Andrews: Board Obligations on Remand Post-AMA, i.e., no additional evidence

Andrews v. McDonough, Opinion Number 19-3227, was decided May 28, 2021 and involves what happens when a case is remanded from the Court to the Board.

The parties agreed a remand was necessary for the VA to provide a new examination and for the Board to provide an adequate reason or bases for its decision.  The veteran argued he had a right to have the Court direct the Board to expedite the proceedings, provide a hearing at the Board, and submit additional evidence to the Board.  Id. at *3.  The Secretary agreed the claim must be expedited, but argued the veteran cannot submit more evidence because this option is unavailable under the direct review docket that he selected when he appealed to the Board under the AMA.  At oral argument, counsel for the veteran informed the Court he did not plan to request a hearing so the only question before the Court was whether the veteran could submit more evidence on remand and what the Board must do in response to the evidence. 

The court noted: “At its core, this is a question about how Fletcher and Kutscherousky apply within the new process Congress created through the AMA.”  Id. at *4.  The Court then stated:

Merging these holdings, we have established a rule that requires the Board on remand to engage in a critical examination of the justification for the decision, “reexamine the evidence of record, seek any other evidence the Board feels is necessary, and issue a timely, well-supported decision in this case.” What’s more, the Board must allow a claimant 90 days to submit additional evidence and argument. The question before us is whether these holdings apply to cases adjudicated under the AMA.

Id. at *6.

The Court then discussed the AMA versus Legacy Systems.   The Court explained under the new-AMA system:

when claimants appeal to the Board, they must select one of three dockets. If they select the direct review docket, the record in the claim is limited to the evidence at the time of the AOJ decision. Claimants may change dockets within 1 year of the AOJ decision or within 60 days of when the Board receives the claimant’s NOD, whichever is later. With this overview of Fletcher and Kutscherousky, as well as a better understanding of the AMA and the legacy system, we are closer to explaining how our precedent about a claimant’s rights on remand applies in the AMA.

Id. at *8.  The Court then decided:

Thus, on remand his case will return to the direct review docket he selected. And Congress decided that, in the direct review docket, he will be unable to submit more evidence. The bottom line is that we may not instruct the Board to let Mr. Andrews submit more evidence.

Id. at *10.  The Court also rejected any argument that Court remands should be treated otherwise as the statute did not indicate such.  The Court then stated that

when VA enacted its regulations covering how a claimant may switch dockets, it did so with the knowledge that this Court would be remanding cases. VA explained that “remands require the Board to readjudicate the appeal based upon the same record previously before the Board; accordingly, such appeals would be placed on the same docket that the veteran was on previously.” The bottom line is, we see no reason, and have no authority, to override the text of the statute and the regulation.

Id. at *10.

The Court reasoned:

If we simply ordered that he be allowed to submit evidence on remand while in the direct review docket, we would flout Congress’s instruction that “the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the [AOJ] on appeal.” And if we ordered VA to allow Mr. Andrews to pick a different docket on remand, we would have to ignore VA’s regulations that provide specific deadlines for those docket changes—deadlines that have already passed.In effect, we would be again making the Board a body that newly develops and adjudicates evidence rather than the appellate body that the AMA was meant to shore up. Mr. Andrews has not pointed to authority that would enable us to do any of this. True, he has argued that he has a Due Process right to submit additional evidence, but this argument is unconvincing and underdeveloped.

Id. at *10-11.

This is an important case that clarifies that after remand from the Court, the veteran has no right to submit additional evidence.  A small crack remains that a due process argument could sway the Court, however, it will be a hard argument to win.  It was a common practice for good attorneys to win a remand and present a medical opinion to the Board and hope for an early win at the Board.  It appears this has now been eliminated.  Still, this does not undermine the value of a Court appeal as it allows for correction of legal errors and further development by counsel while also preserving the ability to submit new evidence through a supplemental claim if the Board again denies the claim.

Decision by Judge Laurer and joined in by Judges Greenberg and Falvey.

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