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5 min read

Davis v McDonough-New and Material Evidence

New and Material Evidence Veteran and Child sitting together

untimely notice of disagreement (NOD)  

Stanley L. Davis, the appellant in this case, lodged an appeal against the Board of Veterans' Appeals' decision that his notice of disagreement (NOD) was untimely. However, the Board did not take into account the evidence submitted by Davis, which included letters, a report, and affidavits, deeming it as new and material evidence. The Court of Appeals for Veterans Claims upheld the Board's decision, stating that the 90-day period for submitting additional evidence commenced when Davis faxed his NOD to the Board. Chief Judge Margaret Bartley authored the opinion, while Judge Joseph L. Falvey filed a concurring opinion.

Davis served honorably in the U.S. Navy from 1985 to 1988. In 2004, the RO (Regional Office) denied service connection for lupus. However, in 2010, the RO granted service connection for systemic lupus erythematosus, alopecia, and depression. Disputing the assigned effective date for service connection, Davis appealed the 2010 decision. In 2013, Davis argued that the 2004 decision contained a clear and unmistakable error (CUE) in its incorrect application of 38 C.F.R. § 3.303(a) and (d). Consequently, the Board remanded the claim for an earlier effective date in 2014, instructing the RO to adjudicate the CUE motion. Subsequently, in 2016, the RO denied the CUE motion, and Davis sought to file an NOD, which the RO deemed untimely.

In response to the RO's determination of untimeliness, Davis filed an NOD, and in 2019, the RO issued a Statement of the Case (SOC). Davis then faxed a VA Form 10182 to the Board, choosing to participate in the modernized review system. The Board informed Davis that he had 90 days to submit new evidence, and Davis requested that the Board postpone its decision for the full 90 days. The Court of Appeals for Veterans Claims upheld the Board's decision, affirming that the Board accurately received Davis's VA Form 10182 on August 14, 2019, and that any evidence submitted beyond the 90-day window was not validly considered by the Board. Davis contends that the Board made an error in determining that it received his VA Form 10182 on August 14, 2019, and that the 90-day window for evidence submission concluded on November 12, 2019.

distinction between "file" and "receipt"

Davis argues that the Board did not officially receive his Notice of Disagreement (NOD) until September 9, 2019, when they acknowledged its receipt. Alternatively, Davis claims that the evidence he submitted in December 2019 should be considered as constructively before the Board. However, the Secretary contends that the Board reasonably determined that they received Davis's VA Form 10182 on August 14, 2019, and therefore, the evidence submitted in December was untimely. The Court of Appeals for Veterans Claims supports the Board's decision. Davis emphasizes the distinction between "file" and "receipt" in his case, as it could potentially extend the 90-day window for evidence submission. While Davis acknowledges that he faxed the form to the Board, he argues that it was not considered received until it was uploaded to his claims file.

The Board considered the form received on the day it was faxed, based on the understanding that a successful fax transmission indicates immediate receipt of the document. The Court of Appeals for Veterans Claims rejects Davis's arguments and upholds the Board's decision. Davis further contends that three documents were constructively in the Board's possession when they made their decision, despite not being timely submitted. The Court evaluates constructive possession to ensure that the Board's decision is fair and reasonable. To establish constructive possession, the evidence must predate the Board's decision, be under the Secretary's control, and be relevant to the claim.

The documents in question are the GAO report, two letters from Davis's counsel, and the "Chisholm" and "Rauber" affidavits. Davis argues that the GAO report is relevant because it exposes irregularities in the VA's mail practices. However, the Court determines that the GAO report does not address the accuracy or reliability of the VA's mailing practices, and Davis misinterprets its purpose and findings. Davis also asserts that the two letters from his counsel to the VBA Director and the Board Director are pertinent because they document irregularities in VA mailings. Nevertheless, the Court finds that Davis fails to demonstrate that either letter should reasonably be part of his administrative record. Consequently, the Court concludes that the GAO report and the two letters were not constructively before the Board.

However, the Court finds that the Chisholm and Rauber affidavits, which Davis argues are relevant to his case, do not hold the same importance as the NAS reports. Additionally, the Court notes that the Romero case, which Davis references, does not support his argument as it pertains to a different issue. Therefore, the Court concludes that the affidavits could not reasonably be expected to be associated with Davis's record, and the Board was not obligated to consider them. Davis also contends that the Board should have taken into account his December 2019 brief. However, the Board determined that the brief relied on information submitted after the evidence submission window had closed.

new and material evidence

Davis contends that the Board's failure to consider the June 2019 letters as new and material evidence was a mistake, but the Court disagrees, stating that these letters were not actually or constructively before the Department of Veterans Affairs (VA) in his case. Additionally, Davis argues that the December 2019 brief supports the relevance of GAO-17-581 and the June 2019 letters, but the Court determines that the brief cannot be considered as it functions as evidence and was submitted after the evidence submission window closed. Davis also claims that he relied on the Board's letter acknowledging receipt of his VA Form 10182, but the Court deems his assertions unreasonable. Ultimately, the Court concludes that the Board acted reasonably in refusing to consider evidence that would have challenged Davis's argument regarding the presumption of regularity.

Furthermore, Davis argues that the letter from the Board on September 9, 2019, implied that they received his VA Form 10182 on that same date. However, the Court finds that the letter did not contain any explicit or implicit statement to support Davis's interpretation. The Court refers to recent precedential decisions, such as Euzebio v. McDonough, to guide their assessment and determines that the documents Davis emphasizes are not as relevant as the NAS report in Euzebio. Consequently, the Court affirms the Board's decision that Davis's Notice of Disagreement (NOD) in December 2018 was not filed in a timely manner. In a concurring opinion, Judge Falvey highlights considerations for determining whether evidence is constructively before the Board.

concept of "constructive inclusion" of evidence

The Court delves into the concept of "constructive inclusion" of evidence, drawing from the Bowey v. West case as a reference. It outlines several factors to consider when determining if a document is constructively before the Board, such as the purpose of the document, how the Board obtained it, and its relevance to the claim at hand. After careful examination, the Court concludes that the documents presented by Davis are irrelevant and not reasonably expected to be included in the official record. Davis argues that the Board received his Notice of Disagreement (NOD) after August 14, 2019, and therefore, the 90-day period for submitting evidence should commence on September 9, 2019, when the Board acknowledged receipt.

While the Court acknowledges that the Federal Circuit has not adopted a presumption of receipt based on a fax confirmation sheet, it does note that the Board relied on the transmission date indicated on the faxed NOD. Additionally, the Court highlights that the Department of Veterans Affairs (VA) dismissed a suggestion to start the 90-day window upon the Board's notification of receipt. Davis withdraws an argument pertaining to a letter sent to the Board containing another claimant's name and file number.

The Court also addresses the Chisholm and Rauber affidavits, which are not included in the record for this particular appeal. Notably, Davis's counsel failed to submit supporting letters for the appeal in a timely manner. The Board denies Mr. Davis's appeal in July 2020, and while Romero is issued in November 2020 and later withdrawn and reissued in January 2021, the Court states that it made no conclusion regarding the evidence in Romero suggesting widespread VA mailing problems. Although Mr. Davis references the Chisholm and Rauber affidavits, the Court does not discuss them since they were not mentioned in the Board's brief.