Stanley L. Davis v. Denis McDonough ( 2023 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-5411
STANLEY L. DAVIS, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued May 24, 2022 Decided May 31, 2023)
Kenneth H. Dojaquez, of Topeka, Kansas, for the appellant.
Alexander You, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief
Counsel; and Drew A. Silow, Deputy Chief Counsel, were on the brief, all of Washington, D.C.,
for the appellee.
Before BARTLEY, Chief Judge, and FALVEY and LAURER, Judges.
BARTLEY, Chief Judge, filed the opinion of the Court. FALVEY, Judge, filed a
concurring opinion.
BARTLEY, Chief Judge: Veteran Stanley L. Davis appeals through counsel a July 8, 2020,
Board of Veterans' Appeals (Board) decision that found untimely a December 2018 Notice of
Disagreement (NOD) filed with respect to a May 2016 VA regional office (RO) decision. Record
(R.) at 5-10. His appeal of that issue to this Court is timely, and we have jurisdiction to review the
Board decision. See 38 U.S.C. §§ 7252(a) and 7266(a).
This appeal concerns whether the Board erred in not considering evidence submitted by
the veteran that related to VA's mailing of his May 2016 decision. Under VA's modernized appeal
process, also called the Veterans Appeals Improvement and Modernization Act (AMA), a claimant
who appeals an adverse decision by the agency of original jurisdiction to the Board and wants to
submit additional evidence must do so within 90 days after the Board's "receipt" of the claimant's
VA Form 10182, the AMA NOD. 38 U.S.C. § 7113(c)(2)(B). This matter was referred to a panel
of this Court, with oral argument,1 to address the veteran's arguments regarding the meaning of
1
Davis v. McDonough, No. 20-5411, Oral Argument [hereinafter Oral Argument]. Available at
https://www.youtube.com/watch?v=sXrISSYHubc.
"receipt" as used in section 7113(c)(2)(B). We conclude that the Board neither clearly erred in
determining that it received Mr. Davis's VA Form 10182 on August 14, 2019, nor clearly erred in
refusing to consider evidence submitted after the section 7113(c)(2)(B) 90-day period ended on
November 12, 2019. In addition, the Court determines that the evidence submitted outside the 90-
day window was not constructively before the Board. Thus, and because Mr. Davis does not assert
error based on the evidence the Board considered, the Court will affirm the July 2020 Board
decision.
I. FACTUAL BACKGROUND
Mr. Davis served honorably in the U.S. Navy from August 1985 to June 1988. R. at 2498.
In May 2004, the RO denied service connection for lupus. See R. at 422-23. Mr. Davis did
not appeal that decision. However, following a request to reopen the claim, the RO, in June 2010,
granted service connection for systemic lupus erythematosus with glomerulonephrosis (a kidney
condition), alopecia (hair loss), and depression, effective February 27, 2009. See R. at 417.
Mr. Davis appealed the June 2010 RO decision to the Board, challenging the effective date
assigned for service connection. See id.2
In October 2013, Mr. Davis argued, among other things, that the May 2004 RO decision
contained clear and unmistakable error (CUE) in failing to properly apply 38 C.F.R. § 3.303(a)
and (d) as to evidence that he experienced lupus symptoms during active duty. R. at 422-23. In
February 2014, the Board remanded the earlier-effective-date claim, instructing the RO to
adjudicate the CUE motion. R. at 416-18. In May 2016, the RO denied the CUE motion. R. at 378-
80; see R. at 362-64 (notification letter).
In August 2016, the veteran's counsel requested a copy of the veteran's claims file under
the Privacy Act, 5 U.S.C. § 552a. R. at 354-55. In March and November 2017, Mr. Davis, through
counsel, argued, as relevant here, that the RO had ignored the February 2014 Board remand order
to adjudicate the pending CUE motion. R. at 332-35 (March 2017), 282-83 (November 2017). In
April 2018, VA fulfilled the Privacy Act request. R. at 276.
2
In an earlier appeal to this Court, Mr. Davis argued, for reasons not relevant here, that the May 2004 RO
decision was not final, an argument the Court rejected. Davis v. McDonough, 34 Vet.App. 131, 132 (2021), appeal
dismissed, 2023 WL 1987940 (Fed. Cir. Feb. 14, 2023). Nevertheless, the Court remanded the appeal for the Board
to determine whether reconsideration of Mr. Davis's original claim was warranted under 38 C.F.R. § 3.156(c). Davis,
34 Vet.App. at 139-40.
2
In December 2018, Mr. Davis, through counsel, attempted to file an NOD as to the May
2016 RO denial of the CUE motion, stating, in part, that counsel did not receive notice of the RO
decision until VA fulfilled the Privacy Act request. R. at 209-10. Counsel further stated that,
although counsel sent numerous correspondences to VA requesting action on the pending CUE
motion, he received no response. R. at 210.
In January 2019, the RO informed Mr. Davis that the December 2018 NOD was not timely
filed. R. at 186-89. Later that month, Mr. Davis filed an NOD as to the RO's January 2019
timeliness determination. R. at 181-82. In June 2019, the RO issued a Statement of the Case (SOC)
and informed Mr. Davis that he could opt into the AMA. R. at 132-35. Of note, the AMA opt-in
notice stated that, if Mr. Davis wished to file a VA Form 10182, he could send that form to the
Board. R. at 135 (providing the Board's postal address and fax number (844-678-8979)).
