Bozeman concerned a veteran’s claim for an earlier effective date for a PTSD award. After the Board again denied an earlier effective date on remand, the veteran appealed to the Veterans Court and argued that the Board failed to address relevant evidence already contained in the record, including a 2005 examination report suggesting his substance abuse may have been a way of coping with PTSD. The Veterans Court invoked issue exhaustion and declined to consider that contention, reasoning that the argument had not been raised earlier and the VA’s institutional interests outweighed the veteran’s interest in review.

The Federal Circuit vacated. It explained that issue exhaustion is discretionary under Maggitt and may be applied in appropriate circumstances, but the Veterans Court expanded the doctrine too far here. Because Bozeman had already preserved the underlying claim for an earlier effective date, his citation to additional record evidence supporting that claim was not a new legal argument. The court emphasized that pointing to evidence already in the record to support a preserved theory does not, by itself, trigger issue exhaustion. The court therefore remanded for further proceedings, while noting it was not deciding whether the Board actually failed to consider the evidence in question.

When a claimant has preserved a legal claim, citing additional evidence already in the record to support that same claim is not a new legal argument for purposes of issue exhaustion.

Issue exhaustion cannot be used to bar an appellant from relying on record evidence that supports an already preserved theory of entitlement.

This is a useful limitation on forfeiture arguments in Veterans Court practice. It helps preserve appellate review when the dispute is over whether the Board overlooked evidence, rather than whether the veteran advanced a wholly new theory for the first time on appeal.

Improper Interpretation of Regulation [Regulatory Interpretation Error]

A veteran appeals a Board denial of an earlier effective date and, on judicial review, cites an exam report in the existing record that the Board overlooked. Under Bozeman, the court should not automatically treat that citation as a new argument forfeited by issue exhaustion.

Use Bozeman to oppose issue-exhaustion objections when the appeal is grounded in evidence already before the agency and the underlying theory was preserved below. It is especially helpful after a remand where the Board was directed to reassess the record broadly.

Maggitt v. West, Scott v. McDonald