9.2. Reasonably Raised Issues
It is well settled that on appeal the Board has a duty to address all issues reasonably raised either by the appellant or by the contents of the record. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). In Robinson the Court determined that, because proceedings before VA are nonadversarial, "the Board's obligation to analyze claims goes beyond the arguments explicitly made." 21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). "It is entirely possible that the record might 'indicate' a theory of entitlement, but that a lay appellant might not be sophisticated enough to recognize the theory," meaning that "a theory can be both unknown to the appellant and suggested by the record." Id. (citing Ingram v. Nicholson, 21 Vet. App. 232, 25657 (2007)).
38 U.S.C. section 7104(d) also provides the Board with jurisdiction to review a wide scope of matters by requiring that the Board consider "all material issues of fact and law presented on the record." There are no qualifying terms requiring the Board to address only material issues or claims that have been previously considered by the regional office. The only significant statutory limitation on the Board's broad jurisdiction is the claimant's right to "one review on appeal" under section 7104(a).
But the Federal Circuit has indicated that this limitation is eliminated when the claimant effectively waives additional review. Specifically, in Disabled American Veterans v. Secretary of Veterans Affairs, the Federal Circuit held that section 7104(a) creates a procedural right that entitles the claimant "to appeal an adverse [agency-of-original-jurisdiction] decision to the Secretary of Veterans Affairs." 327 F.3d at 1342. The Federal Circuit has also held that the claimant may waive this right. Id. at 1341-42.
On the other hand, the Board is not required "to assume the impossible task of inventing and rejecting every conceivable argument in order to produce a valid decision." Id. Although the Board must interpret a claimant's submissions broadly, it is not required to conjure up issues that were not raised by the claimant. Brokowski v. Shinseki, 23 Vet. App. 79, 85 (2009). Accordingly, "[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory." Robinson, 557 F.3d at 1361. In other words, "[t]he Board commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record." Robinson, 21 Vet. App. at 553; but see Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court may exercise its discretion and refuse to consider arguments or issues first raised on appeal to the Court on the ground that the appellant failed to exhaust his or her administrative remedies). "The question of the precise location of the line between the issues fairly raised by the appellant's pleadings and the record and those that are not must be based on the record in the case at hand; therefore, it is an essentially factual question." Robinson, 21 Vet. App. at 553.