Hickson: Section 20.903: Can the Board reach the Merits of a Reopened Claim?

Section 20.903: Can the Board reach the Merits of a Reopened Claim?

The case of Arthur Hickson v. Eric K. Shinseki, Opinion Number 07-1311, decided March 31, 2010, affirmed denial of an acquired psychiatric disorder.

The case involved the application of 38 C.F.R. Section 20.903, which states if the Board is going to consider law not already considered in the Regional Office decision and such consideration could result in denial of the appeal, the Board has to first notify the veteran or the veteran’s representative of such intent.

Here, the veteran had submitted new and material evidence which prompted the Board to reopen the case. Rather than remanding the case for further development along the lines of a medical examination and weighing the credibility of the evidence, the Board denied the claim on the merits. The reason the Board reached the merits is that a medical opinion had already been provided and the Regional Office decision had weighed the evidence.

The veteran’s appeal was based on section 20.903, specifically the Board’s consideration of law not previously considered by the RO. The Secretary argued the regulation only applied to literally new law, as in recently passed rules and case law that wasn’t considered by the RO. The Court rejected the VA’s argument regarding new law and examined whether in fact the Board considered law not previously considered. Upon close examination, the Court determined this was not the case for various reasons. Some of these reasons include that the allegedly unconsidered laws were actually referred to by the RO, were considered in the Supplemental Statement of the Case, were sent by the veteran’s attorney and thus not subject to notice requirements, or related to requirements and powers of the Board which did not trigger the notice requirement.

The lesson behind this case might be that it is possible the Board will reopen a claim and decide on its merits even if the RO had decided against reopening the claim. So, you should prepare your case well and get all possible evidence as soon as possible.

Decision by Chief Judge Green and joined in by Judges Kasold and Davis.