Williams: How Long Do You Have to Change Board Appeal Lanes?

Williams v. McDonough, Case Number 21-7363, decided June 21, 2024 involves the question of what happens when the Board decides an appeal prior to the expiration of time to change the appeal lane.

The question was whether the Board erred by deciding his case before his deadline to modify his choice of Board appeal lane under 38 C.F.R. § 20.202(c)(2). 

The veteran filed a NOD and selected the direct review docket.  The VA notified him it had received the NOD and then “[t]racking the text of § 20.202, this notice told Mr. Williams that he could not submit more evidence, but if wished to switch dockets, he could file a request within 60 days of the date that the Board received his NOD, "or within one year of the VA decision being appealed, whichever date is later," and that he could request an extension of time to submit such a "docket switch request."”  Id. at *2.

Importantly, “Despite what the letter said, VA didn't give Mr. Williams the promised time to change his NOD and switch dockets. Instead, on July 16, 2021, the Board issued the decision on appeal denying a rating higher than 10%. This was less than 60 days from when the Board received his NOD and far short of a year since the December 2020 AOJ decision.”  Id. at *2-3.

The veteran argued “that the time to switch lanes in § 20.202(c)(2) is illusory if the Board can issue a decision within 60 days of NOD submission. To make the case that the Board's error prejudiced him, Mr. Williams tells us that he would have modified his NOD (electing the submission of additional evidence lane) and submitted evidence— some of which is already in the record but post-dates the AOJ decision.”  Id. at *3.

The Court concluded: “we agree with Mr. Williams that the Board cannot issue a decision until the time to modify an NOD under § 20.202(c)(2) has run.”  Id. at *6.

The Court then considered the issue of harmless error and specifically the VA’s point that the veteran could always just submit additional evidence in a supplemental claim and explained: “In simple terms, with a supplemental claim, you can't just submit any evidence to have VA consider the merits of your claim; the evidence has to be new and relevant….  This means that a claimant has an easier time getting VA merits review of the claim based on evidence submitted through one of the Board lanes than through the supplemental claim option. This also means that we must reject the Secretary's argument that the option of a supplemental claim means the Board's failure to give Mr. Williams a chance to submit evidence is harmless.”  Id. at *8.

This is an interesting case.  Frankly, the court is right in focusing on the fact that supplemental claim requires new and relevant evidence and that the VA should wait until the 60 days or one year after a NOD filing is up before a decision, but I can’t wonder about the negative impacts of these and how they might just lead to further delays.

Decision by Judge Falvey and joined by Judge Jaquith and Senior Judge Greene.

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