Veteranclaims’s Blog

May 3, 2022

Aviles-Rivera v. McDonough, No. 19-5969(Argued September 10, 2021 Decided May 2, 2022); VA’s Rapid Appeals Modernization Program (RAMP); 11th National Academy of Sciences (NAS) Veterans and Agent Orange Update (NAS Update); evidentiary record restriction in 38 U.S.C. § 7113(a) barred the Board from considering the 11th NAS Update;

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 19-5969
VICTOR MANUEL AVILES-RIVERA, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued September 10, 2021 Decided May 2, 2022)
Robert A. Jackson, of Elk Grove, California, for the appellant.
Omar Yousaf, with whom William A. Hudson, Jr., Principal Deputy General Counsel; Mary
Ann Flynn, Chief Counsel; and Kenneth A. Walsh, Deputy Chief Counsel, were on the brief, all of
Washington, D.C., for the appellee.
Before BARTLEY, Chief Judge, and TOTH and FALVEY, Judges.
BARTLEY, Chief Judge: Veteran Victor Manuel Aviles-Rivera appeals through counsel
an August 20, 2019, Board of Veterans’ Appeals (Board) decision that denied service connection
for hypertension. Record (R.) at 3-20.1 The appeal is timely, and the Court has jurisdiction to
review the Board decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred
to a panel of this Court, with oral argument,2 to address whether the Board erred by not considering
the 11th National Academy of Sciences (NAS) Veterans and Agent Orange Update (NAS Update),
which was published after the veteran’s election into VA’s modernized review system and the
regional office’s (RO’s) higher-level review decision but before the Board issued its decision. We
hold that the evidentiary record restriction in 38 U.S.C. § 7113(a) barred the Board from
considering the 11th NAS Update
. Therefore, we conclude that the veteran’s assertions of Board
1 In the same decision, the Board denied service connection for chronic microvascular disease, dyslipidemia,
an acquired psychiatric disorder, left and right shoulder disorders, left and right elbow disorders, a neck disability, a
back disability, left side mastoiditis, maxillary and ethmoid sinus disease, bilateral hearing loss, and a skin disorder.
Because Mr. Aviles-Rivera does not challenge these portions of the Board decision, see Appellant’s Brief (Br.) at 1,
the appeal as to those issues will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc)
(declining to review the merits of an issue not argued and dismissing that portion of the appeal).
2 Aviles-Rivera v. McDonough, No. 19-5969, Oral Argument [hereinafter “Oral Argument”]. Available at
https://www.youtube.com/watch?v=ppPFq8aULp4.
2
error, which are all predicated on the Board considering the 11th NAS Update, must fail.
Accordingly, the Board decision will be affirmed.
I. BACKGROUND ON THE HYPERTENSION CLAIM
Mr. Aviles-Rivera served honorably in the U.S. Army from March 1968 to December 1969,
including service in the Republic of Vietnam. R. at 1304.
In January 2013, the veteran filed a claim for service connection for hypertension. R. at
1155-60. In May 2014, a VA RO denied the claim. R. at 1081-85. In November 2014, the veteran
filed a Notice of Disagreement (NOD), R. at 1057, and included a statement from Dr. Carlos E.
Mora Quesada, R. at 1058-62. As relevant, Dr. Mora Quesada diagnosed hypertensive
cardiovascular disease and opined that the veteran’s condition was “more probable than not” related
to his military service. Id. Following a December 2014 Statement of the Case (SOC), R. at 1013-
34, the veteran timely perfected an appeal to the Board, R. at 1010.
In April 2017, the Board remanded the claim to obtain a medical opinion regarding the
cause of the veteran’s hypertension. R. at 902-10. At that time, the Board noted that, although
Dr. Mora Quesada’s opinion lacked rationale, it was enough to trigger VA’s duty to provide an
examination. R. at 907-08 (referring to Dr. Mora Quesada as “C.M., M.D.” and citing McLendon
v. Nicholson, 20 Vet.App. 79, 81 (2006)). In its remand directives, the Board instructed the VA
examiner to “consider the NAS Updates[,] which concluded that there was ‘limited or suggestive
evidence of an association’ between hypertension and herbicide exposure.” R. at 909.
A VA examiner in October 2017 confirmed a diagnosis of hypertension, R. at 835, but
opined that it was less likely than not related to military service because of the length of time
between service and the 2006 initial diagnosis of hypertension. R. at 837-38. The examiner
reviewed the 2014 NAS Update3 and stated that, “[a]lthough the Update states that there is
suggestive evidence to link hypertension to Agent Orange exposure, there is limited evidence that
[Agent Orange] causes or aggravates [hypertension]. It also states that additional research is
warranted.” R. at 838. The RO issued a Supplemental SOC continuing the denial of service
connection in May 2018. R. at 205-13.
