Summary
The United States Court of Appeals for the Federal Circuit held that a veteran satisfied the evidentiary submission requirement under 38 U.S.C. § 7113(c)(2) by clearly and timely referring in his Notice of Disagreement to evidence previously submitted to the Board and already in its possession. The court reversed the Veterans Court’s decision affirming the denial of the veteran’s service-connected benefits claims.
Topics
Practice areas
Questions Presented
- Whether evidence previously submitted to the Board in another appeal is submitted with a later Notice of Disagreement when the claimant timely and clearly refers to that evidence, which is already in the Board's possession, in the later appeal.
Holdings
- When a claimant previously submits physical evidence to the Board in one appeal and then timely and clearly relies on that same evidence in a second Board appeal by referring to it in the Notice of Disagreement, the claimant satisfies the statutory submission requirement and need not provide a second copy.
Key quotations
“When a claimant submits a physical copy of evidence to the Board in a first appeal, as Mr. Cash did here, and then timely and clearly relies on that same evidence already in the Board’s possession in a second Board appeal, the claimant has complied with the “submission” requirement and need not deliver a second copy of the evidence, even under the Secretary’s narrower definition of “submit.”” (7)
“Because of the prior submission to the Board, Mr. Cash satisfied the submission requirement of 38 U.S.C. § 7113(c)(2) through his NOD addendum, which clearly requested that the Board consider the February 2022 evidence already submitted by Mr. Cash and in the Board’s possession.” (9)
Factual background
Cash served in the U.S. Navy from January 1958 to February 1961 and was exposed to lead paint during service. He previously submitted medical articles and sworn statements to the Board in February 2022 in support of asthma and COPD claims. In a later appeal concerning prostate and GERD conditions, Cash's Notice of Disagreement addendum clearly directed the Board to that previously submitted evidence, but the Board declined to consider it because it had been submitted before the Notice of Disagreement.
Procedural history
Cash sought service-connected benefits for prostate and GERD conditions claimed as secondary to COPD. After the regional office denied the claims and a decision review officer denied supplemental claims, Cash filed a Notice of Disagreement directly to the Board and referred to evidence he had previously submitted in another appeal. The Board refused to consider that evidence, and the Veterans Court affirmed, relying on Cook v. McDonough. The Federal Circuit reversed.