Veteranclaims’s Blog

March 8, 2009

Veterans right to stop adjudication

Filed under: Veterans Rights; Stop Adjudication: Hamilton v. Brown — veteranclaims @ 2:28 am

Veteran’s right to stop an adjudication at any point of their choosing, see:
“where, as here, the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative.
A contrary result would permit the RO or Board to act in a way that could prejudice a claimant’s enjoyment of statutory and regulatory procedural rights (such as a detailed SOC under section 7105(d)) by deciding a claim on a record that had not been adequately developed. See, e.g., 38 C.F.R. ù 3.103 (1992) (right, inter alia, to written notice of an RO decision on the claim, to a hearing, to representation, to produce witnesses and introduce any available evidence and any arguments, and to VA assistance); Bernard v. Brown, __ Vet.App. __, __, No. 91-1082, slip op. at 11-13 (U.S. Vet. App. Mar. 22, 1993).”

see also Rancher v. Nicholson, No. 02-1142 and the dissent in Donovan v. Gober, No. 96-196 (Decided September 29, 1997).

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UNITED STATES COURT OF VETERANS APPEALS

No. 90-470
Stanley A. Hamilton, Appellant,

No. 91-990
Edward A. Contreras, Appellant,

and

No. 91-998
Elbert R. Powell, Appellant,

v.

Jesse Brown,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans’ Appeals
and On Appellee’s Motions for Dismissal
(Decided April 15, 1993 )

Gershon M. Ratner was on the pleadings for appellant Hamilton.

Alvin D. Wax was on the pleadings for appellant Powell.

Edward A. Contreras, pro se.

James A. Endicott, Jr., General Counsel, Norman G. Cooper, Acting
Assistant General Counsel, and Andrew J. Mullen, Deputy Assistant General
Counsel, were on the pleadings for appellee.

Before NEBEKER, Chief Judge, and KRAMER, FARLEY, MANKIN, HOLDAWAY,
IVERS, and STEINBERG, Associate Judges.

STEINBERG, Associate Judge, filed the opinion of the Court. KRAMER
and FARLEY, Associate Judges, filed dissenting opinions.

STEINBERG, Associate Judge: In an October 7, 1992, order, the Court
consolidated these three cases for en banc resolution of issues pertaining
to the Court’s jurisdiction. The Court ordered the parties to file
supplemental memoranda addressing the preliminary jurisdictional issues,
and the parties complied.
The question presented is whether, in light of the decision of the
United States Court of Appeals for the Federal Circuit in Strott v.
Derwinski, 964 F.2d 1124 (Fed. Cir. 1992), and that Court’s action in
Whitt v. Derwinski, No. 92-1017 (Fed. Cir. July 31, 1992) (single-judge
order), this Court has jurisdiction over the merits of the instant cases
on the basis of a document, purported to be a Notice of Disagreement (NOD),
filed subsequent to the original NOD filed in each case. Consideration of
this question has prompted the Court en banc to reconsider the basis for
its decision in one of its earliest cases, Whitt v. Derwinski, 1 Vet.App.
40 (1990), which held that a subsequent NOD could bestow jurisdiction on
this Court under section 402 of the Veterans’ Judicial Review Act (VJRA),
Pub. L. No. 100-687 ù 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.
A. ù 7251 note (West 1991) [hereinafter “VJRA ù 402”], as long as that
subsequent NOD was filed “in response to ‘an adjudicative determination’
made by the regional [Department of Veterans Affairs (formerly Veterans’
Administration) (VA)] activity.” Whitt, 1 Vet.App. at 42. Whether or
not this Court’s holding in Whitt was correct when made is not decided
today; those joining in the Court’s opinion include some who believe
Whitt was not correctly decided, see Whitt v. Derwinski, 1 Vet.App. 94,
95 (1990) (order denying en banc review; Steinberg, J., dissenting), and
some who believe it was correct as of the state of the law then existing.
Rather, the Court has decided that its Whitt holding is no longer viable
in the aftermath of the Federal Circuit’s actions in Strott, supra, and
Whitt, supra.
In reaching the decision to abandon our Whitt multiple-NOD holding,
the Court is not suggesting that the Federal Circuit’s Strott decision or
Whitt action compels such a result. The Circuit has left unresolved how
much of Whitt remains viable. Recognition of this vacuum has impelled the
Court to reexamine the multiple-NOD concept in light of the substantial
part of it that the Federal Circuit has clearly invalidated in Strott and
Whitt, and to conclude that the better result under those circumstances is
to abandon that concept
altogether in favor of achieving the most rational construction of the
statute consistent with the Federal Circuit’s actions invalidating
subsequent putative NODs in Strott and Whitt.
For the reasons stated in the ensuing opinion, the Court will
overrule its multiple-NOD holding in Whitt, supra. The August 18, 1992,
motion of the Secretary of Veterans Affairs (Secretary) to vacate the
Court’s August 4, 1992, opinion and to dismiss the appeal in Hamilton v.
Brown, No 90-470, for lack of jurisdiction will be granted. The
Secretary’s July 1, 1992, motion for dismissal of the appeal in Contreras
v. Brown, No. 91-990, for lack of jurisdiction will be granted in part (as
to one claim) and denied in part (as to two claims). Although the
Secretary has not filed a motion for dismissal in Powell v. Brown, No 91-
998, the Court, having raised sua sponte the issue of whether it has
jurisdiction over that appeal, will dismiss it in part for lack of
jurisdiction.

