           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.

                                            ORDER

        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 Secretary and the Board." 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 the Board. 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.




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