Bryant: Fair process in legacy appeals at the Board

Bryant v. Wilkie, docket no. 18-0092 (Oct. 26, 2020)

HELD: When claimant informs Board of an intent to submit new evidence, Board must wait the full 90 days or until it receives the evidence before it issues an adverse decision.

SUMMARY: Under 38 C.F.R. § 20.1304(a) (2017), an appellant has 90 days following the mailing of notice that an appeal has been certified and transferred to the Board to submit additional evidence. The mailing of the notice that the appeal has been certified and transferred to the Board is the event that triggers the application of § 20.1304(a). Williams v. Wilkie, 32 Vet.App. 46, 51 (2019).

In this case, the veteran informed VA that it would submit additional evidence to the Board once he received the Board’s 90-day letter. The Board sent its 90-day letter to the veteran on September 2,1 2017 - and denied the appeal 70 days later.

The Court held that once the veteran “informed VA that he planned to submit new argument following receipt of the § 20.1304(a) notice letter, implicitly requesting that VA withhold a decision until he had done so, basic fairness obligated the Board to wait 90 days or until he submitted that argument to decide his appeal.” The Court distinguished Mr. Bryant’s case from Williams v. Wilkie, 32 Vet.App. 51 (2019), because the veteran in that case affirmatively stated that he had nothing more to submit.