I. General Analysis
The VJRA gave this Court jurisdiction only over “any case in which [
an NOD] is filed under section 4005 [now 38 U.S.C.A. ù 7105] . . . on or
after . . . [November 18, 1988].” VJRA, ù 402 (emphasis added). The
referenced section 7105 provides that “[a]ppellate review will be
initiated by [an NOD]” and that if an NOD is not filed within “one year
from the date of mailing of notice of the result of initial review and
determination” made by the “agency of original jurisdiction” [hereinafter ”
AOJ”], the AOJ action or determination “shall become final and the claim
will not thereafter be reopened or allowed, except as may otherwise be
provided by regulations not inconsistent with this title.” 38 U.S.C.A. ù
7105(a), (b)(1), (c) (West 1991); see also 38 C.F.R. ù 20.302(a) (1992);
Strott v. Derwinski, 1 Vet.App. 114, 116 (1991), aff’d, 964 F.2d 1124 (
Fed. Cir. 1992). An NOD is defined by VA regulations as “[a] written
communication from a claimant or his or her representative expressing
dissatisfaction or disagreement with an adjudicative determination by the [
AOJ] and a desire to contest the result”. 38 C.F.R. ù 20.201 (1992).
VA regulations define an AOJ as the VA “regional office, medical center,
clinic, cemetery, or other [VA] facility which made the initial
determination on a claim or . . . its successor”. 38 C.F.R. ù 20.3(a) (
1992); see also Malgapo v. Derwinski, 1 Vet.App. 397, 398-99 (1991) (AOJ
includes, in
appropriate cases, a VA central office component). Regulations to
substantially the same effect were in existence when the VJRA was enacted
on November 18, 1988. See 38 C.F.R. ù 19.118 (1987).
Section 402 of the VJRA establishes an absolute jurisdictional
prerequisite to this Court’s exercise of its jurisdiction under 38 U.S.C.
A. ùù 7252, 7261, 7266 (West 1991). See Prenzler v. Derwinski, 928 F.
2d 392, 393 (Fed. Cir. 1991). Absent a post-November 17, 1988, NOD, the
Court has no discretion to hear an appeal. See Skinner v. Derwinski, 1
Vet.App. 2, 3 (1990) (courts may not extend their jurisdiction where none
exists (citing Christianson v. Colt Indus. Operating Co., 486 U.S. 800,
818 (1988))). As the Federal Circuit stated:
Congress set this cutoff date to allow the new court to begin
functioning with a manageable number of cases. See, e.g., 134 Cong.
Rec. S16650 (daily ed. Oct. 18, 1988) (statement of Sen. Cranston).
Congress enacted this limitation to protect the new court from a
flood of stale Board appeals. The appellant bears the burden to show
that it filed an NOD on or after November 18, 1988.
Prenzler, 928 F.2d at 394. Both the Federal Circuit and this Court have
sustained the constitutionality of VJRA ù 402. Belarmino v. Derwinski,
931 F.2d 1543 (Fed. Cir. 1991); Strott, 1 Vet.App. at 116-17.
A. This Court’s Whitt Decision
In Whitt v. Derwinski, this Court rejected the argument of the
Secretary that the only valid NOD is the first NOD filed in response to
the first AOJ adjudicative determination. Whitt, 1 Vet.App. at 42-43,
vacated, No. 92-7017 (Fed. Cir. July 31, 1992) (single-judge order),
appeal dismissed, 3 Vet.App. 258 (1992) (single-judge order). The Court
held that “there can be more than one NOD filed under certain
circumstances with respect to the same claim”, and that “any NOD which
meets the [VA regulatory] requirements of [38 C.F.R. ù 19.118 (1991) (
replaced by 38 C.F.R. ù 20.201 (1992))] is valid for purposes of
conferring jurisdiction” on this Court. Ibid. The Court based its
decision in part on the use in the regulation of the phrase “expressing
disagreement with an adjudicative determination of the [AOJ]” (emphasis
added), which it viewed as providing that any adjudicative determination
of the AOJ, rather than only the initial determination, may give rise to
an
NOD, which, in turn, would be valid for purposes of establishing this
Court’s jurisdiction. Whitt, 1 Vet.App. at 42.
B. The Federal Circuit’s Strott Decision and its Aftermath
On May 13, 1992, the Federal Circuit’s opinion in Strott v. Derwinski
affirmed an order of this Court dismissing for lack of jurisdiction an
appeal of a decision of the Board of Veterans’ Appeals (BVA or Board). Mr.
Strott’s claim for service connection was initially denied by an AOJ, here
a VA regional office (RO), adjudicative decision on September 26, 1985.
He filed an NOD on October 18, 1985. The RO again denied the claim in
December 1985 and issued a Statement of the Case (SOC) on June 2, 1986.
On July 14, 1986, the claimant submitted to the RO a VA Form 1-9 (Appeal
to the BVA) [hereinafter “1-9 Appeal”]. The RO issued another adverse
adjudicative decision on January 27, 1987, and subsequently issued a
Supplemental SOC (SSOC). On July 11, 1988, the BVA remanded the claim to
the RO for further development. On February 28, 1989, the veteran filed
an additional VA Form 1-9, purporting to express disagreement with a June
2, 1986, RO decision. He then appeared at a personal hearing before a
hearing officer at the RO on June 5, 1989, and on July 17, 1989, the
hearing officer issued a decision continuing the denial of the claim. The
BVA denied the claim in an April 4, 1990, decision, and an appeal to this
Court followed.
This Court dismissed Mr. Strott’s appeal for lack of jurisdiction,
holding that there was no valid NOD filed on or after November 18, 1988.
Strott, 1 Vet.App. at 116. The Court did not consider the February 1989 1-
9 Appeal to be a valid NOD because it purported to express disagreement
with a supposed June 1986 RO decision, whereas the record revealed no RO
decision of that date; and because, in any event, that 1-9 Appeal, having
been filed more than one year after notice of any such AOJ decision
presumably would have been mailed to the veteran, could not serve as a
valid NOD as to such decision. Ibid.
In its May 1992 opinion affirming this Court’s Strott order, the
Federal Circuit expressly limited the multiple-NOD theory of this Court’s
opinion in Whitt (which had been followed by this Court in numerous
ensuing cases). The Circuit considered and discussed
a document — a September 7, 1989, letter to the RO expressing ”
disagreement with the June 5, 1989, RO hearing” — which had not been
before this Court and which the appellant had presented to the Circuit as
constituting a jurisdictionally valid NOD. Strott, 964 F.2d at 1127.
Holding that such evidence was improperly presented to it in the first
instance, the Federal Circuit considered that letter only for the purpose
of determining whether the letter could constitute a valid NOD and thus
require that the case be remanded for this Court to decide whether the
letter was in fact a valid NOD. Upon such consideration, the Circuit held
that the June 5, 1989, hearing officer hearing was “part of the appellate
process and as such, could not provide grounds for a jurisdiction-
creating NOD.” Ibid. The Court’s analysis was as follows:
A veteran’s appeal . . . [footnote omitted] of a benefits
determination proceeds by the following course: (1) The Veteran (or
other representative, as described in 38 C.F.R. ù 19.128 [now ù 20.
201]), must file a NOD within one year of [the] date of mailing of
the unfavorable rating determination. 38 C.F.R. ù 19.129(a) [now ù
20.302(a)]. The [RO] then prepares [an SOC], as described in 38 C.F.
R. ù 19.120 [now ù 19.29]. The Veteran or his representative has
sixty days from the date of mailing of the [SOC] or the remainder of
the year dating from the mailing of notification of the unfavorable
rating determination (whichever is later) to file a VA Form 1-9 to
perfect the appeal. 38 C.F.R. ù 19.129(b) [now ù 20.302(b)]. The
text of Form 1-9 informs the Veteran that he has the “right to
request a personal hearing” and that “a personal hearing is not
necessary nor is a decision made at the time of a hearing.” . . . It
is clear from the regulations that this [RO] hearing is part of the
appellate process, even when it occurs before personnel in the field
office. 38 C.F.R. ùù 19.157(b) [now ù 20.700(b)] and 19.160(c) [
now ù 20.705(a)(3)].