3 The 2014 NAS Update was published in 2016 and, at the time of the October 2017 VA examination, was
the most recent report published by NAS. See Veterans and Agent Orange: Update 2014 (2016).
3
In June 2018, Mr. Aviles-Rivera elected to participate in VA’s Rapid Appeals
Modernization Program (RAMP), selecting higher-level review for the service-connection claim.
R. at 194. In doing so, he consented to higher-level review based on the evidence submitted to VA
as of the date of his RAMP opt-in election. Id.
In September 2018, the RO issued a higher-level review decision under RAMP that denied
the hypertension claim. R. at 56-81. In February 2019, Mr. Aviles-Rivera appealed the RO decision
to the Board and opted for direct review based on the evidence of record at the time of the
September 2018 prior RO decision. R. at 33-34.
In the August 2019 decision on appeal, the Board denied service connection for
hypertension. The Board acknowledged the veteran’s RAMP election and stated that the
evidentiary record closed on June 18, 2018, the date of the election. R. at 6. In reaching its
conclusion that service connection was not warranted, the Board acknowledged that Mr. Aviles-
Rivera had a current hypertension disability and was exposed to herbicides during service in
Vietnam, but found the preponderance of the evidence weighed against a link between the two.
R. at 17-19. As to presumptive service connection, the Board stated that the Secretary had
determined that there is no positive association between herbicide exposure and hypertension. R. at 16. As to direct service connection, the Board stated that, although the 2010 NAS Update found
limited or suggestive evidence of an association between herbicide exposure and hypertension,4
the October 2017 VA examiner’s opinion5 was more probative than either Dr. Quesada’s opinion
or the NAS finding because it was provided after both an examination of the veteran and a review
of the record on appeal and is supported by citation to evidence found in the claims file and
controlling medical literature. R. at 18-19. This appeal followed.
4 Although the October 2017 VA examiner referred to the 2014 NAS Update, the Board referenced the 2010
NAS Update. Both reports concluded that there was limited or suggestive evidence of an association between herbicide
exposure and hypertension.
5 The Board refers to a November 2017 VA medical opinion, R. at 19, but this appears to be a typographic
error as the examiner provided her opinion in October 2017, R. at 837-39.
4
II. BACKGROUND ON NAS UPDATES AND THE AMA
Before discussing the specific arguments in this appeal, we provide an overview of the
NAS Update process and VA’s modernized review process, as they serve as the foundation for the
parties’ arguments.
A. NAS Updates
In the Agent Orange Act of 1991 (“Agent Orange Act”), Congress directed VA to enter
into an agreement with NAS, which was tasked to review and summarize scientific evidence
concerning exposure to herbicides used by the military in Vietnam and diseases suspected to be
associated with such exposure. Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, § 3
(Feb. 6, 1991) (originally codified at 38 U.S.C. § 316 but later renumbered as 38 U.S.C. § 1116).
NAS was to issue a report reflecting its findings and issue additional reports every few years in
consideration of updated scientific evidence. Id.; see 38 U.S.C. § 1116 Note. Following receipt of
each NAS report, the Secretary was to determine whether a presumption of service connection was
warranted for these diseases and respond either through additional rulemaking if a presumption
was warranted or by explaining why no presumption was warranted. Pub. L. No. 102-4, § 2; see
38 U.S.C. § 1116(b)-(c).
NAS issued its first report in 1994 and subsequent reports about every 2 years thereafter.
See Health and Medicine Division Reports on Agent Orange, available at
https://www.publichealth.va.gov/exposures/agentorange/publications/health-and-medicinedivision.
asp (last accessed April 20, 2022). In March 2016, NAS published its 10th Update and in
November 2018, NAS published its 11th Update. Veterans and Agent Orange: Update 11 (2018);
see Vietnam Veterans and Agent Orange Exposure – New Report, available at
https://www.nationalacademies.org/news/2018/11/vietnam-veterans-and-agent-orange-exposurenew-
report (last accessed April 20, 2022). Each NAS report classifies various diseases based on
the extent of available research into one of four hierarchal categories: sufficient evidence of an
association, limited or suggestive evidence of an association, inadequate or insufficient evidence
of an association, or no association. See, e.g., Veterans and Agent Orange: Update 11 at 6.