On August 14, 2019, Mr. Davis faxed a VA Form 10182 to the Board, indicating that he
was opting-in to VA's modernized review system and seeking to continue his appeal to the Board.
R. at 88; see R. at 132-35 (June 2019 SOC explaining the AMA opt-in process). Mr. Davis chose
the additional evidence docket, which, as VA Form 10182 provided, meant that Mr. Davis had
"additional evidence in support of [the] appeal that [he] will provide within the next 90 days." Id.
The VA Form 10182 header indicates that counsel faxed the form to the Board's fax number. Id.
(listing an outgoing fax number of (844) 678-8979 and stating "VA Claims Intake Center – Date
(08142019) – Source BVA Fax"); see R. at 132-35; Board of Veterans' Appeals, Customer Service,
available at https://www.bva.va.gov/CustomerService.asp (listing the Board's fax number as
1-844-678-8979) (last accessed February 13, 2023).
On September 9, 2019, written Board correspondence informed Mr. Davis that the Board
had received his VA Form 10182 and that he had "90 days from the date of the Board's receipt of
[his] Board Appeal (VA Form 10182) to submit new evidence." R. at 86-87. On September 12,
2019, Mr. Davis, through counsel, acknowledged receipt of the Board letter and requested "that
the Board postpone making any decision for the full 90 days from the date the Board received" the
VA Form 10182. R. at 83 (emphasis removed). Counsel asserted that the day the Board received
his VA Form 10182 NOD was September 9, 2019, and indicated that 90 days would expire on
December 6, 2019. Id. On December 5, 2019, Mr. Davis, through counsel, submitted a brief to the
Board along with evidence in support of his appeal as to the timeliness of the December 2018
NOD. R. at 17-56.
3
In the July 2020 decision on appeal, the Board found that the 90-day window to submit
evidence began upon receipt of Mr. Davis's VA Form 10182 NOD on August 14, 2019—not when
the Board mailed its September 9, 2019, acknowledgement that it had received his VA Form 10182
NOD. R. at 7. Because the Board found that Mr. Davis's December 5, 2019, evidence submission
fell outside the 90-day window (which, according to the Board, ended on November 12, 2019), it
concluded that it was unable to consider that evidence. R. at 7-8. The Board concluded that
Mr. Davis's December 2018 NOD was not timely filed as to the May 2016 RO decision denying
the CUE motion. R. at 8-10. This appeal followed.
II. ARGUMENTS
Mr. Davis argues that the Board made an error of law when it concluded that it received
his VA Form 10182 on August 14, 2019, and, by extension, that the Board erred in determining
that the 90-day window to submit evidence ended on November 12, 2019. Appellant's Brief (Br.)
at 5-12. He asserts that the plain meaning of "receipt" in section 7113(c) is "taking physical
possession" of a document and that "receipt" in section 7113 must differ from "filing" in 38 U.S.C.
§ 7105(a). Id. at 8; Oral Argument at 7:58-9:34. To that end, Mr. Davis asserts that, although he
faxed his VA Form 10182 NOD on August 14, 2019, the Board did not "receive" or "take physical
possession" of the NOD until VA's Evidence Intake Center (EIC) uploaded the document to his
electronic claims file and the Board acknowledged receipt on September 9, 2019. Appellant's Br. at
10-12; Oral Argument at 29:00-32:55. In the alternative, he argues that the evidence submitted in
December 2019 was constructively before the Board. Appellant's Br. at 21-24; Oral Argument at
1:04:47-1:08:22.3
The Secretary argues that the Board plausibly determined that it received Mr. Davis's VA
Form 10182 NOD on August 14, 2019, the date Mr. Davis's counsel faxed the form to the Board.
Secretary's Br. at 16-19. He argues that the evidence submitted on December 5, 2019, more than
90 days after August 14, 2019, was untimely and that the Board correctly refused to consider it.
Id.; Oral Argument at 38:44-39:43. Additionally, he argues that the Board did not otherwise have
constructive possession of the late-submitted evidence because it was either not relevant or could
3
Mr. Davis makes no additional assertions of Board error. Oral Argument at 35:04-36:24. Thus, the Court
deems other arguments abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1999) (explaining that the Court has
discretion to deem unargued issues abandoned).
4
not reasonably have been expected to be part of Mr. Davis's administrative record. Secretary's Br.
at 10-15; Oral Argument at 52:50-59:31.
III. ANALYSIS
A. Legal Landscape
Under the AMA, "appellate review shall be initiated by the filing of a notice of
disagreement in the form prescribed by the Secretary," specifically, VA Form 10182. 38 U.S.C.
§ 7105(a). "Notices of disagreement shall be filed with the Board." 38 U.S.C. § 7105(b)(2)(C).
When appealing to the Board, claimants must choose one of three Board dockets:
"hearing," "additional evidence," or "direct review." 38 U.S.C. § 7105(b)(3)(A)-(C); see Aviles-
Rivera v. McDonough, 35 Vet.App. 268, 273 (2022). Each Board docket has different restrictions
on the evidentiary record that will be before the Board and the period during which claimants may
submit additional evidence. 38 U.S.C. § 7113(a)-(c). As to the additional evidence docket, the
evidentiary submission window closes "90 days following receipt of the" VA Form 10182 NOD.