Petitioner’s appeal thus presents this court with the following
legal question: Is a Form 1-9 hearing before personnel in the [RO]
field office an action from which a petitioner may file a NOD, and
thus obtain jurisdiction before the [Court of Veterans Appeals]?
When the above-described appeal process is considered in light of
Prenzler v. Derwinski, 928 F.2d at 394 [in which the Federal Circuit
had stated that the “[AOJ] is the VA agency which adjudicated the
claim before an appeal to the Board”; the AOJ “is the agency which
denied the original claim” (emphasis added)], the answer is clearly
negative. Since the [RO] field office is acting in an appellate role,
it is no longer the “agency of original jurisdiction.” Accordingly,
any written disagreement with that decision is not a valid NOD, 38 U.
S.C. ù 7105 and 38 C.F.R. ù 19.118 [now ù 20.201], and therefore
cannot function as the
statutory basis for [Court of Veterans Appeals] jurisdiction. To
the extent that Whitt v. Derwinski suggests otherwise . . . , it is
overruled.
Id. at 1127-28.
On July 31, 1992, the Circuit granted the Secretary’s motion to
vacate this Court’s decision in the Whitt appeal. Whitt v. Derwinski, No.
92-7017 (Fed. Cir. July 31, 1992) (single-judge order). The Secretary
had argued “that [the Circuit’s] ruling in Strott . . . [was] dispositive
of Whitt’s appeal.” Ibid. By unpublished order relying on the authority
of the Federal Circuit’s Strott opinion, the Federal Circuit remanded the
appeal to this Court “with instructions to dismiss Whitt’s appeal.” Id.
at 2. This Court subsequently dismissed Mr. Whitt’s appeal on September
22, 1992. Whitt v. Derwinski, 3 Vet.App. 258 (1992) (single-judge order).
C. The King and Hudson Cases
This Court has decided two cases by precedential panel action that
come within the precise Strott sequence of facts — RO adjudication/NOD/1-
9 Appeal/RO hearing/RO adjudication. In King v. Derwinski, this Court
relied upon the Federal Circuit’s Strott opinion to dismiss an appeal for
lack of jurisdiction. King, 3 Vet.App. 242 (1992) (per curiam order). Mr.
King had filed a 1-9 Appeal in 1982 requesting a hearing, and in 1986 had
testified at a personal hearing before the RO “acting on behalf of the BVA
“. Id. at 243. The Court held that the appellant’s December 1988 written
disagreement with a July 1988 RO decision was not a valid NOD because,
under Strott, “an appeal will not lie from an NOD to an adjudication made
subsequent to a VA Form 1-9 hearing.” King, 3 Vet.App. at 242.
Subsequently, in dismissing an appeal for lack of jurisdiction in
Hudson v. Principi, this Court further clarified the application of
Strott. Hudson, 3 Vet.App. 467 (1992). In Hudson, the appellant had
filed a 1-9 Appeal requesting a hearing on his claim for an increased
rating for a service-connected disability and, thereafter, in October 1988,
had testified at a personal hearing before the RO acting on behalf of the
BVA. Id. at 468. In a March 1990 RO decision, after the RO had received
a report of an examination it had ordered, the veteran’s disability rating
was increased from 30% to 50%. In May 1990, the appellant filed with the
RO a written disagreement with the March 1990 decision, to the
extent that it was adverse (that is, had denied a rating in excess of 50
%). The Court held that the March 1990 written disagreement was not a
valid NOD under Strott and King because it was filed with respect to a
claim as to which the claimant had previously filed a 1-9 Appeal and had
appeared at a “VA Form 1-9 hearing”. Ibid.
D. The Rowell Case
In Rowell v. Principi, 4 Vet.App. 9, 15 (1993), this Court held that
the timely filing of an NOD under 38 U.S.C.A. ù 7105 is a prerequisite to
the exercise of jurisdiction by the BVA over an administrative appeal
from an adverse RO determination. The Court held that to be timely filed
the NOD must be “postmarked within one year after notice of an unfavorable
RO decision is mailed to the claimant — or [be accepted] under the ‘not
inconsistent’ regulations prescribed by the Secretary” (ibid.), which in
38 C.F.R. ù 3.109(b) (1992) permit the Secretary to extend the one-year
period for “good cause . . . shown”. As indicated in part I.E.4., below,
Rowell provides important guidance on the operation of an NOD within the
VA’s administrative adjudication process.
E. Alternative Frameworks
The divergent dissenting opinions notwithstanding, the Court has
sought to extract an analytically consistent rule from the Federal
Circuit’s Strott and Whitt actions, this Court’s precedential decisions,
and the parameters of the statutory provisions.
In his dissent, Judge Kramer transforms dictum into binding precedent
. Judge Farley, on the other hand, expresses his strong preference for
the original “analysis and holding” of this Court’s opinion in Whitt.
Dissenting opinion of Farley, J., infra, at __, slip op. at 32. But,
because of the Federal Circuit’s decisions, continued adherence to that
course is not an option still available to the Court. We cannot ignore
the Circuit’s Strott opinion and Whitt order. The essence of Judge
Farley’s dissent is really directed at the Federal Circuit’s partial
overruling of and reversal in Whitt and derives from a futile hope that
Humpty Dumpty can be put back together again in toto despite the fact that
one of his principal components has been rendered totally inoperable. Our
consideration of options, therefore, is limited to those consistent with
the two Federal Circuit actions.
Beginning where the Federal Circuit left off, the following
alternative approaches have been considered:
1. Limiting Strott to its facts: Such a limited construction is not
an attractive option. Although the Federal Circuit in Strott does
suggest that it is the RO hearing requested in the 1-9 Appeal that is the ”
appellate” function performed by the RO, it is clear that a claimant
cannot express disagreement with a hearing. Rather, disagreement can be
expressed only with a decision — a “determination” or “action” under
statutory section 7105, or an “adjudicative determination” under
regulation ù 20.201. The Court finds the Strott analysis fully
applicable in a case where no hearing was held after a 1-9 Appeal to the
BVA had been filed. No decision of this Court has yet so extended Strott;
the King and Hudson cases, supra, although perhaps unusual fact
situations, both involved RO decisions made after a hearing held pursuant
to a 1-9 Appeal. However, just as the RO in Strott was acting in “an
appellate role” when it made its adverse adjudicative determination after
having held a hearing on behalf of the BVA, so would the RO be acting in
an appellate role if it were to make a post-1-9-Appeal decision without
having held a hearing on behalf of the BVA. Thus, the Court finds no
logical basis for restricting Strott to its precise facts.
2. Making Filing of 1-9 Appeal Determinative: Appellant Hamilton
makes a credible argument that the Federal Circuit in Strott endorsed the
multiple-NOD Whitt holding as to other than the precise Strott fact
sequence of a 1-9 Appeal, a hearing, and subsequent RO adjudication.
This argument is based on the following Strott sentence: “If such a
hearing and the subsequent decision of July 17, 1989[,] qualify as an
‘adjudicative determination of an agency of original jurisdiction,’ then
it would be a jurisdiction-creating NOD.” 964 F.2d at 1127. To the
extent that this sentence bears such a reading, the Circuit’s action in
ordering this Court to vacate its Whitt opinion would be inconsistent with
such a construction. That is because, as the ensuing discussion shows,
in Whitt the October 21, 1988, RO hearing in question was a hearing
conducted by the RO for itself, not for the BVA, and was not requested by
Mr. Whitt in a 1-9 Appeal.
The relevant facts in Whitt were as follows: On August 12, 1988, the
RO denied a VA pension claim. On August 22, 1988, the claimant filed an
NOD on a VA Form 21-4138
(“Statement in Support of Claim”), in which he specifically requested a
hearing, in his own words, “before the hearing officials at a hearing
called by the VA.” On October 4, 1988, the RO issued an SOC, which
instructed the claimant to file a 1-9 Appeal within 60 days, and which
also stated: “You will be notified by separate letter of the date and
place of your requested personal hearing.” R. at 70. On October 21, 1988,
the claimant testified under oath at a personal hearing before the RO.
On that same day, October 21, 1988, the RO received his 1-9 Appeal, in
which he had specifically indicated (in box 9A) that he did not then wish
to request a hearing before the BVA or the RO field office. The hearing
officer then issued a decision, on November 8, 1988, denying the claim
again, and on January 5, 1989, the claimant filed with the RO a written
disagreement with that decision. R. at 89.
In its Strott opinion, the Federal Circuit held that a hearing
requested in the 1-9 Appeal was part of the appellate process. In Whitt,
on the other hand, it is clear that the October 21, 1988, RO hearing was
not a hearing requested by the claimant in his 1-9 Appeal, but had been
requested (and may even have been held) before the 1-9 Appeal was filed.
In view of the foregoing, the Federal Circuit’s Whitt single-judge
order establishes two things. First, as concluded in part I.E.1., above,
whether or not a post-1-9-Appeal-hearing is held is not determinative of
the NOD issue; the Circuit in Whitt invalidated a “multiple” NOD
notwithstanding that there had not been a post-1-9-Appeal hearing.
Second, although the Federal Circuit in Strott specifically overruled
Whitt to the extent that it was inconsistent with Strott, the Circuit’s
