Cowan: AMA Notice Requirements

Cowan v. McDonough, Case Number 20-6227, decided June 13, 2022 discusses notice requirements to a veteran under the AMA.

The AMA requires the VA to provide veterans or claimants notice of certain decisions by the VA and that the notice must contain certain elements including identification of favorable findings and how to obtain evidence used in making the decision.  This case concerned the form of the notice.

The veteran argued a notice letter of an RO decision and a Board notice letter all lacked statutory notice elements.  The Court submitted the case to a panel to determine: “whether, under the AMA, a notice letter sent under section 5104 must itself contain each of the statutory notice elements or whether the notice letter may be read together with its enclosures, such as a VA decision or standard VA form, to determine if notice was sufficiently conveyed to a claimant; and whether section 5104 now applies to the Board.”  Id. at *2.

The Court determined: “section 5104 is silent about the form for conveying its notice requirements and that VA reasonably filled this gap with 38 C.F.R. § 3.103(f), which provides that the notice must be in writing and may include a notice letter, enclosures, or a combination of those documents. Thus, we hold that the notice letter itself does not have to contain each of the section 5104(b) elements.”  Id.

Judge Allen wrote separately to say he believed Congress meant to enhance the notice of a decision VA provides through Section 5104 and that pre- and post-AMA notice letters are essentially the same.

Decision by Judge Falvey with concurrences by Judges Allen and Toth.

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