38 U.S.C. § 7113(c)(2)(B).
The section 7113(c) implementing regulation is 38 C.F.R. § 20.303. See VA Claims and
Appeals Modernization, 84 Fed. Reg. 138, 155-57 (Jan. 18, 2019) (final rule). The regulation
largely parrots the statute, stating in pertinent part that, for cases on the additional evidence docket,
the evidentiary record includes evidence submitted by the claimant or representative with the NOD
or within 90 days following receipt of the VA Form 10182 NOD. 38 C.F.R. § 20.303(b)(1) (2022).
Board determinations regarding the date of receipt of a VA Form 10182 NOD are findings
of fact that the Court reviews under the "clearly erroneous" standard of review. See 38 U.S.C.
§ 7261(a)(4). Accord Marsh v. Nicholson, 19 Vet.App. 381, 384 (2005). "A factual finding 'is
"clearly erroneous" when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey
v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948)).
B. Receipt of Mr. Davis's VA Form 10182 NOD
The Board found that Mr. Davis's AMA NOD was received on August 14, 2019, the date
the veteran's counsel faxed it to the Board's fax number. R. at 7 ("It is clear from the NOD itself
that it was transmitted via facsimile from the office of the [v]eteran's attorney on August 14,
5
2019[,] and received on the same day."). Mr. Davis does not dispute that he faxed the AMA NOD
to the number identified as the Board's fax number on August 14, 2019, but he argues that the
NOD was not received by the Board on that date. The veteran's arguments are unpersuasive.
Relying on Black's Law Dictionary definitions, Mr. Davis notes that, as applied to NODs,
"file" refers to the delivering of the NOD whereas "receipt" means the act of taking possession
over the NOD. Appellant's Br. at 7-8; see File, BLACK'S LAW DICTIONARY (11th ed. 2019) ("To
deliver a legal document to the court clerk or record custodian for placement into the official
record."); Receive, BLACK'S LAW DICTIONARY ("To take (something offered, given, sent, etc.); to
come into possession of or get from some outside source."). Using these definitions, he argues that
the two words are not synonymous and that Congress acted intentionally in section 7113(c) when
it used the Board's "receipt" as the event triggering the 90-day evidence submission window.
Appellant's Br. at 8-10. To that end, he argues that the Board received his VA Form 10182 NOD
on September 9, 2019, the date the EIC uploaded the form to his claims file and the Board
acknowledged receipt of the NOD, as opposed to August 14, 2019, the date he faxed it. Id. at 10-
12.4
But even accepting the argument that "file" and "receipt" refer to discreet actions,
Mr. Davis fails to demonstrate why such a distinction is significant in his case. In other words,
although he argues that the dates of filing and receipt are not necessarily the same, he fails to
explain how the two dates are different in his case. Mr. Davis advances arguments regarding the
plain language and congressional intent of section 7113(c), specifically comparing and contrasting
that language to that found in the Board's and the Court's statutory mailbox rules, 38 U.S.C.
§ 7105(b)(1)(B) and 38 U.S.C. § 7266(c) respectively. Appellant's Br. at 8-9. But he fails to
explain why any purported distinction in those statutes—statutes relevant only to mailed
documents—is significant in his case because he faxed his form to the Board and did not mail it.
See R. at 88 (showing the outgoing fax number). Mr. Davis acknowledges that he was required to
file VA Form 10182 NOD with the Board, Oral Argument at 25:55-26:03, that he faxed the form
to the Board using the appropriate fax number, id. at 12:40-12:45, and that the Board would accept
a timely faxed form as properly filed, id. at 27:08-27:44.
4
More specifically, Mr. Davis argues that the Board received the NOD at some undefined point after
August 14, 2019, and because the only evidence that confirms actual receipt is dated September 9, 2019, that date
begins the 90-day period. Id. at 10-12; see R. at 83.
6
The veteran's acknowledgements in this regard are consistent with the Board's finding that
it was clear from the received copy of the NOD itself that it was faxed from the office of the
veteran's attorney on August 14, 2019, and received on the same day. R. at 7. It is commonly
understood that when a document is successfully transmitted between two fax machines, the
document is sent and immediately received. See Laouini v. CLM Freight Lines, Inc., 586 F.3d 473,
478 (7th Cir. 2009) (noting that a successful fax confirmation means that "the two fax machines
have performed an electronic 'handshake' and that the data has been transmitted from one machine
to the other"); see also id. (quoting INFORMATION SECURITY MANAGEMENT HANDBOOK 227
(Harold F. Tipton & Micki Krause eds., 6th ed. 2008), for the proposition that one advantage of
fax transmission "is that the sender immediately knows if the transmission was successful").5
Mr. Davis attempts to circumvent the Board's factual conclusion by arguing that, although
he faxed the AMA NOD on August 14, 2019, the form was first routed to the EIC for uploading
to the veteran's electronic claims file. He argues that the Board did not take possession over the
NOD until uploading was complete. Under this process, Mr. Davis argues the Board was not made
aware of his VA Form 10182 NOD until the EIC uploaded it.
