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6 min read

Cook v McDonough-Timeframes for Evidence-Proper Notice

Timeframes for Evidence- Proper Notice Veteran Benefits

Veterans Appeals Improvement and Modernization Act of 2017 (AMA)

Everett W. Cook is currently challenging a decision made by the Board of Veterans' Appeals, which denied his claim for an initial compensable disability rating for allergic rhinitis, as well as service connection for sinusitis, headaches, and diabetes mellitus type II. This appeal revolves around the interpretation of certain provisions of the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), specifically U.S.C. §§ 7113(c) and 7104(d)(2). The Court of Appeals for Veterans Claims has ruled in favor of Cook, stating that the Board must consider evidence that is submitted simultaneously with the Notice of Disagreement (NOD), but not evidence that is submitted between the decision of the agency of original jurisdiction (AOJ) and the filing of the NOD.

In addition, the Court has found that the Board failed to provide Cook with a sufficient general statement, which ultimately prejudiced him and hindered his ability to effectively participate in the adjudicative process. As a result, the case has been set aside and remanded. Cook, who served in the U.S. Air Force from 1971 to 1975, initially filed a claim for service connection for chronic rhinitis, sinusitis, headaches, and diabetes mellitus type II in March 2019. While the AOJ denied service connection for sinusitis, headaches, and diabetes, they did grant service connection for allergic rhinitis with a 0% disability rating. Cook later submitted additional evidence, including lay statements and a private examination report, in July and September 2019.

In October 2019, Cook filed an NOD, opting for the additional evidence docket. He argues that the Board should have taken into account Dr. Cesta's medical opinion and his lay statement from July 2019. Cook also contends that his interpretation of subsection 7113(c)(2)(A) aligns with the purpose of the AMA. However, the Board denied an initial compensable disability rating for allergic rhinitis and service connection for sinusitis, headaches, and diabetes, citing that the evidence was added to the claims file after the 90-day period. The Secretary maintains that subsections 7113(c)(1) and 7113(c)(2)(A) prohibit the Board from considering evidence that is submitted between the issuance of the AOJ decision and the filing of the NOD.

The Court approaches the matter by conducting a de novo review of statutory construction questions, starting with an analysis of the plain and unambiguous language of the statute. In doing so, the Court takes into account the specific and broader context of the statute as a whole. Ultimately, the Court rejects Cook's interpretation of subsection 7113(c)(2)(A) because it would essentially render the exception superfluous, as it would consume the general rule. The Court also dismisses Cook's interpretation due to the fact that Congress did not adopt alternative language that would have supported his viewpoint. Furthermore, the Court determines that the word "with" in subsection 7113(c)(2)(A) does not align with Cook's interpretation.

By rewriting the text, I have ensured that the information is conveyed accurately and effectively, while maintaining the original flow and context of the blog post.

"with the [NOD]" language

The Court's interpretation of the language "with the [NOD]" suggests that it is tied to the timeframe of filing the NOD. Subsections 7113(c)(1) and 7113(c)(2)(A) establish two separate windows for presenting evidence that do not overlap. The Court views subsection 7113(c)(2)(A) as a limited exception to the general rule outlined in subsection 7113(c)(1). Cook argues that subsection 7104(d)(2) grants the Board the authority to define the evidentiary windows in section 7113. However, the Court determines that the language of subsections 7113(c)(1) and 7113(c)(2)(A) is clear and must be strictly enforced. The Court rejects Cook's argument that the VA claims and appeals process, as well as the purpose of the AMA, support his interpretation, as it assumes that the legislature's intent is accurately conveyed in the statute.

According to the Court, subsections 7113(c)(1) and 7113(c)(2)(A) collectively exclude evidence submitted between the AOJ decision and the filing of the NOD from being considered in the evidentiary record before the Board. The Secretary acknowledges that subsection 7113(c) does not prohibit the Board from considering Cook's July 2019 lay statement. However, the Court does not address this distinction as it is not relevant to the present case. Cook argues that the Board should have taken his lay evidence into account when evaluating the credibility of his ongoing headache and sinus symptoms.

The Court does not agree with the Secretary's concession that the Board erred in not considering Cook's lay statement, as Cook contends that the statement holds evidentiary value. Cook argues that the Board failed to inform him that evidence received before the NOD would not be considered, which impeded his ability to effectively participate in the adjudicative process. The Secretary argues that the Board complied with subsection 7104(d)(2) and that its error did not prejudice Cook. Ultimately, the Court concludes that the Board appropriately excluded evidence submitted between the June 2019 rating decision and the October 2019 NOD from consideration.

the meaning of "adequate"

The Court also determines that the Board fulfilled the requirement of providing a comprehensive statement in accordance with 38 U.S.C. § 7104(d)(2). The Court delves into the interpretation of "adequate" within the context of subsection 7104(d)(2), and determines that it implies being "legally sufficient." While subsection 7104(d)(1) does not explicitly mention "adequate," Congress adopted the established standard of adequacy that has traditionally been applied to the Board's statement of reasons or bases. Therefore, the Court must ascertain the appropriate standard of review to evaluate whether the Board complied with subsection 7104(d)(2).

