Brack v. McDonough, Case Number 22-3957, decided April 24, 2024 involves how much time a veteran has to submit additional evidence when they select the additional evidence lane before the Board.
Historically claimants were advised they should submit argument, if any, during the 90-day period for submitting evidence following certification of appeals to the Board. That submission period was codified formerly at 38 C.F.R. § 20.1304(a). Relying on § 20.1304(a), the Court held in Bryant v. Wilkie, 33 Vet.App. 43 (2020), that the fair process doctrine prohibited the Board from issuing a decision before the expiration of that 90-day period when a claimant states an intention to submit argument (unless argument is, in fact, submitted sooner). However, Bryant was in the legacy system, the Court now considered the same question in the AMA.
Here, the veteran requested 90 days until after his non-attorney representative received a copy of his claims file so the latter could submit evidence. However, the veteran also filed a formal appeal to the Board and chose the direct review lane. The Board didn't wait the 90 days. “The question before the Court is whether the Board failed to liberally construe Mr. Brack’s delay request as stating an intention to submit argument and, if so, whether Bryant's fair process holding required the Board to honor the request in these circumstances for an exception to the expedited procedures of the direct review lane. We conclude that, even if the Board did misconstrue the veteran's request, fair process didn’t require the Board to delay issuing its decision. The appellate procedures and options provided by the AMA ensure that a claimant in Mr. Brack's circumstances has ample opportunity to present argument to the Board, thereby affording all the procedural rights the fair process doctrine is meant to protect. That Mr. Brack chose the one appellate option ill-suited to his circumstances is not a proper basis for the Court, in the name of fair process, to alter the essential nature of that option.” Id. at *2.
The Court explained Bryant was rooted on then Section 20.1304, which was amended by the AMA and represents a key difference from the legacy and AMA systems.
The Court explained:
“In the modernized system governing Mr. Brack's appeal, certification no longer occurs and an NOD is filed directly with the Board. 38 C.F.R. § 20.203(a) (2023). Most relevant here, there is no longer a general 90-day period for submitting additional evidence provided by § 20.1304. See 38 C.F.R. § 20.1304 (2023) (now covering only requests for changes in representation). Instead, the AMA introduced a key reform, allowing claimants to "choose from three procedural lanes to obtain review of their claim within one year of the initial decision." MVA, 7 F.4th at 1119. "The AMA's three-lane system was intended to alleviate the legacy system's growing appeals backlog by allowing claimants to choose from new and more efficient administrative review pathways specifically tailored for their needs."”
Id. at *7.
First, the Court rejected the notion of tension between the direct lane NOD request and request for additional time. The Court explained: “Permitting claimants to choose the direct review lane and then demand individualized adjudication timelines would introduce procedural complexity and alter the fundamentally expeditious nature of the direct review lane, potentially causing delays for other claimants who chose the direct review lane precisely for its quickness.” Id. at *11.
The Court explained the NOD was due in July 2022 and his representative received a copy of the claims file in January 2022, meaning if he had waited, he would have had 6 months to collect the new evidence and submit a NOD. Id. at *11. The Court concluded: “Thus, because there were procedural options open to Mr. Brack that would have provided him a reasonable opportunity to submit argument to the Board before it issued a decision, the Court is not persuaded that the fair process doctrine entitled him to a 90-day delay in the context of the direct review lane, which was designed to produce a Board decision as quickly as possible.” Id. at *12.
Judge Jaquith wrote a concurrence explaining he believed the veteran failed to show prejudicial error and thus agrees with the result, but could not agree with the majority’s take on fair process under the AMA because it may weaken a commitment to fairness. In terms of fair process, he noted: “To start, it is undisputed that fair process is required in both legacy and AMA cases. The Secretary specifically said that he "acknowledges that claimants have a general right to fair process in the development and adjudication of their claims and appeals before VA, including under the modernized system." Secretary's Supplemental (Supp.) Br. at 4. The Secretary agreed with the veteran that "even in situations where no particular procedural process is required by statute or regulation, the principle of fair process may nonetheless require additional process if it is implicitly required when 'viewed against [the] underlying concepts of procedural regularity and basic fair play' of the VA benefits adjudicatory system."” Id. at *13.
Judge Jaquith was concerned the majority’s language might undermine the commitment to fair process and instead argued: “Fair process is part of the soil in which the AMA system was planted. In the brave new AMA world, as in legacy days of yore, we consider what the fair process principle requires when no particular procedural process is prescribed by statute or regulation. Bryant, 33 Vet.App. at 46-47. I read the majority opinion as a commendable effort to do just that—to determine what the fair process principle requires in the sloppy circumstances of this case—and the Court's decision should not be read or used to subvert the fair process principles on which the system for adjudicating veterans claims rests. To that end, I cannot endorse statements that can be read to suggest that fair process principles are foreclosed by the direct review lane's fast pace.” Id. at *15. He then found error by the Board, but pivoted to the question of whether the error was prejudicial and determined “the veteran has not identified or developed any argument relating to that decision [the denial of an earlier effective date based on onset of the disability rather than the date of his claim] that the Board's unresponsiveness to his August 2021 request stymied.” Id. at *19.
Decision by Judge Toth and joined in by the Judge Laurer with a concurrence by Judge Jaquith.
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