Mr. Davis's arguments in this regard are underdeveloped. The Board uses the EIC to collect
filed documents, including VA Form 10182 NODs, and to upload those documents to individual
claims files. Mr. Davis argues that the EIC is not part of VA but is instead a facility contracted by
VA, Reply Br. at 3 n.1, but he fails to explain why such a distinction is material or why the Board's
delegation of ministerial acts is significant. And although he argues that documents faxed to the
Board's fax number are directly routed to the EIC, id. at 3; Oral Argument at 14:33-15:13, he fails
to reconcile that argument with his assertion that he properly filed his AMA NOD with the Board
under section 7105(b)(2)(C). Finally, although he argues that the Board was not aware of his NOD
until it was uploaded by the EIC, he fails to explain how the Board's awareness of the NOD is
5
We acknowledge that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has not yet
followed its sister courts in adopting a presumption that a sender's fax confirmation sheet produces a rebuttable
presumption of receipt, stating in part, that "[p]roof of message exit from a transmitting machine cannot serve as a
proxy for proof of actual receipt of the sent message by a remote receiving terminal." Riley & Ephraim Const. Co.,
Inc. v. United States, 408 F.3d 1369, 1372 (Fed. Cir. 2005). However, that case involved a contract dispute where
objective indicia of receipt were required and the sender had failed to produce a fax confirmation sheet, so the Federal
Circuit expressly declined to address application of a presumption of receipt. Id. Moreover, the Board here did not
infer the date of receipt from Mr. Davis's fax confirmation sheet, but instead relied on the received copy of the faxed
AMA NOD with the date of transmission clearly marked in the header. See R. at 88.
7
relevant to the date of its receipt, particularly as receipt of Mr. Davis's NOD required no action by
the Board; in fact, it required the Board to wait at least 90 days to decide his appeal.6 Without
further explanation from Mr. Davis regarding any purported distinction between the Board and the
EIC for purposes of receiving his AMA NOD, the Court cannot agree that Mr. Davis has
demonstrated error in the Board's finding that the NOD was received on August 14, 2019. See
Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain
underdeveloped arguments).
Accordingly, it follows that Mr. Davis fails to demonstrate clear error in the Board's finding
that the 90-day period to submit additional evidence closed on November 12, 2019, and its ultimate
finding that the evidence submitted by Mr. Davis on December 5, 2019, was not timely submitted.
C. Constructive Possession
Mr. Davis alternatively argues that three documents pertinent to the timeliness issue on
appeal were constructively before the Board when it made its decision, Appellant's Br. at 227: (1) a
2017 Government Accountability Office (GAO) report entitled Veterans Affairs: Actions Needed
to More Effectively Manage Outgoing Mail (GAO-17-581), documenting the lack of VA
management of outgoing mail, see R. at 33-55; (2) two June 2019 letters from Mr. Davis's counsel
to VA, complaining that he did not receive certain VA correspondence related to other cases, see
R. at 21-24; and (3) the "Chisholm" and "Rauber" affidavits cited by this Court in Romero v. Tran,
33 Vet.App. 252 (2021), and submitted to VA by Ms. Romero in conjunction with her own claim.8
Mr. Davis argues that even if this evidence, attached to his December 2019 Board brief, was not
timely received by the Board, it nevertheless had constructive possession of the evidence and
should have considered it. Appellant's Br. at 21-24; Reply Br. at 5-9.
6
We note that in its final rule implementing § 20.303, the corresponding regulation for section 7113(c), VA
specifically rejected a commenter's suggestion that the 90-day evidentiary submission window should begin when the
Board acts to notify a claimant that an NOD was received. 84 Fed. Reg. at 155.
7
Mr. Davis initially argued that an April 2019 letter sent by counsel to the Board and captioned with another
claimant's name and claims file number was constructively before the Board. Appellant's Br. at 22-25 (citing R. at
20). He later withdrew that argument. Reply Br. at 6 n.2.
8
The Chisholm and Rauber affidavits are not in the record before the Court in this appeal. As discussed by
the Romero Court, Ms. Romero submitted, within the context of her agency appeal, affidavits from Robert Chisholm
and Diane Rauber attesting to instances of VA "mailing failures," with Mr. Chisholm describing at least 863 instances
to his law firm and Ms. Rauber describing 272 instances to the National Organization of Veterans' Advocates, Inc.
Romero, 33 Vet.App. at 256-57.
8
A claimant must satisfy several requirements to show constructive possession. First, the
evidence at issue must pre-date the Board decision. Euzebio v. McDonough, 989 F.3d 1305, 1319
(Fed. Cir. 2021) (citing Bell v. Derwinski, 2 Vet.App. 611, 612-13 (1992)). Next, the evidence
must be within the Secretary's control, meaning the Secretary has actual or constructive knowledge
of the evidence. Id. at 1318-19 (citing Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020); Bell,
2 Vet.App. at 613), 1321. Finally, the evidence must be relevant and reasonably connected to the
veteran's claim. Id. at 1321 ("The correct standard . . . is relevance and reasonableness.").
