Veteranclaims’s Blog

October 14, 2021

Single Judge Application; Lang v. Wilkie, 971 F.3d; “Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.” Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020);

Filed under: Uncategorized — Tags: — veteranclaims @ 11:22 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5188
MICHAEL L. KELLY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
FALVEY, Judge: Self-represented Army veteran Michael L. Kelly appeals a September 3,
2019, Board of Veterans’ Appeals decision that denied service connection for a left knee condition.
This appeal is timely, the Court has jurisdiction to review the Board’s decision, and single-judge
disposition is appropriate. See U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23,
25-26 (1990).
Liberally construing Mr. Kelly’s informal brief, we are asked to decide whether the Board
should have addressed a treatment note attached to the veteran’s brief. See De Perez v. Derwinski,
2 Vet.App. 85, 86 (1992) (liberally construing arguments of self-represented litigants). Because
the note was generated by VA and pertained to the veteran, it was constructively before the Board
in the decision on appeal. Remand is warranted for the Board to include the treatment note in the
record and to address it in the first instance. We therefore will set aside the Board’s decision and
remand the matter for further proceedings.
I. ANALYSIS
Mr. Kelly argues that there was “documentation that was not in [the record] and not
considered” by the Board. Informal Brief (Br.) at 1. He attached to his brief a medical document
2
dated March 27, 2012, and titled “WRIISC Assessment Note.” Informal Br. Attachment.
According to VA’s website, WRIISC, which stands for War Related Injury and Illness Study
Center, is “a national program dedicated to Veterans’ post-deployment health concerns and unique
health care needs.” https://www.warrelatedillness.va.gov, visited June 14, 2021; see Euzebio v. McDonough, 989 F.3d 1305, 1323 (Fed. Cir. 2021) (allowing the Court to take judicial notice of extrarecord facts that are generally known or from sources whose accuracy cannot reasonably be
questioned). The program “is part of VA’s Post Deployment Health Services, a VA Delivered Core Service.” https://www.warrelatedillness.va.gov. The website claims that WRIISC’s “work is fundamental to VA’s mission and is rarely found outside of VA.” Id.
Our review of Board decisions is based “on the record of proceedings before the Secretary
and the Board.” 38 U.S.C. § 7252(b).
Where, as here, a dispute arises as to the content of the record and where the
documents proffered by the appellant are within the Secretary’s control and could
reasonably be expected to be a part of the record “before the Secretary and the
Board,” such documents are, in contemplation of law, before the Secretary and the
Board and should be included in the record.
Bell v. Derwinski, 2 Vet.App. 611, 612-13 (1992) (quoting 38 U.S.C. § 7252(b)). “Evidence that
‘could reasonably be expected to be part of the record’ is evidence that ‘pre-dates the [Board]
opinion’ and is relevant.” Euzebio, 989 F.3d at 1318-19 (quoting Bell, 2 Vet.App. at 612-13).
“Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran’s claim.” Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020). “If such material could be
determinative of the claim and was not considered by the Board, a remand for readjudication would be in order.” Bell, 2 Vet.App. at 612-13.
Here, we find that remand is appropriate. See 38 U.S.C. § 7252(a) (authorizing the Court
to “remand [a] matter, as appropriate”). The WRIISC assessment note that Mr. Kelly claims the
Board should have addressed is a VA-generated document that directly pertains to the veteran. See
Informal Br. Attachment. Although the veteran’s appellate arguments about the document are not
entirely clear, the document predated the Board’s decision, was “generated by the VA . . . , and . .
. can reasonably be expected to be connected to the veteran’s claim.” Lang, 971 F.3d at 1354. It
thus was constructively received by VA and should have been included in the record. See id.; see
also Euzebio, 989 F.3d at 1318-19; Bell, 2 Vet.App. at 612-13.
3
Remand is warranted for the Board to include the WRIISC assessment note in the record
and then address the note in the first instance. See Bell, 2 Vet.App. at 213; see also Hensley v.
West, 212 F.3d 1255, 1263-64 (Fed. Cir. 2000) (noting that, when a court of appeals reviews a
lower court’s decision, it may remand the case if the previous adjudicator failed to make findings
of fact essential to the decision). Because the claim is being remanded, the Court need not address
Mr. Kelly’s additional arguments that would lead to no broader remedy than a remand. See Mahl
v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand,
there is no need to analyze and discuss all the other claimed errors that would result in a remedy
no broader than a remand.”).
In pursuing his claim on remand, the veteran will be free to submit additional argument
and evidence as to the remanded matter, and he has 90 days to do so from the date of the
postremand notice VA provides. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per
curiam order); see also Clark v. O’Rourke, 30 Vet.App. 92, 97 (2018). The Board must consider
any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002); see
also Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant to entail a critical
examination of the justification for the decision.”).
II. CONCLUSION
For these reasons, the Board’s September 3, 2019, decision is SET ASIDE, and the matter
is REMANDED for further proceedings.
DATED: June 30, 2021
Copies to:
Michael L. Kelly
VA General Counsel (027)

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