## Facts

- Robert M. Euzebio, a Vietnam veteran exposed to Agent Orange, sought service connection for a thyroid condition.
- The Board of Veterans’ Appeals denied the claim, finding no competent evidence of a nexus to service or herbicide exposure and declining to obtain a VA medical examination or nexus opinion.
- While the Board appeal was pending, the National Academies of Sciences, Engineering, and Medicine issued *Veterans and Agent Orange: Update 2014*, prepared pursuant to a congressional mandate and addressing potential relationships between herbicide exposure and thyroid conditions.
- The Court of Appeals for Veterans Claims affirmed, holding the NAS report was not constructively before the Board and finding no prejudicial error in the denial of a medical examination.
- Euzebio appealed to the Federal Circuit, challenging the legal standard used for constructive possession and the resulting duty-to-assist analysis.

## Issues

1. Whether the Veterans Court applied an incorrect legal standard in holding the NAS *Update 2014* report was not constructively before the Board.
2. Whether, considering the NAS report’s relevance, the Veterans Court erred in its prejudicial-error and duty-to-assist analysis regarding the Board’s refusal to provide a medical examination or nexus opinion under 38 U.S.C. § 5103A(d).

## Decision

- The Federal Circuit vacated the Veterans Court’s judgment and remanded.
- The court held the Veterans Court used an erroneous “direct relationship” requirement for constructive possession.
- The court held the proper inquiry is whether the material is within the Secretary’s control and is relevant and reasonably connected to the claim, making the NAS report constructively part of the Board record here.
- The court held the Veterans Court’s prejudice and duty-to-assist analysis could not stand because it failed to account for the NAS report’s constructive inclusion and potential effect on whether an examination was required.

## Legal Principles

- The Board record includes evidence in the Secretary’s control that is constructively before the Board when it is reasonably expected to be part of the record, assessed by relevance and reasonable connection to the claim, not by a claim-specific “direct relationship.”
- Population-level scientific materials can be constructively before the Board when they are generated for or used by VA in adjudicating the class of claims at issue and bear a reasonable connection to the veteran’s asserted theory of entitlement.
- Under 38 U.S.C. § 5103A(d), the “may be associated” element for triggering a VA medical examination is a low threshold and may be satisfied by evidence that indicates a possible association, including evidence reflected in constructively possessed scientific reports.
- When a Veterans Court prejudice analysis depends on an incorrect record-scope determination (constructive possession), vacatur and remand are required for reconsideration under the correct standard.

## Conclusion

The Federal Circuit required VA adjudicators to treat relevant, reasonably connected NAS Agent Orange reports as constructively before the Board and sent the case back for reconsideration of prejudice and whether the duty to assist required a medical examination or nexus opinion in light of that evidence.


Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021)