The Federal Circuit rejected the proposition that evidence must bear a direct relationship
to the specific veteran for VA to have constructive possession of it in an individual's case, id. at
1324, and clarified that relevance is measured by whether the document tends to prove or disprove
a material fact, id. (citing AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013)). In rejecting the
direct relationship test, the Federal Circuit referenced this Court's decision in Goodwin v. West,
11 Vet.App. 494, 495-96 (1998) (per curiam), which held that documents generated by VA with
respect to other claimants, but not submitted in relation to Mr. Goodwin's claim, could not
reasonably be expected to be part of Mr. Goodwin's record. Euzebio, 989 F.3d at 1320. The Federal
Circuit also favorably cited this Court's decision in Bowey, which framed the requirement that
evidence be "reasonably expected to be a part of the record" as "whether it was 'reasonable to
expect [VA] to have investigated, gathered, and considered'" that evidence. Id. at 1326 (quoting
Bowey v. West, 11 Vet.App. 106, 109 (1998)). Both Euzebio and Bowey favored rejecting
constructive possession of evidence that was "'too tenuous'" to be relevant. Id.The Court assesses constructive possession as part of its role to ensure that the Board bases
its decision on the evidence properly within the administrative record and, thus, that its decision is
not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. at
1321-23; see 38 U.S.C. § 7261(a)(3)(A).
1. GAO Report 17-581
The primary impetus for GAO-17-581 was to examine the efficiency and cost-effectiveness
of VA's mailing practices. As of 2016, VA mailings were among the most numerous and the
costliest in the federal government. R. at 34. The report addressed all VA mailing practices and
concluded that VA utilized a fragmented process with each section of VA and each local facility
responsible for its own mail management. R. at 39, 42-46. The report concluded that VA did not
maintain agency-wide mail operations performance measures, did not manage outgoing mail
9
effectively, did not track reliable data on volume and expenditures, and did not have managers in
place with appropriate authority and responsibilities. R. at 34, 46-48.
Mr. Davis contends that GAO-17-581 was constructively before the Board and is relevant
because it "supports [his] argument that VA's mail practices were not regular" and demonstrates
VA "failed to effectively perform" its mailing. Appellant's Br. at 23 (internal quotation omitted).
But he mischaracterizes the GAO report's intent and findings. The report did not address the
accuracy or reliability of VA's mailing practices; to the contrary, it noted that VA was unable to
evaluate the consistency or accuracy of its mailing process because its management did not track
performance measures. R. at 42, 47.
But even assuming the relevance of GAO-17-581, Mr. Davis fails to explain why it would
reasonably be expected to have been constructively before the Board in his case. In Bowey, this
Court framed the reasonableness question as whether it would be reasonable to expect the
Secretary or the Board to have investigated, gathered, and considered the evidence at issue.
11 Vet.App. at 109; see Euzebio, 989 F.3d at 1326 (endorsing Bowey's framing). There, the Court
held that a mere reference in an expert opinion letter to non-VA generated evidence was
insufficient to consider that evidence constructively before the Board, because the connection to
the veteran's case was too tenuous. Bowey, 11 Vet.App. at 109. Here, it is even less reasonable for
the non-VA generated document at issue, the GAO report, to be considered constructively before
the Board in Mr. Davis's case. Prior to Mr. Davis's December 2019 out-of-time submission, and
when he was represented by current counsel, he did not mention the GAO report and it was not
mentioned in documents of record before the Board. In addition, neither he nor his counsel asserted
irregularity in VA's mailing process. Instead, in his December 2018 purported NOD and his
January 2019 NOD he simply asserted that he had not received the May 2016 RO decision and
that VA had not responded to his counsel's queries. R. at 181-82, 209-10. Without mention or
reference by Mr. Davis or his counsel as to VA mailing irregularity, and particularly considering
that the thrust of the report was VA's agency-wide cost and management inefficiencies as to
mailings, it is not reasonable for the Board in July 2020 to have considered that report in
adjudicating Mr. Davis's claim. Thus, GAO-17-581 had too tenuous of a connection to the
timeliness issue in Mr. Davis's claim for it to have been in the Board's constructive possession. See
Bowey, 11 Vet.App. at 109.
10
2. June 2019 Letters
Mr. Davis argues that letters his counsel sent to the VBA Director of Compensation Service
and the Board "Director" detail 47 instances between December 2015 and May 2019 where his
law firm did not receive VA correspondences. R. at 21-22 (detailing 39 instances), 23-24 (detailing
8 instances). He argues that both letters are relevant because they document irregularity in VA
mailings to his counsel.
Mr. Davis fails to persuasively demonstrate that either letter could reasonably be expected
to be part of his administrative record. He argues both that the letters were not meant to be
associated with individual claims files, Appellant's Br. at 23; Reply Br. at 7-9, and that the letters
reasonably could be expected to be associated with his individual claims file. Aside from the fact
that these arguments are contradictory, it is unclear to the Court why counsel's letters sent to VA
administrators, which were not sent to VA adjudicators or intended to be associated with individual
claimants' files, would be expected to be associated with Mr. Davis's file.
Moreover, Mr. Davis fails to persuade the Court that it would be reasonable for the Board
to have investigated, gathered, and considered the June 2019 letters in conjunction with his appeal.
See Bowey, 11 Vet.App. at 109. Prior to Mr. Davis's December 2019 submission, there was nothing
in the record mentioning or alluding to VA irregular mailings in general or to VA irregular mailings
to his counsel. Instead, Mr. Davis's December 2018 purported NOD and his January 2019 NOD
only assert that he did not receive the May 2016 RO decision and that VA did not respond to
counsel's inquiry letters. R. at 181-82, 209-10. With no suggestion of a pattern of VA mailing
irregularity with regard to his counsel, and with no suggestion of a more general problem with VA
mailings, it would not have been reasonable for the Board to have gathered and associated with
his file evidence of a VA mailing irregularity as to his counsel.9 Thus, the Court concludes that the
June 2019 letters are not reasonably related to Mr. Davis's claim and were not constructively before
the Board.
