Aviles-Rivera: Hypertension and NAS Update

Aviles-Rivera v. McDonough, Case Number 19-5969, decided May 2, 2022 discusses the a claim for hypertension and how it is impacted by the National Academy of Sciences (NAS) Veterans and Agent Orange Updates (NAS Update).

The NAS Update was published after the veteran’s election in the AMA and after the RO’s higher level review decision, but before the Board issued its decision.  The Court found “the evidentiary record restriction in 38 U.S.C. § 7113(a) barred the Board from considering the 11th NAS Update. Therefore, we conclude that the veteran's assertions of Board error, which are all predicated on the Board considering the 11th NAS Update, must fail.”

The veteran argued the Board erred by failing to consider the 2018 NAS Update and by relying on the October 2017 VA medical opinion that he asserts is inadequate in light of the 2018 NAS Update.  He made several arguments including that a prior Board remand expanded the scope and timeline for adding documents; the NAS Updates are not evidence as contemplated by the restriction on new evidence; the Board’s jurisdictional statute is broader and mandates the Board consider all evidence and material of record; and failure to consider the 2018 NAS Update is unreasonable and unfair and unjust process. 

The Court found the update post-dated entry RAMP election and the HLR decision, so it was not part of the record for the Board to consider.  As to the argument a remand order referenced NAS Updates and this one was constructively before the VA, the Court found that 2018 NAS Update did not exist at the time the remand was made, so the Board remand could not  have considered it. 

As to the argument that NAS Updates are foundational authoritative documents mandated by Congress and outside evidentiary restrictions, the Court determined they were simply evidence and are not binding authority on the VA and thus fall within the evidence restricted by Section 7113(a).    

This is a hard result.  To deny reference to a NAS Update seems to reduce them to simple commonplace evidence whereas they are Congressionally mandated.  It will be interesting to see if the case is appealed and what the Federal Circuit does with this case.

Decision by Chief Judge Bartley and joined by Judges Toth and Falvey.

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