Federal Circuit: VA Direct Review Means No Guaranteed 90 Days to Argue

Federal Circuit: VA Direct Review Means No Guaranteed 90 Days to Argue

The Federal Circuit held on September 8, 2026 that a veteran who picks the VA's Direct Review appeal lane cannot demand that the Board wait 90 days after his claims file arrives before deciding. The court affirmed the Court of Appeals for Veterans Claims in Brack v. Collins, No. 2025-1205.

Information last verified on September 9, 2026.

Jurisdiction scope: This article addresses federal law governing appeals to the Board of Veterans' Appeals under the Appeals Modernization Act, as interpreted by the U.S. Court of Appeals for the Federal Circuit. It does not address state law, and it does not address VA claims filed under the legacy appeals system that the AMA replaced.

What Happened

Bruce M. Brack served with the U.S. Army in Vietnam from 1967 to 1968. In January 2021 the VA granted him service connection for coronary artery disease with an effective date of January 5, 2021. He sought an earlier effective date, and a VA Regional Office denied that request on July 28, 2021.

On August 25, 2021, his non-attorney representative filed a Privacy Act request under 5 U.S.C. 552a for a complete copy of Brack's VA claims file. The cover letter added a request that the Board hold off: "Should any issues be pending [B]oard review, I am asking for a 90 day extension from the date in which the privacy act request is completed to submit additional supporting [argument]." Brack v. Collins, slip op. at 3 (quoting J.A. 129).

Brack had a statutory right under 38 U.S.C. 7105(b)(1)(A) to wait a full year before filing his notice of disagreement. He filed it two months after the Regional Office decision instead, on October 21, 2021, and the Board docketed it the next day. On that form he selected Direct Review.

The VA fulfilled the Privacy Act request on January 20, 2022 and said nothing about the extension. The Board issued its decision on March 8, 2022, denying the earlier effective date and rejecting the extension request because it found no legal basis to delay adjudication. That was 47 days after the claims file arrived. Had the Board honored the request, it could not have ruled before April 20, 2022.

Brack appealed to the Court of Appeals for Veterans Claims, arguing the Board violated that court's "fair process" doctrine. A three-judge panel affirmed. Brack did not survive the case. The Veterans Court substituted his surviving spouse, Priscilla Brack, in an order dated November 14, 2024, nunc pro tunc to December 27, 2023.

The Federal Circuit affirmed. Judge Stark, writing for Chief Judge Moore and Judge Stoll, framed the question narrowly and then answered it:

"Because such an expectation is, as a matter of law, not reasonable, we affirm the Veterans Court." Brack v. Collins, No. 2025-1205, slip op. at 3 (Fed. Cir. Sept. 8, 2026)

What the Law Actually Says

The Appeals Modernization Act, Pub. L. No. 115-55, replaced the old VA appeals process with three review options. A claimant picks one on VA Form 10182, and under 38 C.F.R. 20.202(c)(1) that choice determines the evidentiary record before the Board and the docket the appeal goes on, subject to the modification window in 38 C.F.R. 20.202(c)(2). Our guide to the three review lanes and how a rating decision moves through them walks through the practical differences; this ruling turns on one of them.

The form's own language, quoted in the opinion, tells veterans that Direct Review means "I do not want a Board hearing, and will not submit any additional evidence in support of my appeal," and warns that "[c]hoosing this option often results in the Board issuing its decision most quickly."

That warning is the heart of the case. The Evidence Submission lane gives a veteran 90 days following the Board's receipt of the notice of disagreement to submit evidence, 38 U.S.C. 7113(c)(2)(B), and the Hearing lane gives 90 days after the Board hearing, 38 U.S.C. 7113(b)(2)(B). Because those lanes build a fixed submission window into their design, a veteran who chooses either is guaranteed at least a 90-day period before receiving a decision. Direct Review carries no comparable floor.