9
Although not a factor typically considered for constructive possession, the Court notes that Mr. Davis's
counsel, who drafted the June 2019 letters, did not timely submit his letters to be considered in support of Mr. Davis's
appeal. See, e.g., United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) ("[A]s a general rule, our system 'is
designed around the premise that [parties represented by competent counsel] know what is best for them, and are
responsible for advancing the facts and argument entitling them to relief.'" (quoting Castro v. United States, 540 U.S.
375, 386 (2003)) (Scalia, J., concurring in part and concurring in the judgment) (second alteration in original)).
11
3. Chisholm and Rauber Affidavits
The veteran's argument that the Chisholm and Rauber affidavits could be reasonably
expected to be associated with his file is largely based on the Romero Court's discussion of these
same affidavits. Appellant's Br. at 24. Romero involved a late-filed VA Form 9 and the Court in
that case addressed whether evidence the veteran timely submitted to the Board, including the
Chisholm and Rauber affidavits and the GAO report, demonstrated irregular VA mailing practices
sufficient to rebut the presumption of regularity. 33 Vet.App. at 254-56. The Romero Court made
no determination of the import of this evidence. Id. at 265 n.110. In any event, we stress that
Mr. Davis's case presents a different question: whether the Board should have considered the
Chisholm and Rauber affidavits (and the GAO report) as relevant and reasonably connected to
Mr. Davis's case such that it constructively possessed them and was obligated to have considered
them in its adjudication even though Mr. Davis did not mention or submit this material himself.
We first note that Romero issued in January 2021, 6 months after the Board denied
Mr. Davis's appeal.10 Thus, Mr. Davis's assertion of constructive possession cannot be based on
Romero's discussion of the affidavits.
Second, Mr. Davis is incorrect that his December 2019 brief to the Board pointed to the
Chisholm and Rauber affidavits. Appellant's Br. at 22. The affidavits were neither referenced in
nor appended to his December 2019 Board brief, see R. at 30 (listing attachments), and his Board
brief never mentioned VA mailing practices regarding other law firms. Thus, the Court concludes
that Mr. Davis's brief to the Board did not point to these affidavits, and the veteran's assertion of
constructive possession of the affidavits as reasonably connected to his case via his December
2019 Board brief must fail.
Mr. Davis next asserts that the affidavits could be reasonably expected to be associated
with his file because they were known by "VA at large" when Ms. Romero appealed her Board
decision to this Court in June 2019. Reply Br. at 7; see Appellant's Br. at 23. However, he provides
no support that VA at large was aware of these affidavits or their content, as opposed to a discrete
group of VA officials to whom the affidavits were sent and those employees who were involved
in Ms. Romero's Board and Court appeals.
10
The Board denied Mr. Davis's appeal in July 2020, and Romero was issued in November 2020 and
withdrawn and reissued in January 2021. Romero, 33 Vet.App. at 254-55. Moreover, despite Mr. Davis's assertion to
the contrary, the Romero Court clearly stated that it made no conclusion whether the evidence in that appeal was
sufficient to demonstrate widespread VA mailing problems. Id. at 265 n.110.
12
Moreover, contrary to his arguments, these affidavits, and similarly GAO-17-581, are not
of the same ilk as the National Academy of Sciences (NAS) reports. As the Federal Circuit
explained in Euzebio: "The importance and relevance of the NAS Reports to Agent Orange claims
are well-known and well-established. . . . [They] exist, by congressional mandate, to give the VA
necessary 'independent scientific review of the available scientific evidence regarding associations
between diseases and exposure to dioxin and other chemical compounds in herbicides.'" 989 F.3d
at 1320 (quoting Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11 (1991)); see Aviles-
Rivera, 35 Vet.App. at 272-73 (discussing history of NAS Reports). Because the NAS reports were
mandated by the Agent Orange Act, which was codified in part at 38 U.S.C. § 1116, Euzebio,
989 F.3d at 1320, there is no dispute that Board adjudicators are aware of them, id. at 1325. Neither
the affidavits nor GAO-17-581 have the same profile or relevance to adjudication as the NAS
Reports. Thus, the Court cannot accept Mr. Davis's argument in this regard.
Therefore, the Court must conclude that the Chisholm and Rauber affidavits could not
reasonably be expected to have been associated with Mr. Davis's record, and the requirements for
constructive possession are not met. See Bowey, 11 Vet.App. at 109.
4. Mr. Davis's December 2019 Brief to the Board
Mr. Davis argues that, regardless of the evidentiary record restriction, the Board was not
precluded from considering his December 2019 brief to the Board that included discussion of
GAO-17-581 and the June 2019 letters. 11 He contends that this "argument is not evidence."
Appellant's Br. at 21-22 (citing 84 Fed. Reg. at 156). The Board addressed the arguments in the
December 2019 brief but found that they relied almost exclusively on information submitted after
the evidence submission window closed. R. at 6-7, 9.