The sixth NAS Update was the first report to place hypertension in the “limited or
suggestive evidence of an association” category. Veterans and Agent Orange: Update 2006 (2007),
at 11. That classification was reaffirmed by the 7th, 8th, 9th, and 10th NAS Updates. See Veterans
and Agent Orange: Update 2008 (2009), at 7; Veterans and Agent Orange: Update 2010 (2012),
5
at 8; Veterans and Agent Orange: Update 2012 (2013), at 8; Veterans and Agent Orange: Update
2014 at 8. The 11th NAS Update elevated hypertension to the “sufficient evidence of an
association” category. Veterans and Agent Orange: Update 11 at 7.
B. VA’s Modernized Review System
On August 23, 2017, Congress passed the Veterans Appeals Improvement and
Modernization Act of 2017 (“AMA”), Pub. L. 115-55, 131 Stat. 1105, which “dramatically
overhauled the VA appeals process.” Military-Veterans Advocacy v. Sec’y of Veterans Affairs,
7 F.4th 1110, 1140 (Fed. Cir. 2021). Under this system, claimants within 1 year of an initial
decision by the agency of original jurisdiction (AOJ) have three options (known as “lanes”) for
administrative review: file a supplemental claim based on new and relevant evidence; request
higher-level review at the AOJ level based on the same evidentiary record; or file an NOD to
appeal the decision to the Board. Id.; see 38 U.S.C. §§ 5104B, 5104C(a), 5108; Andrews v.
McDonough, 34 Vet.App. 151, 157 (2021). When appealing to the Board, claimants have to
choose one of three Board dockets: “direct review” docket; “additional evidence” docket; or
“hearing” docket. 38 U.S.C. § 7105(b)(3); see Andrews, 34 Vet.App. at 157. In the additional
evidence and hearing dockets, claimants are permitted to submit additional evidence to the Board.
38 U.S.C. § 7113(b)-(c); see 38 U.S.C. § 7105(b)(3)(a)-(b); 38 C.F.R. §§ 20.302 (2021), 20.303
(2021). In the direct review docket, the Board reviews the appeal without additional evidence,
38 U.S.C. § 7105(b)(3)(c); 38 C.F.R. § 20.301 (2021), because in this docket “the evidentiary
record before the Board shall be limited to the evidence at the time of the decision of the [AOJ] on
appeal.” 38 U.S.C. § 7113(a); see 38 C.F.R. § 20.301.
The AMA applies to all claims for which notice of a decision is provided by the Secretary
on or after February 19, 2019. See Pub. L. 115-55, 131 Stat. at 115, § 2(x). VA regulations
implementing the AMA became effective February 19, 2019. See 38 C.F.R. § 19.2(a) (2021); see
also VA Claims and Appeals Modernization, 83 Fed. Reg. 39,818 (Aug. 10, 2018) (proposed rule),
84 Fed. Reg. 138, 138 (Jan. 18, 2019) (final rule). Congress explicitly provided VA with the
authority to operate programs to test the feasibility and advisability of the new appeal system prior
to the AMA taking effect. Pub. L. 115-55, 131 Stat. at 1119-20, § 4(a)(1); see Dolbin v.
McDonough, 34 Vet.App. 334, 336 (2021). In November 2017, VA launched RAMP as one of
these test programs. See, e.g., Comprehensive Plan for Processing Legacy Appeals and
Implementing the Modernized Appeals System, November 2017 Update, Department of Veterans
6
Affairs, at 28-30, available at https://benefits.va.gov/benefits/docs/appeals-report-201711.pdf (last
accessed April 20, 2022). RAMP began at the RO level6 and “allowed for full implementation of
the new process” to claimants with legacy appeals who wished to migrate to the new review system
prior to February 19, 2019. Id. at 29. Claimants with a pending legacy appeal could voluntarily opt
in to RAMP by withdrawing their legacy appeal and electing either the higher-level review lane
or the supplemental claim lane. Id. Accord 38 C.F.R. § 3.2400(c)(1), (d) (2021).
III. ARGUMENTS
Mr. Aviles-Rivera argues that the Board erred by failing to consider the 2018 NAS Update
and by relying on the October 2017 VA medical opinion that he asserts is inadequate in light of
the 2018 NAS Update. Appellant’s Br. at 6-14; Reply Br. at 2-7; Appellant’s Supplemental
Memorandum of Law (Supp. Memo.) at 5-6.7 First, he asserts that, despite his election into RAMP,
the April 2017 Board remand order “expanded the scope and timeframe for adding relevant and
reasonable documents in[to] the record.” Appellant’s Supp. Memo. at 7. Second, he argues that the
NAS Updates are not the type of evidence contemplated by the Board’s evidentiary record
restriction found in section 7113. Oral Argument at 17:00-19:19; 20:53-22:05. Third, he argues
that section 7113 is a claims processing statute that limits the time claimants are allowed to submit
evidence, but that the Board’s jurisdictional statute, 38 U.S.C. § 7104, is broader and mandates that
the Board consider “all evidence and material of record,” which he argues includes the 2018 NAS
Update. Id. at 8:02-11:59, 25:26-27:18, 50:10-51:48. Finally, he argues that the Board’s failure to
consider the 2018 NAS Update in his case demonstrates an unreasonable, unfair, and unjust
process that results in disparate treatment of his claim. Id. at 41:32-45:38; 46:54-48:22.
