Costello: Certification to the Board Notice is Not Defective

Costello v. McDonough, Case Number 20-2314, decided February 23, 2023 involved whether a notice stating an appeal had been certified to the Board and the veteran had 90 days or the date of decision to submit new evidence or argument was unconstitutional.

The veteran’s claim was appealed to the Board and resulted in a notice stating the veteran had had 90 days or until the Board issued a decision, whichever came first, to submit additional argument or evidence, or to request a change in representation.  29 days after the letter, the Board made a decision denying the issues sought.  The Board noted the appeal had been advanced on the docket in light of the veteran’s advanced age.

The veteran argued that the section allowing for the letter, Section 20.305(a), was facially invalid as it denied the claimant due process of law.  Specifically, “the language "or up to and including the date the appellate decision is promulgated by the Board, whichever comes first" is facially invalid and violates the Due Process Clause of the U.S. Constitution because it offers only illusory notice that is fundamentally unfair and does not afford claimants before the Board the right to be heard in a meaningful manner. Therefore, he appears to argue that all claimants are denied procedural due process when the Board issues a decision less than 90 days after certification.”  Id. at *3. 

The Court confined its analysis to procedural due rights and not substantive due rights as that was what was argued by the veteran.  The Court conceded potentially a veteran could be deprived his due rights if the Board promulgated a decision on the same day the certification notice was sent, then such an action, absent waiver, could potentially deprive a claimant notice and opportunity to be heard by the Board.  Id. at *11.  The Court also noted the veteran “does not allege that the Board's notice letter was misleading or that he did not receive it before the Board adjudicated his claims.”  Id. at *13.  The Court also noted “Nor did the appellant file a motion to vacate the Board's decision under § 20.1000(a) alleging that he was deprived of due process. Instead, the appellant consistently argues only that § 20.1305 is facially invalid.”  Id. at *14.

Ultimately, the Court determined “The appellant does not clear the high bar to show that § 20.1305(a) facially deprives a legacy claimant of the claimant's constitutional right to notice and the opportunity to respond if the claimant's appeal is decided less than 90 days after notice that it is initially certified to the Board.”  Id. at *16.

This case serves to remind veterans and advocates that the 90 day notice letter should not serve as the time to start writing a memorandum.  In most cases, I submit my brief and any additional evidence at the same time I submit a NOD or Form 9 so as to avoid this problem.

Decision by Judge Pietsch and joined in by judges Meredith and Laurer.

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