Essentially, Mr. Davis is arguing that the December 2019 brief established relevance and
reasonableness of GAO-17-581 and the June 2019 letters sufficient to trigger constructive
possession. But the first mention of GAO-17-581 and the June 2019 letters in the record before
the Court is the December 2019 brief to the Board. And although Mr. Davis asserted nonreceipt
of the May 2016 RO decision in his December 2018 purported NOD, R. at 210, and in his January
2019 NOD as to VA's timeliness determination, R. at 182, neither of those documents referenced
GAO-17-581 or mailing discrepancies to counsel's law firm.
11
Mr. Davis again asserts that the December 2019 brief to the Board referred to the Chisholm and Rauber
affidavits. But because his Board brief did not mention those affidavits, the Court will not address them further.
13
Thus, insofar as Mr. Davis seeks to rely on the December 2019 brief to establish a material
fact—namely, the relevance of GAO-17-581 and the June 2019 letters—the December 2019 brief
would function in this regard as evidence. See Aviles-Rivera, 35 Vet.App. at 277 (noting that
evidence is something that tends to prove or disprove the existence of an alleged fact (citing
BLACK'S LAW DICTIONARY)). And because, as the Board concluded, the evidence submission
window closed on November 12, 2019, the Board could not consider the December 2019 brief to
establish the relevance or reasonableness of GAO-17-581 and the June 2019 letters. See 38 U.S.C.
§ 7113(c). To conclude otherwise would effectively circumvent AMA record restrictions as it
would enable veterans to "create" constructive possession of evidence where actual possession
would be prohibited under section 7113(c). Accord Aviles-Rivera, 35 Vet.App. at 278-79 (holding
that creating a loophole in the AMA record restriction rules would be contrary to congressional
intent).
The constructive possession doctrine ensures that the record before the Board includes
relevant evidence that VA reasonably would have investigated, gathered, and considered. See
Bowey, 11 Vet.App. at 109; see also Euzebio, 989 F.3d at 1325 n.11 (noting that "the constructive
possession doctrine [compels] . . . that the VA and the Board fulfill its statutory duty to gather and
weigh all relevant evidence in reaching its determination"). But until Mr. Davis raised the issue in
his December 2019 Board brief, nothing in the record suggested that the reliability of mail delivery
would be relevant to his case. Thus, it was not arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law for the Board to refuse to consider evidence supporting
Mr. Davis's December 2019 argument that the presumption of regularity had been rebutted—
because that evidence was not properly before the Board.
D. 38 C.F.R. § 3.156(b)
Along with his constructive possession argument, Mr. Davis argues that the Board should
have considered the June 2019 letters pursuant to § 3.156(b). Appellant's Br. at 24-25. That
regulation provides that, for legacy appeals, new and material evidence received prior to the
expiration of the appeal period will be considered as having been filed in connection with the
pending claim. 38 C.F.R. § 3.156(b) (2022). The veteran argues that the June 2019 letters were
new and material evidence sent to VA shortly after the RO mailed him the SOC and prior to the
expiration of the appeal period, thus implicating § 3.156(b). Appellant's Br. at 24. This argument
14
is unpersuasive because, as we have explained, the June 2019 letters were not actually or
constructively before VA in Mr. Davis's case. Accordingly, his argument must fail.
E. Detrimental Reliance and Fair Process
Finally, Mr. Davis argues that he detrimentally relied on the September 9, 2019, Board
letter acknowledging receipt of his VA Form 10182 and the Board's failure to inform him of the
date his AMA NOD was received deprived him of fair process. Oral Argument at 33:27-34:35. He
supports this argument by referring to his September 12, 2019, letter to the Board memorializing
his understanding that the VA Form 10182 was received on September 9, 2019. See R. at 83.
However, the Court finds these arguments unpersuasive as Mr. Davis's assertions of reliance are
not reasonable.
The Board is obligated to provide fair process to appellants in the adjudication of their
claims. Smith v. Wilkie, 32 Vet.App. 332, 337 (2020) (citing Thurber v. Brown, 5 Vet.App. 119(1993)). Consistent with Congress's AMA goal of streamlining the appeals process, section
7113(c) provides a limited 90-day window within which to submit evidence. See Cook v.
McDonough, __ Vet.App. __, __, 2023 WL 3488255, at *4-6 (May 17, 2023); see also Aviles-
Rivera, 35 Vet.App. at 279-80.
Here, Mr. Davis was informed on VA Form 10182 that by selecting the "additional
evidence" Board docket, he had 90 days to submit additional evidence. R. at 88. He acknowledges
that he, through counsel, faxed his VA Form 10182 to the Board's fax number on August 14, 2019,
with the understanding that it would be accepted as filed. Oral Argument at 12:40-12:45, 25:55-
26:03, 27:08-27:44. The Board found that the VA Form 10182 was faxed and received on the same
day. R. at 7. As noted above, Mr. Davis fails to demonstrate clear error in the Board's finding
regarding the date of receipt and that the 90-day evidence submission window began on August 14,
