Cowan: Notice under the AMA can be in the letter, the decision, enclosures, or some combination.

Cowan v. McDonough, 35 Vet.App. 232 (2022)

HELD: The notice required by 38 USC § 5104A can come in the form of the notice letter, the rating decision, the enclosures, and/or any combination of these documents.

Summary: In a RAMP decision, VA provided favorable findings for only one portion of the relevant rating period - and the accompanying letter provided the same information about obtaining evidence as a legacy notice letter. The veteran appealed to the Court, arguing that the decision and notice were defective under 38 USC § 5104 - and that without proper notice, the veteran couldn’t make an informed choice about which AMA lane to choose.

The Court reviewed the language and history of § 5104 and found that it did not specify the form of the required notice. VA filled this statutory “gap” with 38 C.F.R. § 3.103(f), which allows notice to be provided in the letter, enclosures, or a combination of the two. Unfortunately, the Board didn’t make any factual findings regarding the adequacy of teh notice contained in VA’s decision letter and enclosures - so the Court remanded for the Board to make these findings in the first instance.

Appealed to Federal Circuit on Sept. 20, 2022.