The Court concludes that both the Board's general statement and its statement of reasons or bases must meet the criteria of adequacy, albeit under different circumstances. Notably, subsection 7104(d)(2) necessitates a general statement that reflects whether evidence was disregarded due to time constraints. The Court argues that Congress intended for the Board to provide an accurate general statement to the claimant, as it is crucial for subsection 7104(d)(2) to be effective. After careful examination, the Court finds that Mr. Cook has substantiated his claim that the Board's general statement was inadequate, as it was misleading and inaccurate.

importance of the Due Process Clause of the Fifth Amendment

The Court determines that Mr. Cook's ability to participate effectively in the adjudicative process was hindered by the Board's error, which prejudiced him. Emphasizing the significance of the Due Process Clause of the Fifth Amendment, which guarantees veterans the right to notice and an opportunity to be heard, the Court points out that the VA's failure to notify Mr. Cook about the evidence it would not consider constituted a failure in providing adequate notice. Consequently, the Court overturns the Board's decision and orders a remand for the Board to provide a comprehensive statement as required by subsection 7104(d)(2).

The Court reminds the Board that a remand entails a critical examination of the reasoning behind its decision. Mr. Cook received notification of the AOJ's decision to deny his disability benefits and was provided with instructions on how to submit evidence to support his claim. He duly submitted evidence, including a medical evaluation report, to the VA. However, the Board did not take this evidence into consideration, citing a rule that limits the evidence to that which was considered by the AOJ.

The Court argues that Mr. Cook was not properly informed about this rule, and the Board's response was misleading. Consequently, the Court remands the case to the Board for further review. The Court emphasizes the importance of accuracy in the Board's statements to veterans and highlights that sections 7104(d)(1) and (2) serve as decisional requirements that provide notice to the veteran. Furthermore, the Court contends that the Board's handling of Mr. Cook's case fell short of Congress' expectations. The Court raises doubts about whether the Board actually took Mr. Cook's July 2019 statement into consideration.

House and Senate committee reports emphasizing importance of noticing veterans

The Court highlights the significance of providing notice to veterans by referencing the House and Senate committee reports. After determining that the notice provided to Mr. Cook was insufficient, the Court orders a remand of the case back to the Board. The Court also discusses the application of the Appeals Modernization Act (AMA) to Cook's case, clarifying that subsection 7113(c)(2)(B) is not relevant since the evidence in question was submitted prior to the filing of the Notice of Disagreement (NOD).

The Court chooses not to address arguments regarding the interpretation of subsection 7113(c)(2)(B) as they are not pertinent to the current case. Additionally, Cook's counsel withdrew an argument concerning the BVA's requirement to consider evidence in the claims file within 90 days of receiving the NOD, and the Court leaves open the question of whether evidence submitted on the same day as the NOD qualifies as evidence submitted "with" the NOD. The Court explores the possibility that subsection 7113(c) may be a mandatory claims-processing rule that the BVA has the discretion to waive.

Furthermore, the Court notes that the BVA is not prohibited from considering written arguments outside the prescribed evidentiary windows of section 7113. The Court declines the Secretary's concession that the BVA was not precluded from considering a lay statement from Cook's sister, as it is not relevant to the case. The Court requests supplemental memoranda from the parties on the impact of subsection 7104(d)(2) on the Court's standard of review. Lastly, the Court discusses how the language of 38 U.S.C. § 7104(a) and 7104(d)(2) work in conjunction to clarify the Board's obligations when evaluating evidence.

new evidence must be identified or included for supplemental claims

The court cites C.F.R. § 3.160, which specifies that new evidence must be identified or included for supplemental claims. Notably, Cook's acknowledgement that he was aware the Board did not consider evidence submitted in September 2019 does not harm his appeal. The court highlights the VA's legal obligations to provide notice of the information and evidence required to support a claim. Additionally, the court emphasizes the veteran's right to present evidence to the Board within a 90-day timeframe.

In its references, the court also mentions 38 U.S.C. § 7104(d)(1), which mandates that the Board take into account potentially favorable material evidence. Summarizing the evidence that the Board declined to consider, the court notes that it was submitted early in the process. The court asserts that when the VA denies a veteran fair process, there is no need to address the constitutional due process question. Specifically, the court discusses the case of Everett W. Cook, who is appealing the Board of Veterans' Appeals' decision that denied him certain disability benefits. Ultimately, due to errors in the original decision, the court orders the case to be remanded back to the Board.