subsequent reversal of Whitt strongly suggests that the Circuit’s
invalidation of this Court’s Whitt multiple-NOD theory extends beyond the
facts of Strott.
Moreover, the Federal Circuit had an opportunity to hold that it was
preserving parts of Whitt when it overruled the opinion in Strott and
when in Whitt it vacated our judgment as to Mr. Whitt. The Circuit did
not avail itself of that opportunity.
3. Focusing Solely on the “Appellate Role”: Reliance solely on this
helpful rubric, without further analysis, would not provide a complete
conceptual framework because there
is nothing in the law (or the regulations) which affords a basis for
concluding that the “appellate role” does not begin with the filing of the
NOD (“appellate review” is “initiate[d]” by that action according to
section 7105(a)) rather than with the filing of the 1-9 Appeal, which ”
complete[s]” (section 7105(a)) or “perfects” (ù 19.123 (now ù 20.202)) ”
appellate review”. 38 U.S.C.A. ù 7105(a) (West 1991); 38 C.F.R. ù 20.
202 (1992).
4. Treating an NOD as an NOD: The NOD referred to in VJRA ù 402 is
one “filed under section 4005 [now 38 U.S.C.A. ù 7105] of title 38,
United States Code”. The purpose of the NOD, to which VJRA ù 402 refers
as one “filed under section 4005”, is to “initiate” BVA “appellate review”
by letting VA know, within one year from the date of VA’s “mailing of
notice of the result of initial review or determination [by the AOJ]”, of
the intent to appeal to the BVA. 38 U.S.C.A. ù 7105(a), (b) (West 1991).
Thus, the NOD is to obtaining BVA review what a Notice of Appeal (NOA)
under 38 U.S.C.A. ù 7266(a) (West 1991) is to obtaining review in this
Court if the NOA is filed “within 120 days after the date on which notice
of the decision is mailed [by the BVA].” Just as there is no need to file
more than one NOA to obtain review here, so there is no need to file more
than one NOD to obtain BVA review of the denial of a particular claim.
In using the filing of the NOD after a date certain as a
jurisdictional prerequisite for an appeal to this Court, Congress
specifically and deliberately chose an action which claimants are required
by law to take within a certain time period in order to obtain
administrative appellate review by the BVA. 38 U.S.C.A. ù 7105(b); see
Belarmino, 931 F.2d at 1544; Strott, 1 Vet.App. at 116-17. Congress did
not establish another kind of NOD for purposes of conferring jurisdiction
on this Court over a particular case. Rather, it specifically provided in
VJRA ù 402 that the NOD securing basic eligibility for judicial review
here would be one filed “under section [7105]”, not a document which would
be superfluous for purposes of securing entitlement to administrative
appeal to the BVA.
The VA regulations adopted on February 3, 1992, and those proposed on
that date and still pending provide evidence that the VA regulatory
definition of an NOD now in 38 C.F.R. ù 20.201 (1992) (formerly in ù 19.
118 (1987)) (“written . . . dissatisfaction . . . with an [AOJ]
adjudicative determination”) is not inconsistent with a rule that only one
NOD may be filed with respect to a particular claim. In new 38 C.F.R. ù
20.201, adopted in
February 1992, VA used exactly the same language found in the ù 19.118
definition in 1988. On the same day that it promulgated ù 20.201, VA
also proposed adding subsection (b) to ù 20.201 (and redesignating
existing ù 20.201 as ù 20.201(a)) to provide that “only one [NOD] will
be accepted[] with respect to any one issue.” 57 Fed. Reg. 4088, 4135 (
1992). This strongly suggests that the language of ù 19.118 (now ù 20.
201) is not inconsistent with a requirement that only one NOD may be filed
with respect to each claim. (The Court uses the term “claim” to refer to
an application for VA benefits with respect to a specific “issue”, as the
latter term is used in the proposed, pending VA regulations. See 38 C.F.R.
ù 20.3(f) (1992) (a “claim” is an “application” for VA benefits); 57 Fed.
Reg. 4088, 4134 (1992) (proposing new 38 C.F.R. ù 20.3(k) to define ”
issue” generally as “the ultimate question to be decided in determining
whether or not a particular benefit sought on appeal will be granted
. . .[,] includ[ing] all subsidiary questions which must be resolved in
reaching that determination”, and stating that “whether service connection
should be granted for a particular disability” is an example of an “issue
“).)
Moreover, as the Federal Circuit’s opinion in Strott indicates, the
regulatory definition spells out what an NOD is by specifying its elements
— (1) a written communication, (2) from a claimant or representative, (3)
expressing disagreement with an AOJ adjudication — and not its effects.
See Strott, 964 F.2d at 1126-27. The effect, really the function of the
NOD, is prescribed by the operative statutory provisions of section 7105:
as noted above, the NOD (1) initiates appellate review and (2) prevents
the AOJ decision from becoming final one year after it is entered. Even
if there were a conflict between the regulation and the law, the statutory
provisions would prevail; any regulatory definition of an NOD must
incorporate and be derived from the full context of section 7105 (formerly
ù 4005). Definitions, whether statutory or regulatory, are not
themselves operative provisions of law. See Sutherland Stat. Const. ù
27.02, at 459 (1985). Rather, such a statutory, or, as here, regulatory,
definition is no more than an appositional phrase to be inserted, for
interpretive purposes, after the defined term in the operative statutory
provision — here section 4005 when VJRA ù 402 was enacted in 1988. Cf.
Talley v. Derwinski, 2 Vet.App. 282, 287 (1992) (statutory presumption of
total disability based on objective
factors does not restrict statute’s operative provision establishing
entitlement to benefits for total disability based on subjective factors).
Accordingly, we hold that there is no difference between a title 38
section 7105 NOD and one which is an NOD for purposes of VJRA ù 402. A
section 7105 NOD is one which carries out the function of initiating the
appeal to the BVA. We further hold that no subsequent NOD may be found as
to a claim with respect to the denial of which the NOD has been filed
unless (a) the NOD has been withdrawn; or (b) the appeal has been closed
by the RO due to the claimant’s failure to file a timely 1-9 Appeal after
issuance of the SOC (that is, the RO decision becomes final); or (c) the
full benefits sought on appeal have been granted by the RO; or (d) a final
appellate decision has been issued by the Board. In other words, only if
the claimant would have to file another NOD in order to avoid an RO
adjudication’s becoming final after a year could there be a subsequent NOD
. See Rowell, 4 Vet.App. at 15. This is the result proposed in the
pending VA regulations published on February 3, 1992. See 57 Fed. Reg.
4088, 4134-35 (1992) (proposing 38 C.F.R. ù 20.201(b)); see also id. at
4133 (proposing 38 C.F.R. ù 19.39 to outline procedures for determining
whether an appeal has been fully satisfied when the RO grants benefits
sought in a claim that had been appealed to BVA).
One further aspect of this issue needs to be addressed. Section 7105(
d)(1) directs an RO, upon receipt of an NOD, to undertake “such
development or review action as it deems proper” prior to issuing an SOC.
Under an interpretation of the Federal Circuit’s Strott decision that
would make the 1-9 Appeal and a subsequent hearing the defining events for
determining when another NOD is precluded, such additional review by the
RO, if it were to result in another adjudication, could conceivably give
rise to another NOD, since no 1-9 Appeal would yet have been filed.
However, viewing the VJRA ù 402 inquiry as whether another NOD is
required in order to preclude a claim from becoming final, it is obvious
that RO re-review under section 7105(d)(1) could not give rise to another
NOD because an NOD would already have been filed initiating review of that
claim, and the appeal would proceed to the BVA pursuant to that NOD,
unless it were expressly withdrawn
by the claimant, or a 1-9 Appeal were not filed, or all benefits that had
been requested had been awarded. See Rowell, supra.
5. Determining that an NOD Pertains to a Specific “Claim”: Although
VJRA ù 402 refers to the filing of an NOD in “a case”, it does so only in
terms of a filing “under section [7105]”. Hence, section 7105 again
provides the context. That context emerges from subsection (c) of section
7105, which sets forth the second major attribute of an NOD (the first is
to “initiate” appeal to the BVA) — that an NOD stops an RO adjudication
from becoming “final”, a status which generally precludes a “claim” from
thereafter being “reopened or allowed”. Subsection (d)(1) of section 7105
is also claim-specific as to “the benefit sought”, and subsection (d)(1)(A)
refers to the “issue or issues with which disagreement is expressed”. The
word “claim” takes its statutory context from title 38 sections 5101(a) — ”
a claim” “for benefits to be paid or furnished” — and 5102, which, in
effect, requires an application to be filed in making a claim for benefits
. 38 U.S.C.A. ùù 5101(a), 5102 (West 1991); see also Tucker v.
Derwinski, 2 Vet.App 201, 202 (1992) (Court had jurisdiction over only one
of three claims adjudicated by the BVA, because the other two claims had
been the subject of pre-November 18, 1988, NODs and “the fact that the
three appeals were fortuitously consolidated into one decision cannot give
jurisdictional life to adjudications that Congress has forbidden this
Court from considering”).
