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.

Aviles-Rivera: NAS Updates are evidence subject to AMA evidentiary limits

Aviles-Rivera v. McDonough, 35 Vet.App. 268 (2022)

HELD: NAS updates that were created outside the AMA evidentiary window are evidence and cannot be deemed to be constructively in the record.

Summary: In April 2017, the Board remanded the Vietnam veteran’s appeal for service connection for hypertension for an examiner to consider the NAS Updates. The examiner provided an opinion in October 2017. In June 2018, the veteran opted into the AMA through the RAMP pilot program. In September 2018, VA issued a Higher Level Review decision. In November 2018, the NAS Update links hypertension to herbicide exposure. The veteran appealed to the Board - selecting the “Direct Review” option. In April 2019, the Board continued to deny service connection, without considering the NAS Update.

On appeal to the CAVC, the veteran argued that the Board improperly ignored the 2018 NAS Update and that the examiner’s opinion was inadequate because it was rendered without the benefit of that information. The CAVC rejected these arguments, finding that because the veteran opted into the AMA and chose the “Direct Review” docket at the Board, he “agreed” that the Board would not consider any evidence after the September 2018 decision.

The Court found that the 2017 Board remand to ”consider NAS Updates” did not require VA to delay the appeal while waiting for any future updates - and also held that the AMA evidentiary review limits do not violate the principles of fair process.

This case was appealed to the Federal Circuit on July 22, 2022.