Varad v. McDonough, Case Number 2021-4616, decided March 15, 2024 concerns the doctrine of constructive possession and represents an application of the Federal Circuit’s recent case in Conyers v. McDonough, 91 F.4th 1167 (Fed. Cir. 2024).
The facts involved whether a child of a deceased veteran should receive DIC as she alleged she was permanently incapable of self support prior to turning 18 years old. However, the facts are less important than the procedure. Here, the pro se litigant had already appealed to the Court and received a remand. The Board again denied her claim, but the question before the Court now was whether a private medical record that the litigant had submitted to the Court in the first appeal was constructively before the Board following the Court remand.
After remand from the first Court appeal, the VA told the litigant that copies of the Court’s remand order and other pertinent pleadings and filing with the Court would be associated with her file for review and consideration. The Board then made a decision that did not mention April 2019 or January 2021 medical records that had been filed with the Court during her first appeal.
She filed a motion for reconsideration and included the report. The motion was denied by the Board because the report while new did not warrant reconsideration.
She also appealed the Board decision requesting suspension of secretarial acton or voiding the December 2020 decision and denial of motion for reconsideration for the failure to comply with the Court’s decision. She argued the Board erred because it ignored the April 2019 and January 2021 medical evidence.
The Court then shifted the concept of constructive possession and noted: “The constructive possession doctrine provides a safeguard that ensures all record documents reasonably expected to be part of a veteran's claim are included in the administrative record." Conyers v. McDonough, 91 F.4th 1167, 1171 (Fed. Cir. 2024) (citing Euzebio, 989 F.3d at 1325- 26). "The Court assesses constructive possession as part of its role to ensure that the Board bases its decision on the evidence properly within the administrative record and, thus, that its decision is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Id. at *6.
The elements of constructive possession are that the evidence must pre-date the date of the Board decision; the evidence must be within the Secretary’s control; and the evidence must be relevant and reasonably connected to the claim. Id. at *6.
The question centered around whether the April 2019 medical record was within the Secretary’s control. The question was whether filing with the Court met the requirement. The Court found “so long as the claimant's intent is clear with respect to a particular filing, the precise location within VA does not matter. As noted above, under the Court's E-Rules, the Secretary was provided notice and a copy of the August 2019 evidence. And it was clear from that evidence that Ms. Varad's intent was to have that evidence considered as demonstrating her entitlement to DIC benefits. Therefore, the Court concludes that the April 2019 evidence, a copy of which was served on VAOGC, was within the Secretary's control, satisfying the second element of constructive possession.” Id. at *12.
This decision is an interesting explication of recent case law and helps to clarify the doctrine of constructive possession while specifically explaining that materials filed with the Court are within the control of the Secretary.
Decision by Chief Judge Bartley and joined in by Judges Greenberg and Jaquith.
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