The existing VA regulations deal with this very specifically by
providing in 38 C.F.R. ùù 20.201 and 20.202 (1992) that the claimant is
to specify in the NOD and 1-9 Appeal the issues with which he or she is
expressing disagreement. The pending, proposed VA regulations would go
further by providing a definition for “issue” and subissue. See 57 Fed.
Reg. 4088, 4134 (1992) (proposing to add a new 38 C.F.R. ù 20.3(k),
quoted in part I.E.4, supra).
6. Not Allowing a New NOD After RO Proceedings Pursuant to a BVA
Remand: Pursuant to the above analysis, it is clear where the BVA has
remanded a claim to the RO (and especially clear where the BVA has
expressly provided that the claim will automatically be returned to the
BVA for consideration after the RO action on remand is completed) that no
valid section 7105 NOD could be filed with respect to the RO’s
adjudicative
determinations on remand because the claim would still be on appeal to
the BVA by virtue of the previous NOD and 1-9 Appeal. Since any
expression of disagreement with the RO adjudications on remand could not
be a section 7105 NOD for any claim as to which there was an adverse RO
adjudication rendered prior to, and still pending, appeal to the BVA, any
such document could not constitute an NOD conferring jurisdiction on this
Court under VJRA ù 402 as to such a claim.
This result would obtain whether or not the Board’s remand
instruction contained the automatic-return provision. The existing VA
regulations anticipate such express instructions by providing that after
the RO adjudication on remand “the case will be returned to the Board for
further appellate processing” unless the RO grants all the benefits sought
in the appealed claim and informs the veteran that the appeal has been
closed, or the claimant withdraws the appeal. 38 C.F.R. ù 19.38 (1992) (“[
r]emanded cases will not be closed for failure to respond to the [SSOC]”);
see also 38 C.F.R. ù 20.1101(b) (1992) (“remand is in the nature of a
preliminary order and does not constitute a final Board decision”).
Consequently, RO adjudicative action as to a claim denied by the RO,
appealed to the BVA, and then remanded from the BVA to the RO generally
could not give rise to an additional NOD as to that claim for purposes of
section 7105 and VJRA ù 402. See also 57 Fed. Reg. 4088, 4133 (1992) (
proposing 38 C.F.R. ù 19.39 to establish that when RO grants some
benefits in an appealed claim, the appeal to the Board will continue
unless it is “clear” that all benefits sought have been granted, and that
if there is “any question” whether all benefits sought have been granted,
the appeal will continue unless the claimant notifies the RO that the
award has completely satisfied the appeal). Although ù 19.38 and
proposed ù 19.39 are somewhat ambiguous, we read VA’s existing and
pending regulations regarding remands to ROs as providing for automatic
return to the BVA of only those remanded claims which were denied by the
RO prior to the pre-remand appeal to the BVA.
F. General Principles
The following general principles emerge from the preceding analysis:
First, we do not construe Strott as requiring that a 1-9-Appeal
hearing (that is, a hearing carried out by the BVA, or RO for the BVA,
following the filing of a 1-9 Appeal) is necessary before the
administrative appellate process has begun.
Second, we overrule this Court’s multiple-NOD holding in Whitt, 1 Vet.
App. at 40. There can be only one valid NOD as to a particular claim,
extending to all subsequent RO and BVA adjudications on the same claim
until a final RO or BVA decision has been rendered in that matter, or the
appeal has been withdrawn by the claimant. See 57 Fed. Reg. 4088, 4135 (
1992) (proposed to be codified at 38 C.F.R. ù 20.201(b)). Accordingly,
we also overrule Malgapo, 1 Vet.App. at 398-99, to the extent that it
holds that a 1-9 Appeal as to a particular claim can itself be an NOD if
filed after an NOD has already been filed as to that claim.
Third, where the BVA remands to an RO for further development and
readjudication a claim previously decided by the RO and properly appealed
to the BVA (see Rowell, 4 Vet.App. at 14-16) (unless all benefits sought
are awarded on remand or the claimant expressly withdraws the appeal), an
expression of disagreement with a subsequent RO readjudication on remand
cannot be an NOD.
Fourth, where the BVA remands to an RO for development and
adjudication a claim not decided by the RO (and as to which no NOD has
ever been filed, and which thus is not an appealed claim) and the claimant
files a timely expression of disagreement with the RO, that expression is
an NOD as to that claim, which then becomes an appealed claim, even
though the BVA may also have remanded to the RO concurrently a claim which
had been previously decided by the RO, as to which a prior NOD had been
timely filed, and which thus was already an appealed claim.
G. Retroactivity
The Court has considered the question of retroactive application of
the holdings made today and takes note of two lines of Federal authority.
One holds that a jurisdictional holding cannot be made prospective only.
See Budinich v. Dickinson and Co., 486 U.S. 196, 203 (1988) (quoting
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379-80 (1981): ”
court lacks discretion to consider the merits of a case over which it is
without jurisdiction, and thus, by definition, a jurisdictional ruling
may never be made prospective only”); U.N.R. Industries, Inc. v. United
States, 962 F.2d 1013, 1025 (Fed. Cir. 1992). As the Federal Circuit held
recently:
[W]e must abide by the ‘age-old rule that a court may not in any case,
even in the interests of justice, extend its jurisdiction where none
exists.’ Christianson, 486 U.S. at 818 (1988); see also Johns-
Manville [Corp. v. United States], 855 F.2d [1556,] 1565 [(Fed. Cir.
1988), cert. denied, 489 U.S. 1066 (1989)]. We have no discretion to
apply this judgment only prospectively.
Id. at 1017.
The other line of cases derives from Chicot County Drainage Dist. v.
Baxter State Bank, 308 U.S. 371 (1940), which the Supreme Court very
recently reaffirmed and characterized as holding as follows:
[A] judgment rendered in a case in which it was ultimately concluded
that the District Court was without jurisdiction was nonetheless res
judicata on collateral attack made by one of the parties. See also
Stoll v. Gottlieb, 305 U.S. 165 (1938). In Stoll, we observed that
the practical concern with providing an end to litigation justifies a
rule preventing collateral attack on subject matter jurisdiction.
Id. at 172.
Willy v. Coastal Corporation, 112 S.Ct. 1076, 1080 (1992); see also
Insurance Corp. of Ireland v. Compagnie Des Bauxites, 456 U.S. 694, 702 n.
9 (1982) (“party that has had an opportunity to litigate the question of
subject-matter jurisdiction may not, however, reopen that question in a
collateral attack upon an adverse judgment”). In Chicot County, the
Supreme Court further held:
The remaining question is simply whether respondents having failed to
raise the question in the proceeding to which they were parties and
in which they could have raised it and had it finally determined,
were privileged to remain quiet and raise it in a subsequent suit.
Such a view is contrary to the well-settled principle that res
judicata may be pleaded as a bar, not only as respects matters
actually presented to sustain or defeat the right asserted in the
earlier proceeding, “but also as respects any other available matter
which might have been presented to that end”. Grubb v. Public
Utilities Commission, [281 U.S. 470 (1930)]; Cromwell v. County of
Sac, [94 U.S. 351 (1876)].
Chicot County, 308 U.S. at 378 (emphasis added).
The holdings in Chicot County were made even though the district
court there had not specifically addressed its jurisdiction, which the
Supreme Court held was lacking because the bankruptcy statute under which
it was proceeding was subsequently declared unconstitutional. The Court
stated:
There can be no doubt that if the question of the constitutionality
of the statute had actually been raised and decided by the District
Court in the proceeding to effect a plan of debt readjustment in
accordance with the statute, that determination would have been final
save as it was open to direct review on appeal. Stoll v. Gottlieb,
supra.
Id. at 377-78. Finally, the Supreme Court set forth this philosophical
approach to determining whether a later-found jurisdictional defect is to
be applied retroactively:
The past cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be
considered in various aspects — with respect to particular relations,
individual and corporate, and particular conduct, private and
official. Questions of rights claimed to have become vested, of
status, of prior determinations deemed to have finality and acted
upon accordingly, of public policy in the light of the nature both of
the statute and of its previous application, demand examination.
These questions are among the most difficult of those which have
engaged the attention of courts, state and federal, and it is
manifest from numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified.
Id. at 374 (emphasis added).
Against this background, it is clear that this Court must apply the
new jurisdictional rule to the three cases before it. As to future
applications of this rule in cases not pending before the Court, we
announce today our strong disinclination to apply the rule retroactively,
absent extraordinary good cause to do so.
We will now apply the foregoing discussion to the three cases
consolidated in this appeal. (Record page citations refer to the record
on appeal in the case under discussion.)

