Brack v. Collins

Opinion

United States Court of Appeals for the Federal Circuit

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PRISCILLA BRACK, Claimant-Appellant

v.

DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

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2025-1205

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Appeal from the United States Court of Appeals for Veterans Claims in No. 22-3957, Judge Grant Jaquith, Judge Joseph L. Toth, Judge Scott Laurer.

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Decided: September 8, 2026

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SAMANTHA MICHELLE LEFF, Orrick, Herrington & Sutcliffe LLP, New York, NY, argued for claimant-appellant. Also represented by MELANIE L. BOSTWICK, Washington, DC; KENNETH DOJAQUEZ, Carpenter Chartered, Topeka, KS.

MEREDYTH COHEN HAVASY, Commercial Litigation Branch, Civil Division, United States Department of Justice , Washington, DC, argued for respondent-appellee. Also represented by MARTIN F. HOCKEY, JR., PATRICIA M. MCCARTHY, BRETT SHUMATE; BRIAN D. GRIFFIN, ANDREW J.

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STEINBERG, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

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Before MOORE, Chief Judge, STOLL and STARK, Circuit Judges.

STARK, Circuit Judge.

Priscilla Brack, the surviving spouse of veteran Bruce M. Brack, appeals a final judgment of the Court of Appeals for Veterans Claims (“Veterans Court”), which affirmed a Board of Veterans’ Appeals (“Board”) decision denying Mr. Brack an earlier effective date for service-connected cardiovascular disease. 1 Two months before filing his notice of disagreement (“NOD”) seeking an earlier effective date with the Board, Mr. Brack requested a complete copy of his Department of Veterans Affairs (“VA”) claims file. Along with that request, he asked “for a 90 day extension from the date” on which he received the claims file “to submit additional supporting” argument to the Board. J.A. 129.

Mr. Brack’s extension request was denied 47 days after he received his claims file, in the same order by which the Board denied his request for an earlier effective date. Mr. Brack appealed both denials to the Veterans Court, where he argued that the Board’s failure to honor his request for 90 days to submit argument violated the Veterans Court’s “fair process” doctrine. The Veterans Court disagreed and affirmed the Board.

Ms. Brack now appeals to us. We assume, without deciding , three premises pressed by Ms. Brack in her appeal: that the “fair process” doctrine exists as a right distinct

1 Ms. Brack was substituted by the Veterans Court in an order dated November 14, 2024, nunc pro tunc to December 27, 2023.

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from constitutional due process; that it survives the enactment of the Appeals Modernization Act (“AMA”); and that it applies specifically within the AMA’s “Direct Review” lane. Given these assumptions, the narrow legal question we must address is whether a veteran who chooses the AMA’s Direct Review lane has a reasonable expectation that the Board must grant a request for 90 days – running from receipt of a claims file – to submit argument. Because such an expectation is, as a matter of law, not reasonable, we affirm the Veterans Court.

I

Mr. Brack served with the U.S. Army in Vietnam from 1967 to 1968. In January 2021, Mr. Brack was granted service connection for coronary artery disease with an effective date of January 5, 2021. Mr. Brack sought an earlier effective date, which a VA Regional Office (“RO”) denied on July 28, 2021.

On August 25, 2021, Mr. Brack’s non-attorney representative , Allen Gumpenberger, submitted a request to the RO pursuant to the Privacy Act, 5 U.S.C. § 552a et seq., seeking a complete copy of Mr. Brack’s VA claims file. The Privacy Act request and accompanying cover letter stated that its purpose was to facilitate “presentation and prosecution of [Mr. Brack’s] current and future requests,” adding that Mr. Gumpenberger was “working on securing an independent evaluation or opinion to support the claims or appeals filed for compensation purposes.” J.A. 129-30. The letter concluded: “Should any issues be pending [B]oard review , I am asking for a 90 day extension from the date in which the privacy act request is completed to submit additional supporting [argument].” 2 J.A. 129 (emphasis added).