The Secretary argues that the Board properly did not consider the 2018 NAS Update and
appropriately relied on the October 2017 VA opinion in reaching its adverse decision because
Mr. Aviles-Rivera chose to pursue higher-level review and, subsequently, the direct review
6 VA operated RAMP via a phased rollout beginning with eight participating ROs. The Board began
adjudicating appeals under RAMP in October 2018. See Comprehensive Plan for Processing Legacy Appeals and
Implementing the Modernized Appeals System, November 2018 Update, Department of Veterans Affairs, at 3,
available at https://www.benefits.va.gov/REPORTS/AMA/CMR/2018/appeals-report-201811.pdf (last accessed
April 20, 2022).
7 On May 7, 2021, the Court ordered the parties to file supplemental memoranda of law following the U.S.
Court of Appeals for the Federal Circuit’s (Federal Circuit’s) issuance of Euzebio v. McDonough, 989 F.3d 1305 (Fed.
Cir. 2021) (Euzebio II), vacating and remanding sub nom. Euzebio v. Wilkie, 31 Vet.App. 394 (2019) (Euzebio I).
7
docket—thereby closing the evidentiary record. Secretary’s Br. at 9-10, 19; Secretary’s Supp.
Memo. at 4-12; Oral Argument at 29:44-30:39; 38:25-39:11. He argues that the veteran’s attempts
to create an exception to the closing of the evidentiary window—either under section 7104(a) or
by characterizing the NAS Updates as something other than evidence—are unsupported. Oral
Argument at 31:13-32:17. Finally, he argues that the veteran is not prejudiced by the adverse Board
decision as he is free to file a supplemental claim that will allow consideration of new and relevant
evidence, such as the 2018 NAS Update. Secretary’s Supp. Memo. at 12-15; Oral Argument at
32:56-33:35; see 38 U.S.C. § 5108(a).
IV. ANALYSIS
A. The Closing of the Veteran’s Evidentiary Record
Under the AMA, a claimant who is dissatisfied with an initial AOJ decision has several
options for administrative review, and the option chosen dictates the scope of the evidentiary
record to be reviewed. If a claimant chooses the higher-level review lane, the evidentiary record
that is before the higher-level adjudicator is limited to the evidence that was of record in the AOJ
decision being reviewed. 38 U.S.C. § 5104B(d). If, after receiving higher-level review, a claimant
chooses to appeal that decision to the Board and selects the direct Board review docket, the
evidentiary record that is before the Board is limited to the evidence that was of record at the time
of the AOJ decision on appeal. 38 U.S.C. § 7113(a). Thus, a claimant who chooses higher-level
review by the AOJ and then direct review by the Board will have the evidentiary record limited to
the evidence that was of record at the time of issuance of the AOJ decision under review. See
38 U.S.C. §§ 5104B(d), 7113(a).
RAMP was designed to transition claimants from the legacy system to the AMA, if they
so chose. See, e.g., Comprehensive Plan for Processing Legacy Appeals and Implementing the
Modernized Appeals System, November 2017 Update, Department of Veterans Affairs, at 29.
Claimants who elected into AMA via RAMP, as Mr. Aviles-Rivera did, were informed that the
provisions of the AMA would apply to those claims. R. at 194. Accord 38 C.F.R. §§ 3.2400(c)(1),
19.2(d)(3). When these claimants, such as Mr. Aviles-Rivera, selected higher-level review via
RAMP they were informed that “[higher-level] review will be based upon the evidence submitted
to VA as of the date of this election and VA will not seek additional evidence on [their] behalf as
part of the higher-level review.” R. at 194. Thus, veterans were informed that, if they elected into
8
AMA via RAMP and selected higher-level review, the evidentiary record would close as of the
date of their election.
