Edwards: How the AMA Complicated Board Hearings

Edwards v. McDonough, Case Number 20-7244, decided March 20, 2023 involved a NOD where the veteran elected direct review, but attached evidence to the form.  The Court determined the Board should have clarified which review docket the veteran intended to choose and thus the Court set aside the decision and required readjudication.

The veteran submitted a NOD marked direct review, but submitted a statement with the NOD detailing the auto accident which led to his neck injury.  The Board issued a decision stating it was limiting its review to the evidence considered by the RO, but also included the veteran’s statement in the list of evidence it considered.

The veteran argued the NOD and statements liberally read together created a reasonable uncertainty as to what Board review option he intended to elect, which required the Board to ask to clarify pursuant to 38 CFR Section 20.202(f).  The Secretary argued the NOD was clear on its face.

The Court agreed:

“with Mr. Edwards that, when read together, his VA Form 10182 docket election and its attached statement were unclear—if not wholly contradictory—concerning the docket choice that Mr. Edwards intended, and the Board was required to clarify his intent. Mr.

Edwards elected the direct review docket, with the printed restriction that the veteran  agrees that he "will not submit any additional evidence in support of [his] appeal." Simultaneously, Mr. Edwards attached a statement to his form that provided new  information regarding the circumstances of his in-service accident, his symptoms, and the medical care he sought and received to treat those symptoms. Despite the Secretary's protestations to the contrary, it is simply not possible to reconcile Mr. Edwards's submission of this new evidence with his chosen election. Indeed, it is perfectly clear to the Court that Mr. Edwards's scenario gave rise to the exact type of confusion or uncertainty suggested in the regulation's title.”

Id. at *7.

It further explained:

“To be clear, we do not speculate as to whether other scenarios might implicate § 20.202(f) and VA's obligation to clarify a claimant's NOD docket election. Accordingly, we do not address the situation where the veteran submits additional statements or evidence after submitting the VA Form 10182, a scenario referenced by the Secretary at oral argument. We need not address these questions because here Mr. Edwards's VA Form 10182 and attached statement were part of the same submission and were explicitly intended to be contemplated together, and his attached statement created uncertainty as to which Board review docket he intended to elect. We conclude only that the § 20.202(f) duty to clarify the veteran's intent attached in this case because the VA Form 10182 submission as a whole, consisting of the form itself and the attached statement, raised uncertainty that the Board did not acknowledge or attempt to resolve consistent with VA

regulation.”

Id. at *9.

            The Secretary argued that any error was harmless.  The Court rejected such argument saying

“Contrary to the Secretary's argument that Mr. Edwards received the benefit of the evidence submission lane, it is clear that the Board failed to account for Mr. Edwards's new evidence in its analysis, including his statement that he sought neck and back treatment with a chiropractor and that he had seen the chiropractor "over 100 times throughout the years."  

 

Although the Board is presumed to have considered all evidence of record when making its decision, Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007), that presumption does not relieve the Board of its independent obligation to address potentially favorable, material evidence of record and to provide reasons or bases for its weighing of that evidence , Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Because Mr. Edwards's statement attached to his VA Form 10182 provided, among other things, additional detailregarding treatment sought for his neck disability and potential continuity of symptoms since service, it was potentially favorable, material evidence that the Board was required to address.”

Id. at *11.

This case serves to show the complicated nature of the AMA and demonstrates a commitment by the Veteran’s Court to look at it through the prism of assisting the veteran.

Decision by Chief Judge Bartley and joined in by Judges Toth and Laurer.

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