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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 04-1559

LARRY J. URQUHART, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HAGEL, LANCE, and DAVIS, Judges.

O R D E R

This matter is before us on the "Appellee's Motion to Strike Counter-Designated Documents

Pursuant to [Rule 10 of this Court's Rules of Practice and Procedure]." The Board of Veterans'

Appeals (Board) decision in this case, which denied service connection for a left-knee condition, is

date-stamped June 21, 2004. On the same day, a VA regional office (RO) received a favorable

medical nexus opinion from the appellant as an attachment to a letter from the appellant's attorney.

The issue presented is whether a document that arrives at an RO on the same date that the Board

decision is mailed is constructively"before the Board" as contemplated by 38 U.S.C. § 7252(b), and,

therefore, a permissible part of the record under Rule 10.

Our jurisdiction is limited to "the record of proceedings before the Secretary and the Board."

38 U.S.C. § 7252(b). This limitation is implemented through Rule 10, which directs the parties to

designate for inclusion in the record on appeal "all material in the record of proceedings before the

Secretary and the Board that was relied upon by the Board in ruling against the appellant." U.S. VET.

APP. R. 10(a). Actual reliance on the evidence by the Board is not strictly required. In Bell v.

Derwinski, this Court held:

[W]here 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. If such material could be

determinative of the claim and was not considered by the Board, a remand for

readjudication would be in order.

2 Vet.App. 611, 613 (1992).
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In determining whether material controlled by the Secretary could reasonably be expected

to be a part of the record before the Secretary and the Board, this Court recognizes that the Secretary

has promulgated regulations stating when the record before the Board becomes final. Additional

evidence may be submitted within "90 days following the mailing of notice to [the appellant and his

or her representative] that an appeal has been certified to the Board for appellate review . . . or until

the date the appellate decision is promulgated by the Board . . . , whichever comes first." 38 C.F.R.

§ 20.1304(a) (2004). In this case, the evidence arrived at the RO within the relevant 90-day period.

However, the date it arrived is also the date stamped on the Board decision.

The appellant makes two alternative arguments in opposition to the Secretary's motion to

strike the counterdesignated document. He argues that § 20.1304(a) has been trumped by the

subsequent enactment of 38 U.S.C. § 5103(b), which gives claimants one full year to submit

additional evidence after receiving the notice required by section 5103(a). In this case, the relevant

letter is dated September 8, 2003, less than a year before the June 21, 2004, decision. He also argues

that his submission was timely under 38 C.F.R. § 20.1304(a) and our decisions in Sims v. West, 11

Vet.App. 237 (1998), and Losh v. Brown, 6 Vet.App. 87 (1993).

As to the first argument, the Court notes that the time limit set forth in section 5103(b)

explicitly states that the evidence needed to substantiate a claim must be received within one year

from the date of the Secretary's notification in order for benefits to be paid on the relevant claim.

The statute does not address whether such evidence would be before the Board on appeal nor does

it require the Board to wait until the year has expired before adjudicating an appeal. The appellant's

construction could lead to absurd results, and accepting his interpretation may permit a situation

where evidence that did not even exist at the time of the Board decision may be considered

constructively before the Board. For example, if the Board decision occurred less than a year after

the section 5103(a) notice was provided (as in this case), then new evidence, such as a medical

opinion, could be created after the issuance of the Board decision and if submitted, would then be

considered part of the record deemed considered by the Board. If a prompt Notice of Appeal was

filed, such evidence could even postdate the vesting of jurisdiction with this Court. In Bell, we held

that documents that were "within the Secretary's control and [that] could reasonably be expected to

be a part of the record" were constructively before the Board. 2 Vet.App. at 613 (emphasis added).

The appellant's suggestion that evidence was constructively before the Board even though it did not

exist at the time of the Board decision would seriously undermine our limited jurisdiction to review

"the record of proceedings before the Secretaryand theBoard." 38 U.S.C. § 7252(b); see Rogozinski

v. Derwinski, 1 Vet.App. 19, 20 (1990) (holding that "we must reject" a counterdesignation of

records not before the Board because of our jurisdictional limitation). This is not to say that such

evidence does not relate back to the original claim for purposes of determining the effective date of

an award of benefits based on that evidence. However, we decline to read section 5103(b) as

allowing us to consider evidence that was created after the Board decision on review and possibly

even after jurisdiction vested with this Court.

As to his second argument, to prevail, the appellant must show that the evidence he submitted

was received in a timely manner under 38 C.F.R. § 20.1304. Initially, we note that the fact that the
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evidence was received by the RO instead of the Board is irrelevant. In Sims, we held that because

of the ambiguity created by the conflict between 38 C.F.R. § 19.37(b) (2004) and 38 C.F.R.

§ 20.1304, "the Court will resolve the ambiguity in the appellant's favor," and we included evidence

in the record that was submitted to the RO after the appeal had been certified to the Board.

11 Vet.App. at 239. The Secretary attempts to distinguish Sims on the grounds that the RO in that

case improperly failed to forward the documents, and in this case, the RO did not similarly withhold

documents. Secretary's Motion (Mot.) at 3. However, the rationale of Sims was that the language

of the two regulations created an ambiguity. 11 Vet.App. at 239. Although the withholding of

documents was noted, it was not the basis of the decision. In the seven years since our ruling in

Sims, the Secretary has not altered either regulation to resolve the ambiguity, so Sims remains

controlling, meaning evidence received by the RO at any time on or before the date of the Board's

decision is effectively deemed received by the Board. Id. 

Accordingly, the only issue is whether evidence that arrives on the same date as the mailing

date (and within the 90-day window) is before theBoard. Under § 20.1304, the claimant may submit

new evidence "until" the Board promulgates its decision. Under Losh, days are indivisible;

procedural events occurring on the same day are simultaneous; and we will not engage in factfinding

to determine which event occurred first. 6 Vet.App. at 89. The Secretary argues that under the

holding in Losh "the documents were not a part of [the a]ppellant's claims folder at the time of the

BVA decision." Secretary's Mot. at 2. However, the Secretary's assertion is unavailing. Under

Losh, because procedural events are deemed to have occurred simultaneously, it can equally be said

that the decision had not yet issued when the documents were received. At best, the use of the word

"until" is ambiguous as applied to evidence received simultaneously with the issuance of a Board

decision. As in Sims, here "the Court will resolve ambiguity in the appellant's favor." 11 Vet.App.

at 239.

Upon consideration of the foregoing, it is

ORDERED that the Secretary's motion is DENIED. The items counterdesignated by the

appellant and opposed by the Secretary shall be included in the record on appeal. It is further

ORDERED that the Secretary, within 14 days after the date of this order, and pursuant to

Rule 11 of this Court's Rules of Practice and Procedure, transmit to the Clerk and serve on the

appellant the record on appeal. It is further

ORDERED that the appeal is returned to a single judge for disposition.

DATED: August 30, 2005 PER CURIAM.