In June 2018, Mr. Aviles-Rivera opted into RAMP and into the higher-level review lane,
agreeing that his claim would be reviewed based on the evidence of record at the time of his
election. R. at 194. Accord 38 U.S.C. § 5104B(d). Following the September 2018 higher-level
review decision, Mr. Aviles-Rivera chose to appeal that decision to the Board and selected the
direct review docket; at that time, he was informed that Board review of his case would be based
on the evidence of record at the time of the September 2018 prior decision. R. at 33-34; see
38 U.S.C. § 7113(a).8
Because the 11th NAS Update was published in November 2018, after Mr. Aviles-Rivera’s
June 2018 RAMP election and after the RO’s September 2018 higher-level review decision, it was
not part of the record when the RO issued its higher-level review decision. Mr. Aviles-Rivera
selected the direct review docket, R. at 33-34, agreeing that the Board would not consider
additional evidence beyond what was before the RO when it made its September 2018 decision.
Thus, given the statutory record restrictions applicable to Mr. Aviles-Rivera’s case, the Board
could not consider the 11th NAS Update in rendering its decision. See 38 U.S.C. § 7113(a).
B. The April 2017 Board Remand Order
Mr. Aviles-Rivera argues that, because the April 2017 Board order directed that on remand
a VA examiner should consider NAS Updates, all NAS Updates were constructively before the
August 2019 Board—despite the veteran’s choice to opt into the RAMP program and his elections
of higher-level and direct review with their attendant evidentiary record restrictions. Constructive
possession provides that evidence that is within VA’s control and that could reasonably be expected
to be part of the evidentiary record is constructively part of the administrative record. Euzebio II,
989 F.3d at 1319 (citing Lang v. Wilkie, 971 F.3d 1348, 1353-55 (Fed. Cir. 2020); Bell v.
Derwinski, 2 Vet.App. 611, 613 (1992)). Because the 2018 NAS Update could not reasonably be
expected to be part of the record given the circumstances of his case, the veteran’s argument is not
convincing.
8 The Board found that the evidentiary record closed as of June 18, 2018, the date of Mr. Aviles-Rivera’s
RAMP election, R. at 6; see R. at 194, rather than the date of the September 2018 higher-level review decision as per
38 U.S.C. § 7113(a). In any event, the November 2018 11th NAS Update issued well after both of those dates.
9
Although the April 2017 Board remand directed that a VA examiner “consider NAS
Updates,” R. at 909 (and specifically those “NAS Updates which concluded that there was ‘limited
or suggestive evidence of an association’ between hypertension and herbicide exposure”), that
remand order did not and could not have referred to the November 2018 11th NAS Update (which
elevated hypertension to the “sufficient evidence of an association” category) because that Update
was not in existence at that time. And even assuming for the sake of argument that Mr. Aviles-
Rivera is correct that the 2017 Board remand order should be interpreted as requiring that a VA
examiner consider later-issued NAS Updates, the subsequent VA examination took place in
October 2017, prior to issuance of the November 2018 NAS Update, and could not have considered
that Update.
Furthermore, the Board gave no indication that it intended to delay development and
readjudication on remand until further NAS Updates issued, see R. at 902-10, and the Court will
not impute such an intent as to the April 2017 Board order. It is inconceivable that the 2017 Board
remand order intended that future development and readjudication of Mr. Aviles-Rivera’s
remanded claim be delayed indefinitely until further NAS Updates issued. Such inaction on
remanded claims involving herbicide exposure would result in delay for Vietnam veterans
throughout the VA claims and appeals system and would be counter to the intent of the AMA to
fix the long delays resulting from the multiple evidence submissions and reviews in the legacy
system. See H.R. Rep. No. 115-135, at 5 (2017) (noting that under the legacy appeal system, it
could take five years to receive a Board decision); 83 Fed. Reg. at 39,818 (“[A]ppeals [under the
legacy system] are non-linear and may require VA staff to engage in gathering and receiving
evidence and re-adjudicating appeals based on new evidence[, which] . . . can add years to the
appeals process, as appeals churn between the Board and the [AOJ].”).
Furthermore, Mr. Aviles-Rivera’s RAMP opt-in election informed him that
[b]y completing this form . . . I am withdrawing all eligible pending compensation
appeals in their entirety, and any associated hearing requests, to participate in VA’s
RAMP initiative and have my eligible appeals proceed under the new process
described in the Appeals Modernization Act. I understand that I cannot return to
the current (legacy) appeals system for the issues withdrawn.
R. at 194. In choosing the higher-level review option on this form, the veteran indicated that he
understood that this “[higher-level] review will be based upon the evidence submitted to VA as of
the date of this election and VA will not seek additional evidence on [his] behalf as part of the
higher-level review.” Id. This notice provided to the veteran seriously weakens his position that
10
the April 2017 Board remand instruction to “consider the NAS Updates which concluded that there
was ‘limited or suggestive evidence of an association’ between hypertension and herbicide
exposure,” R. at 909, meant that all NAS Updates, including the 2018 Update, were constructively
before the Board in August 2019.