II. Hamilton v. Brown
A. Facts: The veteran filed his claim for service connection for
post-traumatic stress disorder in April 1986. R. at 40. In May 1986, the
RO denied the claim. R. at 49. In June 1986, the veteran filed an NOD.
R. at 53. In July 1986, he filed a 1-9 Appeal and requested a hearing at
the RO, as part of the “appellate process”. See Strott, 964 F.2d at 1128 (”
It is clear from the regulations that [the 1-9 Appeal] hearing is part of
the appellate process, even when it occurs before personnel in the field
office. 38 C.F.R. ùù 19.157(b) and
19.160(c) [now ùù 20.700(b) and 20.705(a)(3)].”); R. at 61. He
testified under oath before the RO in September 1986. R. at 63.
In June 1987, the BVA remanded the claim for the RO to obtain service
personnel records and for a psychiatric examination of the veteran. R. at
85. The remand decision directed (presumably pursuant to VA regulations
then in effect, 38 C.F.R. ù 19.182(c) (1987) [now ù 19.9]) that the RO
readjudicate the claim after the required development; that, “[i]f the
determination remains adverse to the veteran, the case should be returned
to the Board together with all additional evidence developed”; and that “[
n]o action is required of the veteran until he receives further notice.”
R. at 87. In January 1988, the RO again denied the claim. R. at 93. In
February 1988, the RO issued an SSOC. R. at 95. In March 1988, the
veteran’s representative filed with the RO a statement expressing
disagreement with the RO decision and the SSOC. R. at 102.
In December 1988, the BVA again remanded the claim to the RO,
directing that another psychiatric examination be performed, and directing
that the claim “be returned to the Board” if the decision on remand
remained adverse and that “[n]o action is required by the veteran until he
receives further notice”. R. at 115. In February 1989, the RO denied the
claim. R. at 127. On March 6, 1989, the RO issued an SSOC. R. at 128.
On March 22, 1989, the veteran filed a 1-9 Appeal seeking appeal of a ”
3/17/89″ decision and requesting a hearing at the RO. R. at 134. In May
1989, he testified under oath at an RO hearing. R. at 136. In August
1989, the hearing officer denied the claim. R. at 152. In September 1989,
the veteran’s representative filed a statement requesting review by the
BVA. R. at 153.
On February 14, 1990, the BVA denied the claim in the decision which
the claimant has sought to appeal to this Court. On August 4, 1992, this
Court issued an opinion vacating that BVA decision and remanding the
matter to the Board for readjudication. Hamilton v. Derwinski, 2 Vet.App.
671 (1992). On August 18, 1992, the Secretary filed a motion for the
Court to vacate its August 4 opinion and to dismiss the appeal for lack of
jurisdiction.
B. Analysis: The Secretary’s August 18, 1992, motion to vacate the
Court’s opinion and dismiss the appeal is a timely challenge to this
Court’s jurisdiction, and the Court is thus required to consider it. See
Budinich, 486 U.S. at 203; U.N.R. Industries, Inc., 962 F.2d
at 1025; Skinner, 1 Vet. App. at 3; discussion in part I.G., above.
Pursuant to Rule 35 of the Court’s Rules of Practice and Procedure, either
party, within 14 days after the date of a Court decision, may move for
reconsideration or en banc review of such decision. Therefore, the
Secretary’s August 18, 1992, jurisdictional challenge, which was raised
within the 14-day period for requesting reconsideration or review, is not
a collateral jurisdictional attack on a prior final judgment of this Court
and is not subject to the principle, announced in part I.G., above, that
the Court is strongly disinclined to apply today’s jurisdictional ruling
retroactively as to cases not pending before the Court.
Having thus considered the Secretary’s motion, the Court holds that
this appeal must be dismissed for lack of a jurisdictionally valid NOD,
because the RO’s actions on remand related to the original claim which
had already been placed in an “appellate” status (Strott, 964 F.2d at
1128) by the June 1986 NOD. Therefore, there was no function that a new
NOD could have performed in VA’s adjudication process and, consequently, a
VJRA ù 402 NOD could not have been filed insofar as this Court’s
jurisdiction is concerned.