2 While Mr. Gumpenberger’s letter expressly sought opportunity to submit “evidence,” Mr. Brack subsequently chose in his NOD to proceed through the Direct Review 4 BRACK v. COLLINS

Neither the Privacy Act nor VA regulations establish a deadline for production of records requested pursuant to the Act. See 38 C.F.R. § 1.577(c) (“The VA . . . will establish appropriate disclosure procedures, including notifying the individual who filed the Privacy Act request of the time, place, and conditions under which the VA will comply with the request.”); see also 5 U.S.C. § 552a(d)(1).

Mr. Brack had a statutory right to wait until one year after the RO’s July 28, 2021 decision before filing his NOD challenging the RO’s denial of an earlier effective date. See 38 U.S.C. § 7105(b)(1)(A). Notwithstanding the uncertainty as to when his Privacy Act request might be fulfilled, he chose to file his NOD just two months after the RO’s decision, on October 21, 2021.

As Mr. Brack’s appeal is governed by the AMA, see Pub.

L. No. 115-55, 131 Stat. 1105, 1115 (2017) (codified at 38 U.S.C. §§ 101 et seq.), he was required in his NOD to select one of three available review “lanes” under which his appeal would be decided. Pursuant to 38 C.F.R. § 20.202(b), and as set out in VA Form 10182 Part II (“Board Review Option”), Mr. Brack was directed to check a box accompanying one of the following three options:

Direct Review by a Veterans Law Judge: I do not want a Board hearing, and will not submit any additional evidence in support of my appeal. (Choosing this option often results in the Board issuing its decision most quickly.)

lane, which does not allow for the submission of additional evidence. See 38 C.F.R. § 20.202(b). For purposes of this appeal, the parties agree that Mr. Brack’s request is assumed to have included a request for a 90-day period (postreceipt of the claims file) in which to submit argument. See, e.g., Resp. Br. at 8 n.3.

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Evidence Submission Reviewed by a Veterans Law Judge: I have additional evidence in support of my appeal that I will provide within the next 90 days, but I do not want a Board hearing. (Choosing this option may add delay to issuance of a Board decision .) Hearing with a Veterans Law Judge: I want a Board hearing and the opportunity to submit additional evidence in support of my appeal that I will provide within 90 days after my hearing. (Choosing this option may add delay to issuance of a Board decision.)

J.A. 122 (underlining added; italics in original).

While the Direct Review lane is the only one of the three in which the veteran agrees not to submit additional evidence, in all three lanes the veteran is permitted to submit additional argument. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 156 (Jan. 18, 2019) (“Although the modernized review system confines evidence submission to certain periods, the statute and proposed regulations do not – apart from creating a faster review process – restrict a representative’s ability to submit argument .”).

The Direct Review lane is also the only one of the three with no statutory or regulatory minimum timeframe for a decision. Because the Evidence Submission and Hearing lanes allow 90 days for submitting evidence – counted from the filing of the NOD or from the completion of the hearing, respectively – a veteran choosing these lanes is guaranteed to have at least a 90-day period before receiving a decision. By contrast, the Direct Review lane has no deadlines or minimum timing guarantees. Indeed, the form notifies veterans that “[c]hoosing this option often results in the Board issuing its decision most quickly.” J.A. 122. As the Veterans Court correctly observed, “the [D]irect [R]eview lane []

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can be chosen when a claimant doesn’t wish to submit evidence or receive a hearing and instead wants the Board to issue a decision as soon as possible.” J.A. 1-2.

On January 20, 2022, the VA fulfilled the August 2021 Privacy Act request. The VA said nothing at that time about the 90-day extension request Mr. Gumpenberger had also submitted. Had the Board granted this requested extension , it would have had to wait 90 days following the January 20, 2022 production of the claims file in order to allow Mr. Brack to submit additional argument; thus, it would have been required to refrain from issuing a decision on Mr. Brack’s appeal until at least April 20, 2022.