To summarize, after the April 2017 Board remand occurred, Mr. Aviles-Rivera elected into
AMA via RAMP and chose the higher-level review lane for his claim. The form that he completed
at that time informed him that such a choice would withdraw his appeal from the legacy system
and place it in the AMA system and limit the record before the higher-level adjudicator to the
evidence that was before VA on the date of his election. See R. at 194. These facts run counter to
the veteran’s argument concerning the 2017 Board remand order.
Moreover, in February 2019 the veteran chose to have the Board directly review the AOJ
decision based on the record that was before the AOJ in September 2018. R. at 34. But the 11th
NAS Update was published in November 2018, 2 months after the AOJ’s higher-level review
decision, so it could not have been before the higher-level adjudicator. And Mr. Aviles-Rivera’s
choice to have the Board directly review the higher-level review decision without additional
evidence meant that the Board could not consider evidence that was not of record in September
2018, including the 11th NAS Update. Therefore, Mr. Aviles-Rivera’s arguments that the April
2017 remand order gave the Board constructive possession of the 11th NAS Update are unavailing.
Given his review choices and the date of the NAS Update, the NAS Update could not reasonably
be expected to be part of the administrative record.
C. NAS Updates Are Evidence
Mr. Aviles-Rivera next argues that, because Congress mandated VA to consider NAS
Updates, the Updates are excluded from the evidentiary record restriction of section 7113(a). He
argues that the NAS Updates are mandated by Congress, making them foundational authoritative
documents that transcend evidentiary restrictions. Oral Argument at 17:00-19:19 (referring to
Euzebio I and Euzebio II). To that end, he asserts that the NAS Updates are not “evidence” as
contemplated by section 7113(a) and thus the Board is not barred by section 7113(a) from
considering the 11th NAS Update in his case. The veteran’s arguments are unpersuasive.
Evidence is defined as “[s]omething (including testimony, documents, and tangible
objects) that tends to prove or disprove the existence of an alleged fact . . . .” Evidence, BLACK’S
LAW DICTIONARY (11th ed. 2019); see, e.g., Burden v. Shinseki, 727 F.3d 1161, 1167 (Fed. Cir.
11
2013); Robinette v. Brown, 8 Vet.App. 69, 78 (1995) (both relying upon Black’s Law Dictionary’s
definition for evidence). As noted earlier, Congress ordered periodic NAS Updates to provide VA
with a summary of recent scientific research regarding diseases suspected to be associated with
herbicide exposure. Pub. L. No. 102-4, 105 Stat. 11, § 3. Mr. Aviles-Rivera fails to support his
contention that NAS Updates should not be considered “evidence,” particularly since he seeks to
use the 2018 NAS Update in precisely the manner that defines evidence: to prove his theory of
service connection, to wit, that his herbicide exposure in Vietnam caused his hypertension. See
Evidence, BLACK’S LAW DICTIONARY; see also Oral Argument at 24:26-:32, 43:54-44:46 (arguing
that the 11th NAS Update is outcome-determinative and demonstrates that service connection for
his hypertension is warranted). This very contention demonstrates that the NAS Updates are
evidentiary in nature.
Moreover, the Federal Circuit in Euzebio II specifically referenced NAS Updates in the
context of evidence, Euzebio II, 989 F.3d at 1321, 1324 n.10, as Mr. Aviles-Rivera acknowledges,
Oral Argument at 19:11-20:53. Nowhere in Euzebio II did the Federal Circuit characterize NAS
Updates as anything but evidence. And although Mr. Aviles-Rivera considers NAS Updates as
foundational documents, they are not statutory or regulatory provisions nor can they be considered
as authority that is binding on VA. Thus, the Court rejects Mr. Aviles-Rivera’s argument that NAS
Updates are not “evidence” contemplated by section 7113(a).
D. There Is No Confusion as to the Meaning of Record Evidence
Mr. Aviles-Rivera argues that, even if the Board was prohibited from reviewing the 11th
NAS Update under section 7113(a), the Board should have considered the report under section
7104(a). Section 7104(a) provides that decisions of the Board “shall be based on the entire record
of proceedings and upon consideration of all evidence and material of record and applicable
provisions of law and regulation.” Mr. Aviles-Rivera asserts that section 7113(a), which provides
that for cases on the Board’s direct review docket the evidentiary record shall be limited to the
evidence of record at the time of the AOJ decision on appeal, is a claims processing rule. In
contrast, he asserts that section 7104 is a broad jurisdictional statute that allows for consideration
of an NAS Update without regard to whether that Update was of record at the time of the AOJ
decision on appeal.
