated that, although Mr. Kong’s thyroid cancer was consistent with a history of radiation exposure, there was no evidence that Mr. Kong had actually been exposed to radiation, and he therefore could not attribute Mr. Kong’s cancer to his service.

In October 2012, the RO denied the Mr. Kong’s claim. Mr. Kong filed a Notice of Disagreement in January 2013, arguing that flight logs submitted by the pilot of his B-29 in 1954 would show that the plane landed near Hiroshima. The RO issued a Statement of the Case again denying the claim in June 2013, and Mr. Kong perfected his appeal to the Board of Veterans’ Appeals (“Board”) in July 2013. Throughout his appeal before the agency, Mr. Kong argued that the flight logs would show that his plane landed near Hiroshima. He also submitted various articles critiquing the process VA used to scan paper records into electronic claims folders.

On April 19, 2016, the Board issued a decision denying Mr. Kong’s claim. The Board considered his statements concerning the existence and contents of the flight log, but it determined that the log was not part of the record. The Board found that the evidence of record did not demonstrate that Mr. Kong had been exposed to ionizing radiation in service. Accordingly, the Board concluded that Mr. Kong was not entitled to service connection for thyroid cancer, either on a direct basis or under the presumptions found in 38 C.F.R. &sec;&sec; 3.309 and 3.311.

On appeal to the U.S. Court of Appeals for Veterans Claims (“CAVC”), Mr. Kong argued that VA had lost the flight logs during the scanning of his claims folder and asked the CAVC to adopt an adverse inference rule regarding the missing record. The Secretary responded that VA was entitled to the presumption of regularity with respect to its scanning process and argued that Mr. Kong had not rebutted the presumption. In the alternative, the Secretary asserted that an adverse inference was not appropriate, as there was no evidence of intentional wrongdoing on the part of VA.

The CAVC affirmed the Board’s decision. It held that VA’s scanning procedure was entitled to a presumption of regularity, but it found that Mr. Kong had rebutted the presumption. The CAVC further held, however, that an adverse inference was not appropriate, and it found no clear error in the Board’s factual findings. One judge concurred, writing that he would not have reached the adverse inference question, as he did not believe the presumption of regularity had been rebutted.

Mr. Kong appealed the CAVC decision to the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit“). The Federal Circuit reversed the CAVC decision, holding both that VA was not entitled to the presumption of regularity with respect to its scanning of electronic claims files and that Mr. Kong was entitled to an adverse inference regarding the contents of the missing flight logs. One judge dissented in part, writing that she would remand the case for additional factfinding into the circumstances surrounding the destruction of the flight logs.

The Secretary filed a petition for a writ of certiorari to the U.S. Supreme Court, which granted certiorari on the following two questions:

  1. Is the Department of Veterans Affairs entitled to the presumption of regularity with respect to the process it uses to scan paper claims files to electronic claims files?
  2. When the Department of Veterans Affairs fails to properly scan a paper record and that paper record is no longer available, is a claimant entitled to an adverse inference as to the content of that record?

Key Dates for the 2017 Competition

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