The court was careful about a point that trips up veterans and representatives alike. Direct Review bars additional evidence, not additional argument. The VA said as much when it wrote the AMA rules, explaining in the final rule that although the modernized system confines evidence submission to certain periods, the statute and regulations do not, "apart from creating a faster review process," restrict a representative's ability to submit argument. VA said so while rejecting a comment asking it to write a reasonable time period for submitting argument into the regulations. See VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 156 (Jan. 18, 2019). A Direct Review appellant may argue. He simply has no promised stretch of time in which to do it.

The "fair process" doctrine the appellant invoked comes from the Veterans Court, not the Federal Circuit. It originated in Thurber v. Brown, 5 Vet. App. 119, 126 (1993), which held that the Board must give a veteran reasonable notice of the evidence it will consider and a reasonable opportunity to respond, even absent an explicit statutory or regulatory requirement. The Federal Circuit has acknowledged that the Veterans Court created the doctrine, see Sprinkle v. Shinseki, 733 F.3d 1180, 1185 (Fed. Cir. 2013), but has "never squarely held that it actually exists" or that it gives claimants anything beyond constitutional due process. As recently as Frantzis v. McDonough, 104 F.4th 262, 266 (Fed. Cir. 2024), the court described the doctrine as surrounded by uncertainty.

Brack did not resolve that uncertainty. The court assumed three things in the appellant's favor: that fair process exists as a right distinct from due process, that it survived the AMA, and that it applies in the Direct Review lane. Even so, it held, no veteran can reasonably expect the Board to adopt a delay period the veteran picked himself and anchored to an event of uncertain timing.

The appellant's strongest authority was Bryant v. Wilkie, 33 Vet. App. 43 (2020), where the Veterans Court held that fair process required the Board to wait 90 days after mailing a certification notice when the veteran said he intended to submit more argument. The Federal Circuit distinguished it on the ground that matters most here. The Bryant window came from a regulation, 38 C.F.R. 20.1304(a) as it then read, and it started running from an event the Board itself controlled: the mailing of the certification letter. Brack's proposed window started whenever the VA happened to finish producing his claims file, and neither the Privacy Act nor 38 C.F.R. 1.577(c) sets any deadline for that.

"Simply put, Bryant does not stand for the proposition that a claimant can manufacture a reasonable expectation of adjudicatory delay simply by naming his or her own delay period and asking the Board to adopt it." Brack v. Collins, slip op. at 14

The court also rejected an argument built on two current AMA regulations. Section 20.1304(a) gives an appellant and any representative 90 days following the Board's receipt of a notice of disagreement, "or up to and including the date the appellate decision is promulgated by the Board, whichever comes first," to request a change in representation. And 38 C.F.R. 20.202(c)(2) lets a claimant modify a notice of disagreement, including by selecting a different review option, until the later of 60 days after the Board receives it or one year after the agency of original jurisdiction mails notice of the decision on appeal. Both run from fixed, predictable events. Neither, the court held, creates an expectation that a claimant may set his own period for a different right.

Two limits on the ruling deserve attention. First, the appellant argued more broadly on appeal that fair process entitles veterans to a "reasonable time" to participate, but she had argued to the Veterans Court that fair process requires "at least 90 days." The Federal Circuit treated the broader issue as forfeited under Gurley v. McDonough, 23 F.4th 1353, 1357 (Fed. Cir. 2022), so the holding covers only the 90-day theory actually pressed below. Second, the court noted in a footnote that after Brack was decided at the Veterans Court, that court held in Williams v. McDonough, 37 Vet. App. 305, 310 (2024) that fair process bars the Board from deciding before the time to modify a notice of disagreement expires, in any lane. Because the appeal did not raise or ask the court to apply Williams, the Federal Circuit expressly declined to consider it.

Analysis: Why This Matters

The following is analysis from the Recording Law Editorial Team.

