context: As a result, the majority finds no reason to remand this ease for the Board to conduct any further development or adjudication of the appellant's claim, which, in fact, imposes the issue exhaustion requirement that Sims prohibits. With the understanding that Sims precludes such a result regardless of the appellant's failure to raise this argument below, I believe that the Court should exercise its discretion to remand this matter to the Agency for proper adjudication of the direct service connection theory in the first instance.
citation_a.signal: see also
citation_a.identifier: 212 F.3d 1255, 1263
citation_a.parenthetical: stating that "appellate tribunals are not appropriate fora for initial fact finding"
citation_a.sentence: See Maggitt, 202 F.3d at 1378-79 (allowing this Court to hear an argument raised before it in the first instance, assuming.the Court has jurisdiction over the claim, or remand the matter to the Board for adjudication in the first instance); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”); Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed.Cir.1996) (stating that this Court “is not a trier of fact and is not in a position to make ... factual determination[s]”); see also 38 U.S.C. § 7261(c). I also note that it should not matter what Mr. Robinson wrote on his Substantive Appeal, as both the statute and regulation governing the content of a Substantive Appeal use only hortatory language in'telling claimants what to include.
citation_b.signal: see
citation_b.identifier: 202 F.3d 1378, 1378-79
citation_b.parenthetical: allowing this Court to hear an argument raised before it in the first instance, assuming.the Court has jurisdiction over the claim, or remand the matter to the Board for adjudication in the first instance
citation_b.sentence: See Maggitt, 202 F.3d at 1378-79 (allowing this Court to hear an argument raised before it in the first instance, assuming.the Court has jurisdiction over the claim, or remand the matter to the Board for adjudication in the first instance); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed.Cir.2000) (stating that “appellate tribunals are not appropriate fora for initial fact finding”); Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed.Cir.1996) (stating that this Court “is not a trier of fact and is not in a position to make ... factual determination[s]”); see also 38 U.S.C. § 7261(c). I also note that it should not matter what Mr. Robinson wrote on his Substantive Appeal, as both the statute and regulation governing the content of a Substantive Appeal use only hortatory language in'telling claimants what to include.