Williams: Section 20.1304(a) and 90 Day Letters

Williams v. Wilkie, Case Number 16-3988, decided September 13, 2019 concerned Section 20.1304(a) and whether the veteran could rely on a letter giving 90 days or the date of the decision to respond before the Board would issue a decision.

In this case, the Board had remanded to the RO and the RO issued a supplemental statement of the case (SSOC) and then the Board made a decision on day 42 after notifying the veteran the Board had received the case back from the RO following the earlier remand.

The Court makes its decision on two grounds.  First, the Court determined the triggering event for application of Section 20.1304(a) was certification of the appeal, not return of the appeal from the RO after a remand.  Id. at *5.

The Court noted, the veteran

argues that preamendment § 20.1304(a) nevertheless applied to his case when it was returned to the Board following the October 2014 remand because, "[a]s long as an appeal is certified, § 20.1304 applies every time the appellate record is transferred to the Board." Reply Br. at 5-6. In essence, he argues that, after an appeal is certified, any mailing of notice that the appellate record has been transferred back to the Board again implicates § 20.1304(a) and begins the running of the time period specified therein. See Mot. for Recon. at 12-14. Although the Court agrees that an appeal remanded to the AOJ does not need to be certified again to be automatically returned to the Board if the RO does not grant benefits in full, we do not agree that § 20.1304(a) is triggered anew each time an appeal is returned to the Board.

Id. at *7.

Second, the veteran argued the Board’s citation to 20.1304(a) in its notice letter made the provision applicable to him and created in him a justifiable reliance on the letter and induced him into believing he had 90 days to submit additional evidence or argument.  Id. at *11.  The Court determined the veteran failed to meet the burden of showing he was harmed by the Board’s erroneous citation to Section 20.1304(a).  Id. at *12.  The Court began by stating the notice actually gives 90 days or until a decision is made to make a decision and also notes the veteran and his VSO repeatedly affirmatively indicated they had no further arguments or evidence.  Id. at *14.  The Court did explain in footnote 7 that:

the Court is not holding that the Board's erroneous citation to § 20.1304(a) in a notice letter is necessarily not prejudicial or that the Board does not err when it issues a decision sooner than 90 days after mailing a notice letter to a claimant in a case where § 20.1304(a) actually applies. Rather, we hold only that Mr. Williams has failed to carry his burden of demonstrating that any Board error in this case prejudiced him.

Id. at *15.

The case underscores the oddity of Section 20.1304(a) which really guarantees nothing to the veteran (90 day or until the Board has already made a decision unless you can make a showing of good cause).

The decision was by Judge Bartley and joined in by Judges Toth and Falvey.

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