Instead, the Board issued its decision on March 8, 2022, just 47 days after production of the claims file – and 137 days after the Board docketed Mr. Brack’s appeal. In its decision, the Board denied Mr. Brack’s request for an earlier effective date for his service-connection benefits. It also acknowledged, and rejected, Mr. Gumpenberger’s 90- day extension request, finding “no legal basis to delay adjudication .” J.A. 33. Mr. Brack appealed to the Veterans Court. There he argued that Veterans Court precedent recognizes a “fair process ” doctrine which, as applied here, required the Board to wait to issue its decision until after the earlier of (i) Mr. Brack’s submission of additional argument or (ii) the expiration of his requested 90-day period (from the date he obtained the claims file). The Veterans Court disagreed. It reasoned:

While Mr. Brack clearly had a right to submit argument to the Board, and that right logically encompasses an appropriate amount of time to obtain and review the claims file so as to develop such argument , the 90-day delay he sought is unmoored from any procedural standard applicable to the direct review lane and inconsistent with the expeditious process it was designed to provide.

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J.A. 9. This timely appeal followed.

II

“Our jurisdiction to review decisions of the Veterans Court is limited. We may review legal questions, including the interpretation of any statutes or regulations relied upon by the Veterans Court. But, except for constitutional issues, we may not review the Veterans Court’s factual findings or its application of law to facts.” Veterans Legal Advoc. Grp. v. Collins, 177 F.4th 1188, 1190 (Fed. Cir. 2026) (internal citations omitted); see also 38 U.S.C. § 7292(a), (d)(2).

The Secretary argues that we lack jurisdiction because Ms. Brack’s appeal asks us to review the Veterans Court’s application of the fair process doctrine to the specific facts of Mr. Brack’s case. We disagree. The question presented here is a question of law: whether the fair process doctrine requires the Board, when adjudicating a claim under the AMA’s Direct Review lane, to afford a veteran who requests 90 days (after receipt of a claims file) to submit argument at least that amount of time to do so. 3 The Veterans Court

3 Ms. Brack describes the issue presented more broadly: “Whether the fair process doctrine requires the VA to provide reasonable time for veterans and their representatives to participate meaningfully in the adjudication of their claims under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA).” Open. Br. at 3 (emphasis added); see also Reply Br. at 2 (same). However, Mr. Brack never asked for an indeterminate “reasonable time” to submit his argument; he sought 90 days. J.A. 129 (“I am asking for a 90 day extension from the date in which this privacy act request is completed to submit additional supporting [argument].”). Mr. Brack also did not argue before the Veterans Court that he was entitled to a general 8 BRACK v. COLLINS

answered this question in the negative. J.A. 10. We have jurisdiction to decide, de novo, whether the Veterans Court was correct. See Sprinkle v. Shinseki, 733 F.3d 1180, 1185 (Fed. Cir. 2013) (analyzing whether a veteran is entitled to fair process protections as matter of law).

III

A

The fair process doctrine originated in Thurber v.

Brown, 5 Vet. App. 119, 126 (1993), where the Veterans Court held that, notwithstanding the absence of any explicit statutory or regulatory requirement, the Board, when adjudicating a veteran’s appeal, must provide the veteran with “reasonable notice of . . . [the] evidence” to be considered and a “reasonable opportunity to respond.” More generally , Veterans Court precedent dictates that “[a]side from any constitutional due process requirements that may apply to administrative adjudications, . . . the Board must ensure that it provides an appellant fair process in the adjudication of his claim.” Nohr v. McDonald, 27 Vet. App. 124, 134-135 n.5 (2014).