2019. See Laouini, 586 F.3d at 478.
As noted, Mr. Davis argues that the September 9, 2019, letter acknowledging receipt of his
VA Form 10182 represented that it received the VA Form 10182 on that date and that he was
entitled to rely on that representation. Appellant's Br. at 10; Oral Argument at 33:27-34:35. In the
decision on appeal, the Board concluded that the September 9, 2019, acknowledgment letter did
not suggest a different date of receipt of the AMA NOD rather than August 14, 2019. R. at 7. The
Court agrees that the acknowledgement letter contained no express or implied statement that the
Board received the VA Form 10182 on September 9, 2019. Thus, Mr. Davis's assertion that the
15
September 9, 2019, letter was misleading and that he relied on the Board letter as reflecting a date
of receipt is unsupported. See Oral Argument at 27:08-27:44 (counsel's acknowledgement that he
faxed the VA Form 10182 to the Board fax number on August 14, 2019, with the understanding
that the Board would receive it through that method). Accord Williams v. Wilkie, 32 Vet.App. 46,
56-58 (2019) (rejecting appellant's misleading notice argument where it was based on the veteran's
own regulatory misinterpretation); Edwards v. Peake, 22 Vet.App. 29, 34-35 (2008) (rejecting
appellant's misleading notice argument where it was based on the veteran's misinterpretation of
the notice, which was "inconsistent with the clear notice" VA provided regarding the submission
of additional evidence), aff'd sub nom. Edwards v. Shinseki, 582 F.3d 1351 (Fed. Cir. 2009).
V. CONCLUSION
After considering the parties' briefs, oral argument, the record on appeal, and the governing
law, the Court AFFIRMS the July 8, 2020, Board decision that found that a December 2018 NOD
was not timely filed.
FALVEY, Judge, concurring: I fully agree with the Court's opinion. I only write separately
to highlight some considerations for deciding whether evidence is constructively before the Board
and to offer some guidance for how this inquiry turns on relevancy and reasonableness. See
Euzebio v. McDonough, 989 F.3d 1305, 1321 (Fed. Cir. 2021).
Surprisingly few recent precedential decisions guide our consideration. For example, in
Euzebio, the Federal Circuit ultimately left whether the NAS report was constructively part of the
record up to us to decide on remand. Id. at 1324. And our conclusion that the report was
constructively of record came in a nonprecedential decision. Euzebio v. McDonough, No. 17-2879,
2021 WL 2124303, at *3 (Vet. App. May 26, 2021). Helpfully, today's panel decision offers
additional clarity about constructive possession.
As we continue grappling with the doctrine, the NAS report at issue in Euzebio serves as a
useful reference point when considering whether some documents are constructively part of the
record. Recall that the Federal Circuit explained that "[t]he importance and relevance of the NAS
Reports to Agent Orange claims are well-known and well-established. . . . [they] exist, by
congressional mandate, to give the VA necessary 'independent scientific review of the available
scientific evidence regarding associations between diseases and exposure to dioxin and other
16
chemical compounds in herbicides.'" Euzebio, 989 F.3d at 1320. The NAS reports are so widely
known that there was no dispute that the Board knew of them at the time of the Board decision.
Id.
But none of the documents Mr. Davis argues about are in the same league as the NAS
report. The closest he gets is with the GAO report, which ultimately tells us nothing about how
likely it is that VA failed to send a document to a claimant. Thus, the GAO report is not relevant
nor is it reasonable to expect that a line adjudicator would know about it or consider it when
deciding the claim. Similar problems doom the rest of the records.
Until Mr. Davis raised the issue well after the closing of the record, nothing in the record
suggested that VA's mailing practices would be germane in his case. And even if the matter had
been raised, it is not reasonable to expect that letters sent by individual attorneys to VA leadership
are so widely known to the agency as to expect that they would be considered and included in the
file of all veterans who claim they did not receive a document.
The bottom line is, constructive possession is not a "get-out-of-submitting-evidence" card.
Instead, it is a tool to make sure that relevant evidence—evidence that tends to prove or disprove
a material fact—is included in the record when it can be reasonably expected that VA would have
"investigated, gathered, and considered" that evidence. Bowey v. West, 11 Vet.App. 106, 109
(1998).
To this end, the inquiry can include several considerations. Why was the document created?
How did VA get it? Is the document so widely known that we can presume VA adjudicators are
aware or should be aware of it? If VA knows about the document, is the document relevant to how
VA adjudicates claims? Is this the kind of document we would have expected VA to seek out under
an applicable duty to assist if the veteran mentioned it to VA? Would we expect VA to address
this kind of evidence if it was in the file? This is by no means an exhaustive list. But if the answer
to most of these or similar question is "no", then odds are pretty good that the document was not
constructively before VA.
Thus, a widely cited report established by Congress to address the relationship between
herbicides and service comes in when the claim involves questions about whether herbicides
caused the veteran's disability. But anecdotes about nonreceipt of mail from advocates submitted
in other cases or sent to VA leadership are out; they are not things we would expect VA
adjudicators to be aware of or to investigate and consider in individual cases. The same is true of
17
a GAO report obtained to address the efficiency of VA's mailing practices and not dealing with
whether VA fails to send claim documents to claimants, it is simply not relevant. In fact, even if
the report had actually been in the record, I would not fault the Board for not addressing it; the
report does not deal with whether VA failed to send claim documents to veterans—the issue Mr.
Davis cares about. "[T]he Board does not have to discuss all the evidence, but it must discuss the
relevant evidence." Miller v. Wilkie, 32 Vet.App. 249, 260 (2020).
In the end, the documents offered by Mr. Davis are largely irrelevant. And in any case, I
would not reasonably expect VA to include them as part of the record in his appeal.
18