Page: Adding to the RBA

Page v. McDonough, Case Number 19-0865, decided January 14, 2022 discusses an addition to the RBA. 

This case involves the Record Before the Agency, constructive possession by the Board, and the interaction with Euzebio v. McDonough (Euzebio II), 989 F.3d 1305 (Fed. Cir. 2021), vacating, remanding Euzebio v. Wilkie (Euzebio I), 31 Vet.App. 394 (2019).

The Court noted “the appellant argues that there are references in the record of proceedings (ROP) to fee-basis treatment records that had been scanned into VistA, but because VistA records are not automatically included in the claims file, those records were "not before the Board as required." As a result, the Secretary attempted to add the records to the RBA and continue the case before the Court.  The Veteran argued instead . “where the Board has actual notice of the existence of records missing from the claims file, the Board errs in not obtaining and reviewing those records, and the Court must remand for the Board to do so.”

The Court held:

“where a party in the context of a record dispute proffers for inclusion in the RBA documents that were constructively before the Board, those records should be included in the RBA.  Based on the appellant's concession that the VistA Imaging documents at issue here were constructively part of the record before the Board, the Court will grant the Secretary's motions and allow him to amend the RBA to include the January 2015 and May 2018 VistA Imaging documents.  Furthermore, because those documents are properly part of the RBA, the Court will deny the appellant's motion to strike portions of the Secretary's brief referencing those records. To the extent the appellant argues that the Court may not review these records in the first instance, those arguments pertain to the merits of the appeal and are separate considerations from what must be included in the RBA.”

This decision affirms that documents referenced by other documents should be part of the RBA and should lead a careful advocate to look for these documents.

Decision by Judges Pietsch, Meredith, and Falvey.

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