Clark: Veterans Have 90 Days as of Right to Present Proof to the Board after Remand from the Court

Clark v. O’Rourke, Case Number 16-2826, decided July 10, 2018 considers a veteran’s right to present additional evidence to the Board after a remand from the Court.

In this case, the question was new and material evidence and the Court had issued a remand.  The Board then sent a letter to the veteran stating "[i]f you elect to submit any additional argument or evidence, it must be submitted to this office within 90 days of the date of this letter or until the date the Board issues a decision in your appeal, whichever comes first."

The veteran’s advocate submitted a post-remand brief, but no new evidence.  Fifty days after the remand notice letter, the Board decided there was no new and material evidence and refused to reopen the claim.  This appeal resulted.

The veteran’s counsel argued that under Kutscherousky v. West, 12 Vet. App. 369 (1999)(per curium), 38 C.F.R. § 20.1304(a) applies in cases where a claim is remanded from the Court and gives the veteran 90 days to respond before a decision is made by the Board.  At oral argument, the Secretary conceded the notice letter it had sent was inadequate but argued the appellant implicitly waived his right to utilize all or part of the 90 day period.  Id. at *3-4.  The Secretary then pointed to language in the veteran’s post-remand brief stating it was “look[ing] forward to a decision.”  Id. at *4. 

The Court stated it would not allow the VA to unilaterally reduce or eliminate the 90 day period to submit new evidence and that as this is a matter of right, the right cannot be waived absent a voluntary, knowing and intentional waiver.  Id. at *6-7.  The Court then stated because the notice letter was flawed, there could be no intentional waiver.  Id. at *7.  It also stated:

Nowhere in the postremand brief is there the slightest indication that the appellant waived his right to submit additional evidence. Praying for an "equitable resolution of the appeal" and stating that he "look[ed] forward to a decision representing sound rating principles" cannot reasonably be understood as relinquishing any rights he would otherwise retain up until the actual issuance of that decision.

Id. at * 7.

The Court then determined the error was not prejudicial.  It noted “The appellant asserted in his February 2017 brief regarding his current appeal that, if VA had granted him the full 90 days to submit evidence postremand, he ‘may have been able to procure evidence material to his claim.’ In his reply brief, the appellant asserted that he has new medical evidence which may substantiate his claim and that he therefore can identify evidence that he ‘would have submitted…had the Board not prematurely issued the decision on appeal.’”  Id. at *8.

Judge Meredith wrote a dissent which agreed with the right to a 90 day period to submit new evidence absent a voluntary, knowing, and intentional waiver.  However, she would have determined the appellant had not carried his burden in demonstrating that VA’s errors were prejudicial and because she believes the majority opinion contravened controlling precedent in finding prejudice.  Id. at *9.  It would appear she would have been more comfortable finding prejudicial error if counsel had made a proffer of the evidence that would be submitted. 

The 90 day rule seems enshrined by this case, but the more interesting question might be how it reveals some of the judge’s opinions on the prejudicial error analysis.  Judge Greenberg seems to view it potentially more liberally whereas Judge Meredith might require more.

The decision was by Judge Greenberg and joined in by Judge Schoelen.  Judge Meredith dissented.