Davis: Constructive Possession by the VA

Davis v. McDonough, Case Number 20-5411, decided May 31, 2023 involves the issue of constructive possession and what is before the Board.

The case considered an untimely notice of disagreement and whether the Board erred in not considering evidence submitted by the veteran related to VA’s mailing of a May 2016 decision. 

As to the evidence, the Court began by focusing on the AMA and its allowance that a veteran who appeals to the Board and wants to submit additional evidence must do so within 90 days after the Board’s receipt of the VA Form 10182 (NOD).  The question on appeal was what constituted “receipt” so as to trigger the 90 days.

After filing the NOD, the Board sent a letter stating he had 90 days from the date of the Bar’s receipt of his NOD to submit new evidence.  He responded with a letter noting the VA’s letter and requested the Board postpone any decision for the full 90 days beginning with the VA’s letter acknowledging receipt.  Within 90 days of he VA’s initial letter, but not within 90 days of the date the NOD was sent, counsel submitted a brief along with supporting evidence.

The Board “found that the 90-day window to submit evidence began upon receipt of Mr. Davis's VA Form 10182 NOD on August 14, 2019—not when the Board mailed its September 9, 2019, acknowledgement that it had received his VA Form 10182 NOD. Because the Board found that Mr. Davis's December 5, 2019, evidence submission fell outside the 90-day window (which, according to the Board, ended on November 12, 2019), it concluded that it was unable to consider that evidence.”  Id. at *4. 

The veteran argued to the Court there was a distinction between filing a document and VA’s receipt of a document.  Specifically, “relying on Black's Law Dictionary definitions, Mr. Davis notes that, as applied to NODs, "file" refers to the delivering of the NOD whereas "receipt" means the act of taking possession over the NOD. Appellant's Br. at 7-8; see File, BLACK'S LAW DICTIONARY (11th ed. 2019) ("To deliver a legal document to the court clerk or record custodian for placement into the official record."); Receive, BLACK'S LAW DICTIONARY ("To take (something offered, given, sent, etc.); to come into possession of or get from some outside source."). Using these definitions, he argues that the two words are not synonymous and that Congress acted intentionally in section 7113(c) when it used the Board's "receipt" as the event triggering the 90-day evidence submission window.  To that end, he argues that the Board received his VA Form 10182 NOD on September 9, 2019, the date the EIC uploaded the form to his claims file and the Board acknowledged receipt of the NOD, as opposed to August 14, 2019, the date he faxed it.”  Id. at *6.

The Court explained: “even accepting the argument that "file" and "receipt" refer to  discreet actions, Mr. Davis fails to demonstrate why such a distinction is significant in his case. In other words, although he argues that the dates of filing and receipt are not necessarily the same, he fails to explain how the two dates are different in his case.”  Id. at *6. 

The Court also grappled with the veteran’s argument of constructive possession.  Here, he argued some of the documents pertinent to the timeliness issue were constructively before the Board, specifically a GAO report regarding mailing; two letters from counsel in other cases complaining of not receiving mail; and affidavits cited by the Veteran’s Court in Romero v. Tran, 33 Vet. App, 252 (2021). 

The Court began by saying for constructive possession to occur, (1) the evidence must pre-date the Board decision; (2) the evidence must be within the Secretary’s control (meaning actual or constructive knowledge); and (3) the evidence must be relevant and reasonably connected to the veteran’s claim.  Id. at *9.  The Court also noted the Federal Circuit had rejected a direct relationship test (ie the evidence must bear a direct relationship to the specific veteran for the VA to have constructive possession of it in an individual’s case). 

As to the GAO report, the Court found it was too tenuous of a connection to the timeliness issue for the Board’s to have constructive possession.  As to the letters from the attorney the Court stated letters sent to VA administrators as opposed to adjudicators would not be expected to associated with the veteran’s file.  Id. at *11.  As to the affidavits previously relied upon by the Court in a published decision, the Court determined Romero was decided prior to the Board decision.

Judge Falvey discussed constructive possession more in a concurrence and explained to his thinking:

“The bottom line is, constructive possession is not a "get-out-of-submitting-evidence" card. Instead, it is a tool to make sure that relevant evidence—evidence that tends to prove or disprove a material fact—is included in the record when it can be reasonably expected that VA would have "investigated, gathered, and considered" that evidence. Bowey v. West, 11 Vet.App. 106, 109 (1998).

To this end, the inquiry can include several considerations. Why was the document created? How did VA get it? Is the document so widely known that we can presume VA adjudicators are aware or should be aware of it? If VA knows about the document, is the document relevant to how VA adjudicates claims? Is this the kind of document we would have expected VA to seek out under an applicable duty to assist if the veteran mentioned it to VA? Would we expect VA to address this kind of evidence if it was in the file? This is by no means an exhaustive list. But if the answer to most of these or similar question is "no", then odds are pretty good that the document was not constructively before VA.

Thus, a widely cited report established by Congress to address the relationship between herbicides and service comes in when the claim involves questions about whether herbicides caused the veteran's disability. But anecdotes about nonreceipt of mail from advocates submitted in other cases or sent to VA leadership are out; they are not things we would expect VA adjudicators to be aware of or to investigate and consider in individual cases. The same is true of a GAO report obtained to address the efficiency of VA's mailing practices and not dealing with whether VA fails to send claim documents to claimants, it is simply not relevant. In fact, even if the report had actually been in the record, I would not fault the Board for not addressing it; the report does not deal with whether VA failed to send claim documents to veterans—the issue Mr. Davis cares about. "[T]he Board does not have to discuss all the evidence, but it must discuss the relevant evidence."”

Id. at *17-18.

While I believe ultimately the filing versus receipt distinction is unlikely to win, I believe the Court’s explanation as to constructive possession is too narrow.  I expect this decision to be appealed and am hopefully the Federal Circuit realizes that a letter sent to the VA administrators is also constructively before everyone at the VA.

Decision by Chief Judge Barltey and joined by Judges Falvey and Laurer. 

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