Williams v. McDonough — Board may not decide an AMA appeal before the claimant’s § 20.202(c)(2) docket-switch deadline expires

Mr. Williams appealed a Board denial of an increased rating for cervical spine strain under the AMA system after electing the direct review docket. The Board issued its decision before the period expired for him to modify his NOD and switch to another docket. The Court first resolved whether 38 C.F.R. § 20.202(c)(2) merely sets a deadline for filing a docket-switch request or also limits when the Board may decide the appeal. The Court held that the regulation grants the claimant the later of one year from the AOJ decision or 60 days from Board receipt of the NOD to modify the NOD, and that the Board ordinarily cannot issue a decision before that period expires. The Court relied on the text of the regulation and the broader AMA structure, including VA’s own recognition that claimants need meaningful time to choose the appropriate evidentiary lane. The Court also rejected the Secretary’s harmless-error argument, explaining that a supplemental claim is not an equivalent substitute because it requires new and relevant evidence, whereas the Board evidence lanes do not impose that burden. The Board decision was vacated and the matter remanded so the veteran could fully exercise his lane-selection rights.

When 38 C.F.R. § 20.202(c)(2) gives a claimant time to modify an AMA NOD and choose a different Board lane, the Board ordinarily may not issue a decision before that time expires; doing so is prejudicial where it deprives the claimant of the ability to submit evidence in the chosen Board lane.

A claimant’s AMA docket-switch period is meaningful, not illusory. If the Board decides the appeal before the deadline to modify the NOD expires, that decision can be set aside because the claimant was denied the full regulatory opportunity to choose the evidentiary record.

This is an important AMA procedural decision limiting the Board’s ability to rush adjudication in a way that undercuts a claimant’s lane-selection rights. It gives advocates a concrete argument when the Board issues a decision before the regulatory window to change dockets closes.

A veteran files an AMA NOD selecting direct review, then receives a Board decision weeks later before the 60-day deadline to change to the evidence docket. Under Williams, counsel can argue the Board decided too early and seek vacatur and remand.

Use this case to argue that the Board must honor the full § 20.202(c)(2) window before deciding an AMA appeal, especially where additional evidence would have been submitted in the evidence or hearing lane. It is also useful to defeat harmless-error arguments based solely on the availability of a supplemental claim.

38 C.F.R. § 20.202(c)(2), 38 U.S.C. § 7261(b)(2), 38 U.S.C. § 5108(a)