The Court agrees with the Secretary that the proper reading of these provisions is that
sections 7104 and 7113 work in concert and must be read harmoniously. Section 7104(a) does not
12
proscribe the evidence and materials that are before the Board; instead, it indicates that the Board
must consider everything that is properly in the record before it. Mr. Aviles-Rivera’s view of the
statutes would render the evidentiary record restrictions of section 7113 meaningless and
undermine Congress’s intent to impose such a restriction as part of AMA. See Andrews,
34 Vet.App. at 158 (finding no ambiguity in Congress’s intent in promulgating section 7113(a)
that in the direct review docket, the Board may not consider evidence submitted after the AOJ
decision being reviewed). Thus, we reject the veteran’s argument that Congress intended sections
7104(a) and 7113 to operate independently to the extent that section 7104(a) would serve as a
loophole to allow evidence excluded under section 7113 to enter the record.
Moreover, Mr. Aviles-Rivera overlooks a significant fact—that when Congress added
section 7113 through the AMA it made a corresponding modification to section 7104(d), requiring
that each decision of the Board include a general statement reflecting whether evidence was not
considered in making the decision because the evidence was received at a time when not permitted
under section 7113. 38 U.S.C. § 7104(d)(2)(A); see Pub. L. 115-55, 131 Stat. at 1114, § w. In other
words, Congress modified section 7104(d) to require the Board to inform claimants that evidence
received after the time prescribed in section 7113 was not considered. 9 Because Congress
expressly acknowledged in section 7104 that certain evidence would not be considered if it did not
comport with the restrictions of section 7113, the Court cannot agree with Mr. Aviles-Rivera’s
section 7104(a) argument. Thus, the veteran’s argument in this regard fails.10
E. RAMP/AMA Evidence Restrictions Do Not Violate Fair Process
Mr. Aviles-Rivera argues that principles of fair process dictate that the Board should have
considered the 11th NAS Update in his case. He argues that there is disparate treatment of veterans
like him because he is aware of at least one case where a veteran opted in to RAMP, selected the
direct review docket, and the Board remanded the case for the AOJ to consider the 11th NAS
Update. Oral Argument at 44:47-45:37, 47:31-49:41. However, he acknowledges that the basis for
9 As a result of this provision, the Board informed Mr. Aviles-Rivera, albeit referencing claims other than
hypertension, that, because additional “evidence was added to the claims file during a period of time when new
evidence was not allowed,” that evidence was not considered. R. at 6.
10 In furtherance of his argument concerning sections 7104(a) and 7113(a), Mr. Aviles-Rivera asserts that
section 7113(a) is a claims-processing rule subject to waiver by the Board. Oral Argument at 8:02-11:59. Because we
disagree with him and conclude that there is no meaningful distinction concerning record restrictions in sections
7104(a) and 7113(a), we do not address this argument.
13
the Board remand in the other case was a pre-decisional duty-to-assist error not present in his own
case. See 38 U.S.C. § 5103A(f)(2)(A) (providing that the Board shall remand a claim to the AOJ
for correction of a pre-decisional duty-to-assist error).11 Due to the factual distinction between the
two cases, we reject this fair process argument.
Mr. Aviles-Rivera additionally argues that the Board violated fair process because,
although the 2018 NAS Update was readily available to VA, the result under the statute is that the
Board must ignore the report and deny his claim. He asserts that following the AMA record
restrictions in his case does not reflect a veteran-friendly system and cannot be what Congress
intended. However, the veteran fails to explain how the evidentiary record restriction is an unfair
flaw in the new review process rather than an intended feature of that process. In adopting the
AMA, Congress sought to reduce a key inefficiency in the legacy appeals process—the continuous
cycle of evidence-gathering and readjudication of the same claim—while still protecting claimants’
rights. Military-Veterans Advocacy, 7 F.4th at 1118-19 (citing S. Rep. No. 115-126, at 27, 29
(2017); H.R. Rep. No. 115-135, at 5); see Andrews, 34 Vet.App. at 156.
In adopting the AMA, Congress intended to streamline the appeals process and provide
claimants with choices regarding how their claims should proceed. Military-Veterans Advocacy,
7 F.4th at 1119; Andrews, 34 Vet.App. at 156. One of those choices is deciding when the
evidentiary record closes. See 38 U.S.C. §§ 5103A(e) (describing when VA’s duty to assist
applies), 5104B(d) (describing the evidentiary record for higher-level review), 7113 (describing
the evidentiary record for Board appeals). As discussed, Mr. Aviles-Rivera opted to participate in
this new review system and later, after receiving his higher-level review decision, he chose the
direct review Board docket that provided that the evidentiary record would be limited. R. at 33-

Because the 11th NAS Update was not in existence in September 2018, the RO could not have
considered it in rendering its higher-level review decision and, due to Mr. Aviles-Rivera’s choice
to elect direct Board review, the Board was prohibited from considering it in rendering its August
2019 decision. The Court is not convinced that this particular aspect of the new system violates
fair process—in fact, we are convinced that it operated in Mr. Aviles-Rivera’s case as intended.
