Chicco v. Derwinski — Remand required under Gilbert and Manio; possible § 351/malpractice claims must be examined

In this summary-affirmance posture, the Court reviewed a Board decision denying non-service-connected pension based on alleged unemployability from multiple joint arthritis and other disabilities. Rather than affirm, the Court concluded that the case required remand for consideration under Gilbert v. Derwinski and Manio v. Derwinski. The Court also noted that the record suggested possible outstanding claims under 38 U.S.C. § 351 or for medical malpractice, and it ordered the Board to direct the Regional Office to examine those apparent claims. The decision is limited, but it underscores that the Board must address governing appellate standards and cannot ignore reasonably raised matters apparent from the record.

A remand is warranted when the Board has not adequately considered the case under controlling appellate standards and when the record reasonably raises additional claims that must be developed.

Even in a summary affirmance context, the Court will remand if the Board’s analysis is incomplete or if the record points to separate claims that the agency should investigate.

This case is useful for arguing that the Board must address all issues reasonably raised by the record and must apply the correct appellate framework. It also supports remand when additional claims appear on the face of the record but were not developed or adjudicated.

Failure to Adjudicate Reasonably Raised Claim

A veteran appeals a pension denial, but the record also suggests a separate benefits or compensation theory that the RO never addressed. Counsel cites Chicco to argue for remand so the Board must ensure those issues are developed and considered.

Use this case to press for remand when the Board overlooked a reasonably raised claim or failed to apply controlling review standards to the record before it.

Gilbert v. Derwinski, Manio v. Derwinski