Bryant: 90 Days to Submit Additional Evidence or Argument to the Board

Bryant v. Wilkie, Case Number 18-0092, decided October 26, 2020 discusses what happens when the Board renders a decision prior to 90 days elapsing after the veteran had stated he would forward additional argument. 

The issue was “whether the Board errs when, in accordance with 38 C.F.R. § 20.1304(a) (2017) (now 38 C.F.R. § 20.1305(a)), it issues a decision sooner than 90 days after mailing notice that an appeal has been certified and the appellate record transferred

to the Board.”  Id. at *1. 

The Court held 

when an appellant notifies VA that he or she intends to submit additional argument or evidence to the Board during the period specified in § 20.1304(a), principles of fair process prohibit the Board from issuing an adverse decision until it either receives that argument or evidence or until 90 days have elapsed since mailing the § 20.1304(a) notice.

 

Id. at *1-2. 

Procedurally, the RO issued a Statement of the Case in 2017 continuing the denial and the veteran filed an appeal to the Board stating "[f]urther argument will be advanced in memorandum in lieu of VAF 646[3 ] once BVA sends 90[-]day letter."  Id. at *2.  The

RO certified the appeal to the Board in July 2017 and the Board sent a letter on September 21, 2017, notifying the veteran his appeal had been docketed at the Board and was awaiting adjudication. The letter also stated, in relevant part: 

Please note that you have 90 days from the date of this letter or until the Board issues a decision in your appeal (whichever comes first) to request a change in representation or to submit additional argument or evidence, if you elect to do so. Any such request or submission must be sent directly to the Board. See generally 38 C.F.R. § 20.1304.

Seventy days later, on November 30, 2017, the Board issued the decision.  Id. at *2.

The Court’s ruling focused on 38 C.F.R. § 20.1304(a) which reads:

An appellant and his or her representative, if any, will be granted a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the Board . . . , whichever comes first, during which they may submit a request for a personal hearing, additional evidence, or a request for a change in representation.

After expiration of that time period, the Board would generally only accept requests to submit additional argument and evidence if the appellant demonstrated good cause for the delayed submission. See 38 C.F.R. § 20.1304(b) (2017).  The Court also noted the triggering event for the 90 days was the mailing of the notice the appeal had been certified to the Board.

The veteran made two arguments in this regard.  First, he mounts a facial challenge to the constitutionality of § 20.1304(a), contending that the regulation deprives appellants of their due process right to meaningfully participate in the adjudication of their appeals because it does not provide a date certain by which appellants must submit argument and evidence to the Board without having to show good cause. Id. at *3.  Second, he asserts that the Board's actions were fundamentally unfair and prejudiced him because the Board decided his appeal without waiting for the argument that he told the Board he would submit during the § 20.1304(a) period.  Id.

The Court did not address the constitutional question, but stated the Board’s decision deprived him of his non-constitutional right to fair process.  “Specifically, we hold that, once Mr. Bryant informed VA that he planned to submit new argument following receipt of the § 20.1304(a) notice letter, implicitly requesting that VA withhold a decision until he had done so, basic fairness obligated the Board to wait 90 days or until he submitted that argument to decide his appeal.”  Id. at *4.  Underlying the Court’s reasoning was the fact the VA system is nonadversarial.  Id.   “By prematurely deciding the appeal without the benefit of the argument that the Board knew was forthcoming, the Board effectively shut Mr. Bryant out of the appellate process, a process that, by law and regulation, is designed to be a partnership between the appellant and the Agency.”  Id. at *7.

The Court then turned to prejudice and noted that at oral argument his counsel stated “in addition to the previously identified written argument, he also had favorable linkage evidence that he was prepared to submit during that period.”  Id. at *8.  The Court concluded “Given that Mr. Bryant notified VA that he had additional argument that he intended to submit to the Board within 90 days of mailing of the September 21, 2017, notice letter, and given that he has since identified argument and evidence that he would have submitted during that time, the Court concludes that the veteran has carried his burden of demonstrating that he was prejudiced by the Board issuing its decision fewer than 90 days after mailing the § 20.1304(a) notice letter.” Id. at *9.

This is a good decision to remind veteran to ask for the 90 days, but also reminds you to be prepared to discuss prejudice.

Decision by Judge Bartley and joined in by Judges Greenberg and Meredith.

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