Sheppard: Board's Decision as to New and Material Evidence in the First Instance and Without Notice

Sheppard v. Shinseki, Opinion Number 19-4776, was decided March 15, 2021 and involves whether the Board had to provide notice that there was a new and material evidence issue where the RO had previously reopened a claim. 

A claim for service connection for a hand and mental health disability had been denied several times and ultimately a September 2016 SOC found the claims were reopened, but denied service connection based on a lack of a nexus opinion.  The case was appealed to the Board, which found new and material evidence had not been submitted and denied reopening the claims.

The veteran argued the issue of new and material evidence is a jurisdictional requirement of the Board, but 38 CFR Section 20.101(d) applies to require that the Board give notice of the issue to the veteran. The VA argued Jackson v. Principi, 265 F.3d 1366, 1369 2 (Fed. Cir. 2001), controlled.  Jackson found the degree of overlap in the evidence that would require reopening or the merits of claim are so similar that a claimant is not prejudiced when not given notice the Board will consider the issue.

The Court noted:

no one should ever be surprised that the Board independently considered whether there was sufficient evidence to reopen a claim because it is required to do so. However, although the Board generally must ensure its jurisdiction, if it sua sponte raises an issue with an NOD, SOC, or SA, that may come as a surprise to a claimant and necessitates different evidence and argument than the merits of the claim.

Id. at *8.

The Court then notes:

The Federal Circuit's and our cases may characterize the new and material evidence question as a jurisdictional one.  But how the Board has always handled and disposed of requests to reopen versus other jurisdictional matters and that our Court has never faulted the Board for denying a request to reopen, rather than dismissing the appeal of that claim, further demonstrates the distinction between the two.

Id. at *9.

The Court then found the procedural safeguards of Section 20.104(c)-(d) do not apply to requests to reopen claims because Jackson supports the proposition that the issues of reopening and merits are so similar that the arguments would overlap and notice from the Board is not required.

The Court then undertook a prejudicial error analysis and determined the veteran had not identified newly submitted evidence showing a nexus (the missing link in this case). 

Chief Judge Bartley wrote a cogent and blistering dissent.  Succinctly she argues: “Section 20.101(d) is a VA-created rule that affords veterans the right to notice, a hearing, and the opportunity to submit evidence where the Board raises a potential jurisdictional defect, and the Board was bound to apply it here.”  Id. at *15.  She roots her analysis in the plain meaning of the regulation.  She also argues Jackson does not apply as it predates the notice regulation.  As far as overlapping evidence in reopening and merits of a claim, she argues the reopening legal threshold is lower.  She also argues holding a claimant to a higher legal standard than the law requires is not harmless error.  Id. at *18.

This determination that the issues involved in a claim before the Board (moving down from the merits to whether it should even have been reopened) does not trigger a notice requirement is troubling and demonstrates the willingness of the Board to deny veteran’s a voice.  This decision seems to support such a finding.  I can only hope it is appealed and set right by the Federal Circuit.

Opinion by Judge Falvey and joined by Judge Allen. Dissent by C.J. Bartley.

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