III. Contreras v. Brown
A. Facts: In June 1986, the veteran filed his claim for service
connection of a right-knee disability. R. at 67. In a December 1986
decision, the RO indicated that the claim actually comprised two claims —
a claim that a preexisting right-knee injury had been aggravated by
service, and a claim under 38 U.S.C. ù 351 (now ù 1151) (hereinafter
referred to as “section 1151 claim”) that his right-knee injury had been
aggravated by treatment during his participation in a VA Medical Center (
MC) drug rehabilitation program (the specific allegations of this section
1151 claim were later clarified in his June 1987 testimony, as explained
below). R. at 72-74. The RO denied both claims. R. at 72-74. In March
1987, the veteran filed an NOD. R. at 70. In April 1987, the RO issued
an SOC. R. at 66-69. In a March 1988 Form 21-4138, the veteran raised
two additional section 1151 claims, asserting that he had suffered an
injury to his left knee and back as a result of treatment at a VA facility
. R. at 62-63. (The veteran’s 1-9 Appeal is not in the record. It
further
appears that the veteran testified before the RO in June 1987, but the
transcript of that hearing is also not in the record.)
On May 12, 1989, the BVA issued two decisions. One of those
decisions denied the claim for direct service connection of the right-
knee condition and is not involved in the instant appeal. R. at 48. The
other decision remanded to the RO the veteran’s section 1151 claim for
service connection of the right knee. R. at 53. In the decision
remanding, the Board stated that the veteran, in his June 1987 RO hearing
testimony, had stated that he had injured his left knee during a VA drug
rehabilitation program in October 1985 when he was forced to scrub a
floor with a toothbrush; that the resulting left-knee disability had
caused a fall in March 1986, resulting in additional injury to his right
knee; and that, during surgery at a VA hospital in March 1986 to repair
his right knee, his back had been injured due to VA negligence. R. at 54.
The Board noted that the veteran’s section 1151 claim for service
connection of the right-knee disability was dependent upon his section
1151 left-knee claim, and that the RO had not previously adjudicated the
left-knee and back claims. The Board, therefore, remanded the section
1151 right-knee claim to the RO and instructed the RO on remand to
adjudicate the not-yet-adjudicated section 1151 left-knee and back claims.
R. at 54-55. The Board stated that the veteran should be given a chance
to respond to the decision before the records were returned to the Board
and that “[n]o action is required of the veteran until he is further
notified.” R. at 55.
In July 1989, the RO denied service connection under section 1151 for
the right-knee, left-knee, and back disabilities (R. at 46), and on July
24, 1989, issued an SSOC, along with a letter stating:
If this [SSOC] . . . contains an issue which was not included in any
prior [SOC or SSOC], you must respond within 30 days to perfect your
appeal of the new issue. If you do not timely file a Substantive
Appeal [a 1-9 Appeal] as to the new issue(s), we will place your
records on the docket of the [BVA] for review of the prior issues,
and the [BVA] will provide you with a copy of its decision.
R. at 42-45 (emphasis added). On September 14, 1989, the veteran’s
representative filed with the RO a statement in support of the veteran’s
appeal to the BVA that stated that the veteran had failed to respond to
the SSOC within the RO-prescribed 30-day period, and
requesting review by the BVA of the left-knee and back claims. R. at 37
. The record also contains an undated letter from the veteran in response
to the July 24, 1989, SSOC. R. at 38. In an October 2, 1989, adverse
decision, the RO noted that it had received the veteran’s response to the
SSOC (apparently the undated letter), and directed that the claim be
returned to the BVA. R. at 36.
In April 1990, the BVA again remanded to the RO the section 1151
right-knee, left-knee, and back claims, with instructions to obtain new
copies of hospitalization records which apparently had been separated from
the claims folder. R. at 14-16. The Board further provided that the RO
was required to issue an SSOC if the claim remained denied after the RO
action on remand, and that, “[a]fter [the veteran and his representative]
have had adequate opportunity to respond, the case should be returned to
the Board for further appellate review, if otherwise in order.” R. at 16.
There is no indication in the record that the RO ever issued another
decision pursuant to that remand. The claim was apparently returned
directly to the BVA for adjudication. On March 28, 1991, the Board denied
service connection under section 1151 for the right-knee, left-knee, and
back disabilities.
B. Analysis: As to the right-knee section 1151 claim, the Court
holds that there is no jurisdictionally valid NOD and the Court is thus
without jurisdiction because the appeal as to that claim had been
initiated by the veteran’s March 1987 NOD. (As noted above, the
veteran’s claim for direct service connection for a right-knee disability
was finally denied by the May 12, 1989, BVA decision and is not part of
the present appeal.)
However, there is a valid NOD as to the section 1151 left-leg and
back claims. There is no indication in the record that these two claims
were before the RO at the time of its initial determination in December
1986, and, therefore, the veteran’s March 1987 NOD as to that
determination did not, because it could not, comprehend those claims. The
RO’s July 1989 denial pursuant to the BVA remand was the first
adjudication of those claims, and the September 14, 1989, letter from the
veteran’s representative requesting review of the left-leg and back
claims thus constitutes a valid NOD as to those claims. The Court notes
that, despite the RO’s 30-day notice warning, the RO was authorized to
require from the claimant, under law and regulation, only that he file an
NOD within one year from the date
on which notice of an adverse RO adjudication was sent or file a 1-9
Appeal within 60 days after an SOC or SSOC. In this case, notwithstanding
the RO’s notice, the claimant was entitled to a period of one year from
the date of the July 1989 RO adverse adjudication in order to respond with
an NOD to the initial denial of those claims.

