The appellant challenged a Board decision denying service connection for ankylosing spondylitis. In reaching its decision, the Board had relied in part on a medical treatise. The Court framed the central issue as whether a claimant is entitled to notice and an opportunity to respond before the Board uses medical treatise evidence or other evidence it developed or obtained after the most recent statement of the case or supplemental statement of the case. The Court examined the statutory and regulatory scheme governing Board-obtained medical opinions and contrasted that structure with the Board’s use of medical treatises.

The Court held that the Board must provide reasonable notice of any such evidence and of the intended reliance on it, together with a reasonable opportunity to respond, before deciding the appeal. The Court further stated that if the Board becomes aware of favorable evidence while developing or obtaining evidence, it must notify the claimant, allow a response, and address that evidence with reasons or bases in its decision. The Board’s decision was vacated and the case remanded. The case is important because it reinforces procedural fairness in the nonadversarial VA system and limits the Board’s ability to rely on extra-record material without disclosure.

When the Board develops or obtains evidence after the most recent SOC or SSOC and intends to rely on it, due process and VA procedural fairness require reasonable notice to the claimant and a reasonable opportunity to respond before decision; the Board must also notify the claimant of favorable evidence it uncovers and address it in its reasons or bases.

Thurber is a core notice-and-rebuttal case for Board-developed evidence. If the Board uses post-SOC evidence, especially medical literature or other evidence outside the claimant’s prior response opportunity, the claimant must get a chance to review and rebut it.

The decision protects claimants from surprise Board factfinding based on material they have not seen. It is especially useful where the Board cites treatises, medical articles, or other evidence obtained during appellate development without first providing notice and a response period.

Board reliance on post-SOC evidence without notice and opportunity to respond

The Board obtains a medical treatise during appeal and cites it to deny service connection, but the claimant was never given the treatise or a chance to address its relevance. Thurber supports vacatur and remand.

Use Thurber to argue that any Board decision relying on extra-record medical literature, advisory material, or other evidence developed after the last SOC/SSOC is procedurally defective absent notice and a meaningful chance to rebut.

Colvin v. Derwinski, Hatlestad v. Derwinski, Mathews v. Eldridge, Fugere v. Derwinski