11 To the extent that Mr. Aviles-Rivera argues that in the other veteran’s case the Board undertook
“gymnastics” in finding a pre-decisional error to suggest that no pre-decisional duty to assist error existed, Oral
Argument at 44:47-45:37, he did not provide a copy of this other Board decision. Nevertheless, even accepting the
veteran’s assertion as true, he fails to carry his burden to demonstrate disparate treatment.
14
Mr. Aviles-Rivera further argues that the modernized review system is unfair because if
the Board ignores the 2018 NAS Update he must file a supplemental claim and wait for it to be
adjudicated. But again, he fails to explain how this procedure is a flaw and not an intended feature
of the AMA. Under the AMA, claimants may sequentially pursue different lanes of administrative
review while maintaining the earliest effective date of benefits, so long as they continue to pursue
that claim within prescribed time limits. 38 U.S.C. § 5110(a)(2)-(3); see Military-Veterans
Advocacy, 7 F.4th at 1119-20; 38 C.F.R. § 3.2500(c), (h) (2021). This means that if claimants
receive an unfavorable decision they can preserve the earliest possible effective date of benefits
by selecting a more appropriate administrative review option within 1 year of the unfavorable
decision. See 38 U.S.C. § 5110(a)(2)-(3); Military-Veterans Advocacy, 7 F.4th at 1119-20;
38 C.F.R. § 3.2500(c), (h). In this case, Mr. Aviles-Rivera can preserve the earliest effective date
for his hypertension claim by filing a supplemental claim with the AOJ within 1 year of this Court’s
decision. See 38 U.S.C. § 5110(a)(2)(E); 38 C.F.R. § 3.2500(c)(4), (h)(1).12
Mr. Aviles-Rivera acknowledges that he can file a supplemental claim but argues that
doing so would add further delay to the adjudication of his claim. However, he fails to persuade
us that filing a supplemental claim would cause significant additional delay in his case, particularly
since he also argues that VA failed in its duty to assist, see section IV.F below, and correction of
such an error would necessitate a Court remand followed by a Board remand to the RO, Appellant’s
Br. at 12-14 (arguing that the October 2017 VA opinion is inadequate). Thus, we remain
unpersuaded as to his final fair process complaint.
F. Mr. Aviles-Rivera’s Remaining Arguments Fail
In addition to his arguments that the Board erred by failing to consider the 2018 NAS
Update, Mr. Aviles-Rivera’s other assertions of Board error likewise hinge on the Board having
some obligation to consider the 2018 NAS Update. He argues that the Board failed to ensure
compliance with its April 2017 remand order when it failed to consider the 2018 NAS Update.
Appellant’s Br. at 6-8 (citing Stegall v. West, 11 Vet.App. 268, 271 (1998)). And he argues that the
October 2017 VA examiner’s opinion is based on an inaccurate and outdated premise as
12 During the pendency of this appeal, the Federal Circuit invalidated 3.2500(b), which prohibited concurrent
election of judicial and administrative review. Military-Veterans Advocacy, 7 F.4th at 1141-45. To the extent that
§ 3.2500(c)(4) also appears to prohibit concurrent judicial and administrative review, the Secretary averred during
oral argument that, although the Federal Circuit did not invalidate subsection (c)(4), VA’s position is that, following
the Federal Circuit’s decision, claimants need not wait for a judicial decision before filing a supplemental claim. Oral
Argument at 34:00-35:32; see Secretary’s Clarification of Discussion at Oral Argument (Sept. 14, 2021).
15
demonstrated by the 2018 NAS Update and, therefore, the Board erred by relying on it to deny the
claim. Id. at 12-14 (citing Reonal v. Brown, 5 Vet.App. 458, 461 (1993)). Because the Court
concludes that the Board was precluded from considering the 2018 NAS Update due to the
veteran’s entry into RAMP and his choice that the Board directly review his claim based on the
evidence of record at the time of the September 2018 prior RO decision, his remaining arguments
regarding Board error must fail.
V. CONCLUSION
After considering the parties’ briefs, supplemental memoranda of law, oral argument, the
record on appeal, and the governing law, the part of the August 20, 2019, Board decision that
denied entitlement to service connection for hypertension is AFFIRMED. The balance of the
appeal is DISMISSED.

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.