## Facts

- A veteran sought service-connected disability compensation for rheumatoid arthritis.
- A VA regional office denied the claim on the ground that the condition was not related to service.
- On appeal, the Board of Veterans’ Appeals obtained and reviewed a medical treatise concerning the type of rheumatoid arthritis at issue.
- The Board cited specific portions of the treatise in its written decision to support an adverse medical conclusion.
- The Board did not provide the treatise material to the veteran or representative, did not notify them it would rely on it, and did not allow any opportunity to rebut or comment.
- The Board denied service connection, and the veteran appealed, asserting denial of fair process.

## Issues

1. Whether the Board of Veterans’ Appeals may rely on medical treatise evidence obtained or used by the Board without first giving the claimant notice and an opportunity to respond.
2. Whether the Board’s failure to provide such notice and opportunity requires the Board decision to be vacated and the claim remanded.

## Decision

- The court held that when the Board relies on medical treatise evidence (or similar material) not previously disclosed to the claimant, it must provide notice and a reasonable opportunity to respond with evidence or argument.
- The court determined the Board committed procedural error by using undisclosed treatise material as substantive decisional support against the claimant.
- The court vacated the Board’s denial and remanded for further proceedings consistent with the required notice-and-response procedure.

## Legal Principles

- Veterans benefits adjudication requires “fair process,” including notice and an opportunity to respond when the Board intends to rely on evidence the claimant has not seen.
- Medical treatises cited to support an adverse medical conclusion function as substantive evidence, not mere background, and must be disclosed when material to the decision.
- When the Board supplements the record with new, adverse material, the claimant must be permitted to challenge applicability, submit contrary evidence, or offer argument.
- Failure to provide notice and a chance to respond to such extra-record evidence is a procedural defect warranting vacatur and remand rather than affirmance on the merits.

## Conclusion

The court required the Board to disclose and allow response to extra-record medical treatise evidence used as material support for denial, and it set aside and returned the case for a procedurally proper readjudication.


Thurber v. Brown, 5 Vet. App. 119 (1993)