Varad v. McDonough — Constructive possession includes relevant evidence served on VA during a prior Court appeal

Christine Varad, the adult child of a deceased veteran, sought DIC benefits on the theory that she became permanently incapable of self-support before age 18. After an earlier Board denial was vacated and remanded in Varad I, the Board issued a new December 2020 decision denying the claim again. The issue on the second appeal was whether an April 2019 private medical report and narrative summary, submitted by Varad to the Court during the first appeal and served on VA counsel, were constructively before the Board when it readjudicated the claim.

The Court held that the April 2019 evidence satisfied the constructive-possession doctrine. It pre-dated the Board decision, was within the Secretary’s control because it was served on VA counsel during the prior Court appeal, and was relevant and reasonably connected to the DIC issue. The Court rejected the Secretary’s argument that materials submitted to the Court could not be part of the administrative record, and it also rejected the argument that VAOGC’s lack of adjudicatory authority defeated constructive possession. Because the Board failed to consider this favorable evidence, the Court set aside the decision and remanded for readjudication on the entire record.

For constructive possession, evidence may be deemed before the Board if it pre-dates the Board decision, is within the Secretary’s control, and is relevant and reasonably connected to the claim; evidence submitted to and served through a prior Court appeal may satisfy those requirements even if it was not physically filed with VBA or the Board.

If favorable evidence was served on VA during a prior Court appeal of the same issue, counsel should assess whether the Board had constructive possession of that evidence on remand and whether omission of it requires vacatur or remand.

The case gives appellants a concrete constructive-possession theory for Court-served evidence in legacy appeals. It also limits VA’s ability to argue that only documents physically routed through VBA or the Board can matter on remand when the Secretary already received the evidence through appellate service.

Failure to address favorable evidence [Evidentiary Errors]

A claimant submits a favorable private medical opinion to the Court during a first appeal, the case is remanded, and the Board issues a new denial without discussing that opinion. Under Varad, the omission may be reversible because the evidence may have been constructively before the Board.

Use Varad to argue that evidence served on VA counsel during prior Court proceedings should be treated as part of the record on remand, especially where the Board itself tells the claimant that Court pleadings and related materials will be associated with the file. The case is also useful to rebut arguments that a filing-location technicality defeats constructive possession.

Caluza v. Brown, Tucker v. West, Euzebio v. McDonough, Lang v. Wilkie, Bell v. Derwinski, Davis v. McDonough, Aviles-Rivera v. McDonough, Rosler v. Derwinski