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In a recent decision by the United States Court of Appeals for Veterans Claims in the case of Andrews v. McDonough, the Court held that new evidence may not be introduced when a claim is in front of the Board of Veterans’ Appeals as part of their direct review docket. The Court stated that this rule applies to claims brought directly to the Board, as well as claims that a higher court decides the Board should reevaluate, such as when a case is remanded. This decision by the Court serves as a strong reminder that veterans should think carefully when choosing the path by which they will pursue their benefits.
The Andrews decision stems from a claim filed by Mr. Wendell Andrews with the US Department of Veterans Affairs. Mr. Andrews was seeking increased rating for his service-connected disabilities. After VA denied his claim, Mr. Andrews filed a Notice of Disagreement, or a NOD, with the Board of Veterans’ Appeals. When doing so, he elected to file the appeal on the Board’s direct review docket. This decision formed the basis of the dispute that eventually was resolved by the Veterans Court.
Under the Veterans Appeals Improvement and Modernization Act of 2017 (“AMA”), a veteran who wishes to appeal to the Board has three avenues by which to do so: the direct review docket, an additional evidence docket, or a hearing docket. Under the AMA, a veteran may still introduce new evidence when appealing to the additional evidence or hearing dockets. However, if the appeal is made to the direct review docket, no additional evidence may be submitted for the Board’s consideration. A direct review appeal is only appropriate for appeals based on the claim that VA made a mistake when ruling on the claim; not because the veteran seeks to introduce new evidence.
Although there are ways that a veteran can change lanes from one docket to another, Mr. Andrews did not elect to do so. The Board subsequently denied his claim, and Mr. Andrews then filed an appeal to the Veterans Court. In his appeal, he asked the Court to overturn the Board’s decision and remand the case (in other words, send it back to the Board to be fixed). While his appeal was pending before the court, Mr. Andrews determined that he would like to submit additional evidence to the Board in support of his case. Accordingly, he also requested that the court issue an order permitting him to do so.
The Veterans Court granted the remand but denied Mr. Andrews’s request to submit new evidence to the Board. It held that although a veteran may not bring new evidence under a direct review appeal, he or she may introduce a new argument. This new argument may be brought on both direct appeal and remand but must only rely on evidence that was introduced prior to appeal.
If you want to appeal a decision to the Board of Veterans’ Appeals and choose a direct review appeal, you must make sure you have presented all your evidence to the original agency. Please reach out to the legal professionals at West & Dunn online or by phone at (608) 975-3042 if you need assistance navigating the VA appeal process.