The legal holding is narrow, but the practical lesson is not. The AMA lane a veteran checks on VA Form 10182 is a scheduling decision with consequences that are easy to miss, and Brack makes those consequences explicit in a precedential Federal Circuit decision. A veteran who wants time is supposed to buy it by choosing a lane that builds time in, not by asking the Board for a favor afterward.

The sequencing in this case illustrates the trap. Brack had a year under 38 U.S.C. 7105(b)(1)(A) to file his notice of disagreement, and he had an outstanding records request with no known fulfillment date. He filed after two months anyway, into the fastest lane. Neither of the other two lanes would have delivered the cushion he actually wanted. Evidence Submission runs 90 days from the Board's receipt of the notice of disagreement, so on his own filing date that window would have closed on January 20, 2022, the same day the VA produced his claims file. The Hearing lane's 90 days runs from a hearing the Board schedules. What no lane offers is a window that starts whenever a Privacy Act request happens to be fulfilled, which is the court's point. The timing lever he did have was the statutory year under 38 U.S.C. 7105(b)(1)(A) before the notice of disagreement had to be filed at all.

The court's own arithmetic reinforces how thin the practical grievance was. The Board took 137 days from docketing to decision, longer than the 90-day submission window the Evidence Submission lane would have guaranteed. The complaint was not really that the Board rushed; it was that the clock the appellant wanted started at a different moment.

For veterans and representatives, the operative takeaway is that a Privacy Act request does not function as a scheduling motion. It is a records request, and 38 C.F.R. 1.577(c) attaches no deadline to it in either direction. Pairing it with a request for delay does not convert it into one.

We would also note what the decision leaves open. The Federal Circuit has still never held whether the fair process doctrine exists. It acknowledged the Veterans Court's creation of the doctrine in Sprinkle, described the doctrine as surrounded by uncertainty in Frantzis, and here assumed it without deciding. Counsel described the existence question as one of first impression at oral argument, and the court did not need to reach it. Williams also remains undisturbed and unexamined by the Federal Circuit, which means the question of what fair process requires about the notice-of-disagreement modification window is still open, as is the broader "reasonable time" question the court treated as forfeited. What Brack settles is narrower: a claimant-selected 90-day period measured from fulfillment of a Privacy Act request, in the Direct Review lane.

How This Affects You

This decision addresses procedure, not entitlement. Nothing in it changes what evidence supports a rating, how effective dates are set, or what a veteran is owed.

Veterans considering an appeal to the Board face a genuine tradeoff. Direct Review is the fastest route, and courts have now confirmed it comes with no promised interval before a decision issues. The Evidence Submission and Hearing lanes are slower by design, and that design is what guarantees the 90 days. Our explainer on what determines the money a granted claim pays back covers the effective-date rules that were at issue in Brack's underlying claim, and the broader VA disability benefits guide covers how ratings and claims work.

Under 38 C.F.R. 20.202(c)(2), a claimant may still modify a notice of disagreement and select a different review option, but only by completing a new notice of disagreement on the form prescribed by the Secretary, received within one year of the date the agency of original jurisdiction mails notice of the decision on appeal or within 60 days of the Board's receipt of the notice of disagreement, whichever is later. That regulation also provides that a modification request will not be granted if the appellant has already submitted evidence or testimony under 38 C.F.R. 20.302 or 20.303. Whether the Board must wait for that window to close before ruling is the subject of Williams, which the Federal Circuit has not addressed.

Systemic problems in VA appeals also get addressed through litigation other than individual appeals, as the proposed class settlement over VA appeals processing shows.

This is general legal information, not legal advice. It covers federal law governing appeals to the Board of Veterans' Appeals and reflects sources verified on September 9, 2026. Laws and VA procedures change. Consult an accredited representative or an attorney licensed in your jurisdiction about your specific claim.

Related articles

• How to appeal a VA rating decision, lane by lane
• VA disability benefits: ratings, pay rates, and how claims work
• Effective dates and VA disability back pay
• The proposed Freund v. Collins settlement over VA appeals

---

Last updated: 2026-09-09. Details verified as of 2026-09-09.