Andrews v. McDonough — the closed record

34 Vet. App. 151 (2021), decided May 28, 2021. Court of Appeals for Veterans Claims, No. 19-3227, before Judges Greenberg, Falvey and Laurer, opinion by Judge Laurer. Precedential. Board decision set aside and remanded.

There are two precedential decisions called Andrews v. McDonough, both from 2021, both in volume 34 of the same reporter. This is the one about the evidentiary record. The other one, sixty-five pages later at 34 Vet. App. 216, is about when a court grants a claim instead of sending it back. They have nothing to do with each other, and the court itself had to tell their files apart by the veterans' initials.

This is the case to read before you choose a docket, and the case that stops a reasonable assumption from costing you years.

What it holds

If you chose Direct Review, a remand from the Veterans Court does not reopen the record. Not for you, and not for the Board:

"We see no ambiguity in the statute here — if Mr. Andrews remains in the direct review docket, he may not submit new evidence; or rather, the Board may not consider new evidence."

The statute is 38 U.S.C. §7113, and subsection (a) is four lines long: where the notice of disagreement requests no hearing and no opportunity to submit evidence, "the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal."

The natural objection is that a court remand is a different situation from an ordinary appeal. The court rejected it on the text: "The statutes contain no qualifications to suggest that Congress wanted a different result on remand from this Court," and the statute "offers no indication that Congress sought to treat Court remands differently than direct appeals."

The second half is the one that surprises people. Congress also decided that the duty to assist "shall not apply … to review on appeal by the Board of Veterans' Appeals." So the Board itself is not going out to develop your case either.

The opinion's own summary of the modernised system — quoted by the Board ever since — is that it is "a whole new world" for adjudicating veterans' benefits. That is not decoration. The habits carried over from the legacy appeals system, where a remand meant a fresh round of development, are the source of the mistake.

What this means in practice

Check your own docket and your own window before you send VA anything. The answer is not the same for all three, and it is not the same at every stage:

Those are §7113 and the Board's rules at 38 C.F.R. part 20, subpart D. The Board appeal page sets out the practical comparison.

Evidence sent into a closed lane is not just late. It is not in the case. It can sit in your file, and your file can be enormous, and the judge deciding the appeal still may not look at it.

Could he just switch dockets?

He asked. No — the deadline had gone. A notice of disagreement can be modified to elect a different docket, but only within the later of one year from the date the regional office mailed notice of the decision on appeal, or 60 days from the date the Board received the notice of disagreement (38 C.F.R. §20.202(c)(2)). Both had long expired by the time the case reached the court, and the court declined to ignore VA's own regulation to get around it.

So the window to change your mind about a docket closes early — long before a court ever sees the case.

What is still open to you

The decision is not the end of the road, and the options it identifies are the ones worth knowing:

• A supplemental claim. Take the new evidence to the agency of original jurisdiction, which is where the duty to assist lives and where new evidence belongs. How supplemental claims work.
• A fresh notice of disagreement, with a different docket. After the next decision, elect Evidence Submission or Hearing instead.

• A duty-to-assist error the regional office made before it decided. This is the one route by which new evidence can still enter, and it is the route this case itself took. The court quoted 38 U.S.C. §5103A(f): where the Board, reviewing a regional office decision, "identifies or learns of an error on the part of the [regional office] to satisfy its duties under this section, and that error occurred prior to the [regional office] decision on appeal … the Board shall remand the claim to the [regional office] for correction of such error and readjudication." The regulation implementing it is 38 C.F.R. §20.802, which also requires the office to readjudicate and issue a new decision — carrying a new set of review options with it.

  That is how Mr. Andrews gets the examination he was owed: his original exam was inadequate, which is a regional-office failure that happened before the decision on appeal. Notice what it is not. It is not you adding evidence to the appeal you are in. It is the case going back a level because something was missing before it ever left.

What it does not hold

• It is not about the other two dockets. If you elected Evidence Submission or Hearing, your record was never closed in the same way; your question is whether your window has passed.
• It does not say the Board can ignore a court remand. The Board was ordered to address specific errors and did not get to skip them. What it may not do is consider new evidence while doing so.
• It does not mean no evidence can ever follow a remand. It means you cannot put it in. A pre-decisional duty-to-assist failure sends the case back a level, and development happens there — which is why the court could order a new knee examination in the same opinion that closed the record.
• It is not an award. The Board decision was set aside and the case sent back for the Board to give adequate reasons and consider a diagnostic code it had skipped. The merits of his knee ratings were never decided by the court.

Finding the opinion

Published at 34 Vet. App. 151. The official PDF is Andrews v. McDonough, No. 19-3227 — note the AndrewsW in that filename, which is how the court distinguishes it from the other 2021 Andrews.

It is applied as current law. Board decisions were still citing it for the Direct Review record rule in 2023 and in January 2025, which is the strongest evidence available here that it has not been displaced; no commercial citator was run. See sources and corrections.

Nothing on this page tells you which docket fits your record. That is exactly the question to take to an accredited representative before you file, because it is the one choice on the form that cannot be undone later.

Reviewed October 6, 2026