Spigner: New Evidence Time Lines in Appeals to the Board

Spigner v. McDonough, Case Number 22-2636, decided November 7, 2024 concerns a particular rule stating the Board cannot consider new evidence submitted prior to the hearing.

The AMA adding layers of complication to an already complicated system.  The oddest one might be that when a veteran appeals to the Board and requests a hearing, the Board will only consider new evidence submitted at the hearing or within 90 days after the hearing.  This is odd because many times a veteran will submit a memorandum with their notice of disagreement or before the hearing.  Any new evidence submitted at that time cannot be considered by the Board.  However, if that new evidence is submitted within 90 days of the hearing, the Board can consider it.

In this case, new evidence was submitted but the Board did not consider it because it was not submitted within the 90 days after the hearing.  The odd thing about this case was that the Board had rescheduled a hearing on its own accord.  The new evidence was submitted after and within 90 days of the originally scheduled hearing. 

The Court remanded the case arguing under this odd set of facts the Board erred in not considering the new evidence.  “The Court holds that because the Board sua sponte rescheduled the August 2021 hearing, that is, the Board rescheduled the hearing without a request from the appellant, and because the Board's rescheduling is not consistent with withdrawal referred to in 38 C.F.R. § 20.704(d), the rescheduling here was not "subject to" § 20.704(d). Therefore, § 20.302(c) controls as to the evidentiary record before the Board; and because § 20.302(c) provides that where a hearing "is not rescheduled subject to § 20.704(d)," the Board decision should have been based on evidence submitted by the appellant or his or her representative within 90 days following the date of the scheduled hearing. The Court concludes that in the Board's March 2022 decision, the Board erred by refusing to consider the appellant's September 2021 evidentiary submission. Accordingly, the Court will set aside that Board decision and remand the matters for proceedings consistent with this decision.”

This is an odd case on an unusual set of facts.  While illustrating a particularity of the law, I am not sure that it has much other import.

Decision by Judge Greenberg and jointed by Judges Bartley and Jaquith.

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