Notably, when Thurber created the fair process doctrine , our court had not yet determined – as we would in Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009) – that

“reasonable time” to submit argument, instead arguing explicitly that “[f]air process requires that the Board provide at least 90 days . . . . to submit additional argument from the time VA provided the claims file.” J.A. 1389 (emphasis in original). Thus, Mr. Brack forfeited the more general issue. See Gurley v. McDonough, 23 F.4th 1353, 1357 (Fed. Cir. 2022) (arguments not raised in Veterans Court are forfeited ). Our holding, therefore, is limited to whether, as a matter of law, a veteran has a reasonable expectation to a 90-day period after receipt of a claims file to submit argument in the Direct Review lane.

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a veteran’s entitlement to benefits constitutes a property interest protected by the Fifth Amendment’s Due Process Clause. See Sprinkle, 733 F.3d at 1185 (noting Thurber was decided when “neither this court nor the Supreme Court had ruled on the extent to which applicants for government benefits had a property right in their expectation ”). Thurber was also decided well before the enactment of the AMA in 2017.

Thus, as we have recently observed, “[t]here is uncertainty surrounding [the ‘fair process’] doctrine and how it is applied.” Frantzis v. McDonough, 104 F.4th 262, 266 (Fed. Cir. 2024). While our court has acknowledged the Veteran Court’s establishment of the “fair process” doctrine , see Sprinkle, 733 F.3d at 1185, we have never squarely held that it actually exists or, if it does, that it entitles claimants to procedural protections beyond what they are already guaranteed as due process. See Oral Arg. at 01:40-01:52, available at https://www.cafc.uscourts.gov /oral-arguments/25-1205_05062026.mp3 (counsel for Ms. Brack describing this as question of first impression).

B

In asking us to reverse the Veterans Court, Ms. Brack asks that we, for the first time, expressly adopt the Veterans Court’s creation of a “fair process” doctrine as binding on the Board, and as distinct from the due process guarantees that we held in Cushman apply to veterans benefit claims. She further urges us to hold that the “fair process” doctrine survives the enactment of the AMA and that it specifically applies in the Direct Review lane. The government disagrees with each of these propositions. It sees no need for us to affirm that the “fair process” doctrine existed under the pre-AMA legacy system or to hold that it continues to exist under the AMA, in any of the three review lanes. The government further contends that if there is (or 10 BRACK v. COLLINS

ever was) a “fair process” doctrine, it is coextensive with due process. 4 We need not, and do not, resolve these disputes. Even assuming the “fair process” doctrine is distinct from due process, and even assuming fair process applies in the AMA system – and in particular in its Direct Review lane – we agree with the Veterans Court that a veteran cannot, as a matter of law, establish a reasonable expectation that the Board, when adjudicating an appeal in the Direct Review lane, will, at the veteran’s request, delay issuance of its decision for a 90-day period measured from the date of production of the veteran’s claims file. Because Ms. Brack cannot prevail in this appeal even were we to agree with the premises underlying her position, we neither accept nor reject them; rather, we assume, for purposes of this appeal, that they are correct. 5

C

We hold that a claimant choosing to proceed in the AMA’s Direct Review lane, who also submits a Privacy Act request for his VA claims file, does not have a reasonable

4 The government concedes it failed to make this argument to the Veterans Court. See Oral Arg. at 23:34- 23:39; see also J.A. 1392-1406 (Secretary’s briefing at Veterans Court).

5 We recognize that after deciding Ms. Brack’s appeal , the Veterans Court held that the “fair process” doctrine precludes the Board from “issu[ing] a decision before the time to modify a[] NOD has expired,” regardless of which review lane the veteran chooses. Williams v. McDonough, 37 Vet. App. 305, 310 (2024). Ms. Brack’s appeal does not raise the same issue addressed in Williams; nor does it ask us to apply Williams here. We therefore have no occasion to consider Williams.

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expectation that the Board will delay deciding his appeal for at least 90 days after he receives the claims file, even if such a delay is requested. Even assuming the “fair process” doctrine exists, applies, and provides rights broader than due process, it does not guarantee the delay urged by Ms. Brack.

