Sheppard v. McDonough, No. 19-4776(Decided March 15, 2021); new-and-material-evidence issue; Jackson v. Principi, 265 F.3d 1366, 1369(Fed. Cir. 2001); 38 C.F.R. § 20.101(d);

Dissent:

In Evans v. Shinseki, we held that VA’s own regulations and the veteran-friendly, non-adversarial appeals process don’t permit the Board, ab initio, to dismiss certain issues within an appeal without first affording the veteran the full benefit of procedures mandated by its own regulations. 25 Vet.App. 7, 14 (2011). Evans determined that the Board’s failure to comply with the procedural requirements of § 20.101(d) is prejudicial when it deprives an appellant of a meaningful opportunity to present argument and evidence on the issues on appeal before the Board issues its decision. Id. at 15. That holding should apply with equal force here.

In short, I conclude that § 20.101(d) applies to the Board’s jurisdictional determination of whether new and material evidence has been presented and that the Board’s failure in this case to afford Mr. Sheppard the benefit of that regulation’s procedural protections was prejudicial.