Atilano v. McDonough — 38 U.S.C. § 7107 does not unambiguously require the appellant’s personal presence at a Board hearing

Jesus Atilano sought a higher PTSD rating and earlier effective dates, and he requested a Board hearing so that his counsel could present live testimony from a medical expert. When Mr. Atilano was unable to attend because of severe disability, the VLJ refused to hear the expert’s testimony, and the Board treated the absence as a withdrawal of the hearing request. The Veterans Court affirmed, reasoning that 38 U.S.C. § 7107 unambiguously required the appellant’s personal participation in the hearing.

The Federal Circuit rejected that interpretation. Looking to the statutory text, structure, and legislative history, the court held that § 7107 does not clearly require the claimant to be personally present for a hearing requested through counsel. The court emphasized that the statute grants the appellant an opportunity for a hearing, but does not expressly say that the appellant must attend in person. It also read the references to “personally appearing” and “personal hearing” as distinguishing in-person from virtual hearings, not imposing a personal-attendance requirement in all circumstances. Because the Veterans Court had treated the statute as unambiguous, the Federal Circuit vacated and remanded for further consideration of the regulations and related deference issues.

The opinion does not decide whether the regulations independently require attendance or whether any error was harmless. Its practical effect is to protect the hearing rights of severely disabled veterans who may be unable to appear personally but whose representatives can present testimony and argument on their behalf.

Section 7107 grants an appellant an opportunity for a Board hearing, but it does not unambiguously require the appellant’s personal presence as a prerequisite to counsel presenting witness testimony.

A veteran’s inability to attend a Board hearing does not automatically eliminate the hearing right; advocates should challenge any automatic rule that treats nonappearance as waiver when counsel is prepared to proceed.

This case is a strong citation against reading § 7107 as imposing a categorical personal-attendance requirement. It is especially useful where disability, travel barriers, or other limitations prevent the veteran from appearing, but live testimony from an expert or other witness could still materially support the appeal.

Treating a veteran’s failure to appear in person as an automatic withdrawal of the hearing request despite representation by counsel and a request to proceed with witness testimony.

A veteran in hospice care requests a Board hearing so counsel can present a psychologist’s live testimony. The Board refuses to hear the witness because the veteran cannot appear. Atilano supports the argument that § 7107 does not clearly require the veteran’s personal presence.

Use to oppose Board rulings that condition witness testimony on the appellant’s attendance and to argue for a remand where the Board relied on an overly rigid interpretation of the hearing statute or regulations.

Cook v. Snyder, Cook v. Wilkie, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.