Ms. Brack points to no statutory basis for concluding otherwise. To the contrary, as we have discussed, the Direct Review lane is the only one of the AMA’s three lanes that carries no statutory or regulatory minimum timeframe for a decision. For this reason, a veteran who selects it is affirmatively warned by VA’s form that doing so “often results in the Board issuing its decision most quickly.” J.A. 122 (internal emphasis omitted). The Evidence Submission and Hearing lanes, by contrast, guarantee at least a 90-day period of delay before issuance of the Board’s decision, because Congress built a fixed submission window into the design of these lanes. See 38 U.S.C. § 7113(c)(2). Hence, the overall structure of the AMA undermines the reasonableness of any expectation that, upon choosing to proceed through the Direct Review lane – and declining to proceed through the other two lanes, both of which do guarantee 90 days to submit argument – the claimant will have 90 days in which to submit argument, particularly when the 90-day period is measured from the date a Privacy Act request for a claims file happens to be fulfilled.

Our conclusion is further supported by Congress’ evident intent that the AMA improve the efficiency of the VA’s handling of veterans’ appeals. Adoption of Ms. Brack’s position – and requiring the Board to delay issuing a decision in the Direct Review lane until at least 90 days have elapsed following fulfillment of a Privacy Act request – would undermine this goal. As the Veterans Court well stated:

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[P]ermitting claimants to choose the direct review lane and then demand individualized adjudication timelines would introduce procedural complexity and alter the fundamentally expeditious nature of the direct review lane, potentially causing delays for other claimants who chose the direct review lane precisely for its quickness.

J.A. 11.

D

Finally, Mr. Brack’s own case illustrates how disconnected Ms. Brack’s request is from the actual structure of the AMA. Had the Board granted the delay Mr. Brack requested , the Board would have been obligated to withhold its decision until 90 days after he received his claims file on January 20, 2022; that is, April 20, 2022. Instead, the Board issued its decision on March 8, 2022. While that date was only 47 days after receipt of his claims file, it was a full 137 days after the Board docketed Mr. Brack’s NOD (on October 22, 2021). Notably, this 137-day adjudication period is longer than the fixed 90-day evidence and argument submission period that would have been available to Mr. Brack had he chosen the AMA’s Evidence Submission lane. See 38 U.S.C. § 7113(c)(2) (“The evidentiary record before the Board for cases described in paragraph (1) shall include . . . Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.”). In this context, that the Board failed to grant Mr. Brack’s self-selected delay period cannot be said to have violated any reasonable expectation he had to a meaningful opportunity to participate in his appeal.

IV

Ms. Brack offers several arguments in opposition to our conclusion. None persuades us that we should reverse the Veterans Court.

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A

Ms. Brack’s primary argument on appeal is that this case is governed by Bryant v. Wilkie, 33 Vet. App. 43 (2020). In Bryant, the Veterans Court held that the fair process doctrine required the Board to refrain from deciding an appeal for at least 90 days following the Board’s mailing of a notice of appeal letter, where the veteran “affirmatively notified the Board that he intended to submit additional argument ” during that 90-day period. Id. at 46-47. In Ms. Brack’s view, Mr. Brack’s Privacy Act request acted as an affirmative notification of intent to submit additional argument, and, therefore, Bryant required the Board to wait 90 days following the production of Mr. Brack’s VA claims file before deciding his appeal. 6 We disagree. Even assuming Mr. Brack was entitled to the benefits of the “fair process” doctrine, Bryant is materially distinguishable from the circumstances of this case.

The reasonable expectation Bryant recognized was a function of the Board’s own regulatory commitments. Bryant is a pre-AMA case. Under then-governing 38 C.F.R. § 20.1304(a), every Board appellant was granted a 90-day period, running from the Board’s mailing of a certification notice, during which to submit (i) additional evidence, (ii) a request for a hearing, or (iii) a change in representation.

