Cook: What Evidence is Considered by the Board

Cook v. McDonough, Case Number 20-6853, decided May 17, 2023 involves what evidence the Board should consider on appeal  Specifically, the case involved evidence submitted after an RO decision, but before the NOD was submitted. 

The veteran argued 38 USC 7113(c)(2)(A) plainly and unambiguously provides that the Board must consider all evidence associated with the VA claims file when the NOD is filed.  The Court noted the veteran is asking it to interpret the phrase “evidence submitted with the NOD” as including all evidence in the VA claims file when the NOD is filed.  The Court rejected such an interpretation.  Essentially it argued the plain meaning of the statute does not support such an interpretation.

The veteran also argued that the Board decision did not provide a general statement complying with Section 7104(d)(2).  Essentially, he argued he Board incorrectly stated that the evidence it did not consider was received after the 90th day following the NOD, and that the Board failed to inform the veteran that it did not consider evidence received before the NOD.

Next, the Court explained

“Congress understood that for the Board's reasons or bases to be adequate, the Board must "account for the evidence which it finds to be persuasive or unpersuasive" and its decision "must contain clear analysis and succinct but complete explanations." Id. at 57. Thus, to render an adequate statement of reasons or bases, the Board must consider evidence and explain its weighing of the probative value of evidence. By comparison, subsection 7104(d)(2)(A) requires something different: a general statement "reflecting whether evidence was not considered in making the decision because the evidence was

received at a time when not permitted under [38 U.S.C. § 7113]." 38 U.S.C. § 7104(d)(2)(A). Thus, to provide a general statement, the Board must consider whether any evidence in the record in the proceeding falls outside the "evidentiary record before the Board" under section 7113. Unlike subsection 7104(d)(1), no language in subsection 7104(d)(2) suggests that the Board must actually consider any evidence or explain the probative value of any evidence.”

Id. at *12-13.

It then explained:

“For a claimant to make an informed decision on whether and how to have VA consider any evidence not considered by the Board, the Board must accurately inform the claimant whether it did not consider evidence because it was received during a time not permitted by section 7113, and what options may be available for having VA consider that evidence. Congress obviously intended to require the Board to include, in its decision, a general statement that accurately informs the claimant of that information, because a general statement inaccurately informing the claimant of that information would render subsection 7104(d)(2) ineffective.”

Id. at *13-14.

As to this case, “[t]he parties do not dispute that the Board did not consider evidence submitted during the time period between the AOJ decision and the NOD, and Board erred because it provided, in its decision, a misleadingly inaccurate general statement informing Mr. Cook that it did not consider only evidence received after the 90 days following NOD.  We also conclude that the Board's error prejudiced Mr. Cook.”

Id. at *15.

Judge Jaquith wrote a concurrence outlining notice deficiencies in the entire process.  He wrote:

“Notice and a meaningful opportunity to respond are key requirements of due process and the fair process principles at the heart of our system. The notice the AOJ and the Board provided here was inadequate, first giving the veteran no reason to think that the early evidence he submitted in response to the AOJ's notice would not be considered unless it was resubmitted and then giving him an inaccurate and misleading general statement regarding the evidence the Board had not considered. VA's handling of this case did not measure up to the expectation of Congress.”

Id. at *21.

This decision illustrates the insanity of a system that allows the Board to ignore evidence because it was not submitted WITH the NOD and was instead submitted prior to the NOD.  This is a major failing of the new legislation that only injects more delay into a VA process already filled with delay.

Decision by Judge Pietsch and Laurer with concurrence by Judge Jaquith. 

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