6 Ms. Brack’s arguments that other events – including the NOD docketing letter Mr. Brack received, and the VA’s pre-decision silence with respect to his delay request – gave rise to a reasonable expectation of a 90-day delay call for review of application of law to facts and are, therefore , outside of our jurisdiction. See 38 U.S.C. § 7292(d)(2).

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See Bryant, 33 Vet. App. at 45. 7 That 90-day period began with a specified triggering event (the mailing of the certification notice letter), was defined by regulation, and was initiated by the Board itself. Id. (“[T]he triggering event for application of [the 90-day delay provided under 38 C.F.R] § 20.1304(a) was the mailing of notice that an appeal had been certified and transferred to the Board . . . .”) (internal quotations and citations omitted, first alteration in original ).

Mr. Brack’s situation bears no resemblance to the circumstances considered in Bryant. Mr. Brack’s request did not invoke a delay period fixed by regulation and triggered by the Board’s own action. Rather, Mr. Brack unilaterally asked the Board to observe a delay running from an event entirely of his own choosing: the date his Privacy Act request happened to be fulfilled. There are no statutory or regulatory guarantees setting out the timeframe within which the VA must produce an approved Privacy Act request , nor are there any limits on the timeframe within which a claimant must make such a request. See 5 U.S.C. § 552a(d)(1); 38 C.F.R. § 1.577(c). The date on which Mr. Brack’s proposed 90-day period would begin running was thus wholly unpredictable, quite unlike the fixed, foreseeable trigger in Bryant. Simply put, Bryant does not stand for the proposition that a claimant can manufacture a reasonable expectation of adjudicatory delay simply by naming his or her own delay period and asking the Board to adopt it.

7 As noted by the Veterans Court, the then-governing “38 C.F.R. § 20.1304(a) said nothing about the time period for submitting argument,” but the “VA had often treated the regulation’s 90-day period for submitting evidence as implicitly covering the timeframe for submitting arguments as well, at least in cases where a claimant had not requested a hearing before the Board.” J.A. 6.

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B

Ms. Brack also relies on AMA regulations that speak to certain time periods claimants have to assert procedural rights during the pendency of their Board appeals. None of these provisions addresses the time allowed for submission of argument. Nor do they, alone or in combination, give rise to a reasonable expectation that a veteran has 90 days following the completion of a Privacy Act request within which to submit argument in the Direct Review lane.

Two regulations applicable to Board appeals governed by the AMA are of note. The first is 38 C.F.R. § 20.1304(a), which provides an appellant or her representative “a period of 90 days following receipt [by the Board] of a Notice of Disagreement, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a change in representation.” The second is 38 C.F.R. § 20.202(c)(2), which permits a claimant to modify a NOD, including to select a different review lane, until the later of 60 days after the Board receives the NOD or one year after “the agency of original jurisdiction mails notice of the decision on appeal.”

Neither of these regulations supports a reasonable expectation of the specific delay Ms. Brack asks us to recognize here: a 90-day delay running from the date of production of Mr. Brack’s claims file under the Privacy Act within which to submit argument. The periods set out in §§ 20.1304(a) and 20.202(c)(2) run from fixed, predictable triggering events, not the sort of individualized delay period – anchored to an event of uncertain timing – that Mr. Brack requested. The existence of certain set periods within which a claimant may exercise one right does not create a reasonable expectation that she can set her own period for asserting a different one.

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V

We have considered Ms. Brack’s remaining arguments and find they lack merit. 8 Accordingly, we affirm the judgment of the Court of Appeals for Veterans Claims.

AFFIRMED

COSTS

No costs.

8 Because we find no error, we need not address the government’s alternative argument that any error committed by the Veterans Court was harmless. Nor do we reach Ms. Brack’s contention that we lack jurisdiction to conduct a harmless error review in the first instance.