IV. Powell v. Brown
A. Facts: In December 1985, the veteran initially filed claims for
service connection for lung cancer, tuberculosis (TB), and “nerves”. R.
at 137. On August 12, 1986, the RO deferred a decision on those claims
pending receipt of service medical records and verification of radiation
exposure. The veteran’s radiation-exposure information was subsequently
received from the Air Force in March 1987, R. at 189, having been
reconstructed pursuant to evidence of his participation in Operation
Redwing, R. at 181. On August 7, 1987, the RO denied service connection
for left-lung cancer and Hodgkin’s disease (HD) as unrelated to the
veteran’s in-service radiation exposure. R. at 194-95. (The RO
apparently included the HD claim because the veteran’s medical records
showed that he had the disease and that he related it to his in-service
radiation exposure. R. at 187-93, 258-60.)
On November 20, 1987, the veteran filed an NOD and requested a
hearing. R. at 196. On January 9, 1988, the RO issued an SOC. R. at 197
. On April 28, 1988, the veteran filed a 1-9 Appeal, and requested a
hearing at the RO (as part of the “appellate process”). R. at 202. In
that 1-9 Appeal, the veteran (through his representative) stated that he
suffered from numerous diseases, including lung cancer, HD, autoimmune
hemolytic anemia, premature aging, osteoporosis, osteomyelitis, and a
lymphatic disorder. Ibid. In May 1988, he submitted a memorandum in
support of his claims, asserting entitlement to service connection based
on radiation exposure for the numerous conditions listed in the 1-9 Appeal
. R. at 204-22.
On June 1, 1988, he testified under oath at an RO hearing. R. at 223-
48. The hearing officer asked whether the veteran wanted to amend his
claim to include the issues of service connection for conditions other
than lung cancer and HD; after some discussion, in which the veteran
stated that he did not want his claim to be delayed any further and a
recommendation by the hearing officer that he proceed only with the two
claims, the hearing officer stated that he would leave the claim as it was
and that “the only issue will be service connection for carcinoma of the
lung and [HD] with anemia.” R. at 247. Despite this, on January 10, 1989,
the RO denied service connection for osteomyelitis, osteoporosis, and
premature aging, as well as for lung cancer and HD with anemia. R. at 262.
On January 19, 1989, the veteran’s representative sent a letter to
the RO, submitting evidence of the veteran’s exposure in service to
additional radiation, pursuant to his refueling of airplanes that had
participated in nuclear testing in Operation Teapot. R. at 267-73. On
January 27, 1989, the RO issued an SSOC, addressing only the issues of
service connection for lung cancer and HD. R. at 264. In March 1989, the
veteran submitted a “Supplemental Memorandum In Support Of Service-
Connected Veteran’s Disability Benefits”, setting forth “additional facts
” (concerning his participation in Operation Teapot) and asserting that
he had submitted sufficient evidence of service connection for “his many
medical afflictions”, though not specifically mentioning osteomyelitis,
osteoporosis, or premature aging. R. at 274-80.
On May 17, 1989, he again testified under oath before the RO. R. at
281-86. On March 20, 1990, the hearing officer denied service connection
for lung cancer and HD. R. at 290. On April 2, 1990, the RO issued an
SSOC as to those two claims. R. at 293. On June 6, 1990, the veteran
filed another 1-9 Appeal, referring specifically only to lung cancer. R.
at 295. On May 7, 1991, the BVA denied service connection for lung cancer
and HD. It did not mention osteomyelitis, osteoporosis, or premature
aging. In his Statement of Issues and brief filed in this Court on August
19, 1991, and March 25, 1992, respectively, the appellant, through counsel,
specifically challenged the BVA’s failure to adjudicate the latter three
claims.
B. Analysis: As to the lung-cancer and HD claims, the Court holds
that there is no jurisdictionally valid NOD and that the Court, therefore,
has no jurisdiction (even on the narrowest interpretation of the Federal
Circuit’s opinion in Strott, supra, and this Court’s decision in King,
supra).
As to the osteoporosis, osteomyelitis, and premature aging claims,
however, at the June 1988 RO hearing, the claimant had decided, pursuant
to discussion with and
recommendation from the RO hearing officer, to limit the case then under
adjudication to the issues of service connection for lung cancer and HD.
See R. at 245-47. Although our decisions in Myers v. Derwinski, 1 Vet.
App. 127, 129 (1991), and EF v. Derwinski, 1 Vet.App. 324, 326 (1991),
require that the Board and the RO adjudicate all claims reasonably raised
by the claimant up until its decision, a corollary of that rule is that
where, as here, the claimant expressly indicates an intent that
adjudication of certain specific claims not proceed at a certain point in
time, neither the RO nor BVA has authority to adjudicate those specific
claims, absent a subsequent request or authorization from the claimant or
his or her representative.
A contrary result would permit the RO or Board to act in a way that
could prejudice a claimant’s enjoyment of statutory and regulatory
procedural rights (such as a detailed SOC under section 7105(d)) by
deciding a claim on a record that had not been adequately developed. See,
e.g., 38 C.F.R. ù 3.103 (1992) (right, inter alia, to written notice of
an RO decision on the claim, to a hearing, to representation, to produce
witnesses and introduce any available evidence and any arguments, and to VA assistance); Bernard v. Brown, __ Vet.App. __, __, No. 91-1082, slip op. at 11-13 (U.S. Vet. App. Mar. 22, 1993). After that June 1988 hearing, the veteran’s representative did, on one occasion, refer to the veteran’s “many disabilities” resulting from radiation exposure but did not
specifically mention osteomyelitis, osteoporosis, or premature aging.
Thereafter, those three claims were not mentioned by the claimant, his
representative, the RO (including in the SSOC), or the BVA until appellant,
through counsel, filed his Statement of Issues in this Court on August 19,
1991, asserting, inter alia, that the Board had erred in failing to make
findings regarding the relationship of osteomyelitis, osteoporosis, and
premature aging to the veteran’s radiation exposure.
Moreover, there seems to be no indication that the veteran ever filed
the requisite formal application as to the three additional claims. See
38 U.S.C.A. ù 5101(a) (West 1991) (claim must be filed in form prescribed
by Secretary in order for benefits to be paid under laws administered by
VA); 38 C.F.R. ù 3.150(a) (1992) (to the same effect). “If a claimant’s
application . . . is incomplete, the Secretary shall notify the claimant
of the
evidence necessary to complete the application” and “no benefits may be
paid or furnished by reason of such application” unless such necessary
evidence is received within one year after the date of such notification.
38 U.S.C.A. ù 5103(a) (West 1991). As a legitimate exercise of his
authority, under 38 U.S.C.A. ù 501(a)(2), (4) (West 1991), to prescribe
regulations, “consistent with” the laws administered by VA, regarding “the
form of application by claimants . . . and . . . the manner and form of
adjudications”, the Secretary has prescribed regulations providing for ”
informal claims”. Those regulations provide:
Any communication or action indicating an intent to apply for one or
more benefits under laws administered by [VA] . . . may be considered
an informal claim. Upon receipt of an informal claim, if a formal
claim has not been filed, an application form will be forwarded to
the claimant for execution. If received within 1 year from the date
it was sent to the claimant, it will be considered filed as of the
date of receipt of the informal claim.
38 C.F.R. ù 3.155(a) (1992).
In Quarles v. Derwinski, 3 Vet.App. 129, 137 (1992), and Servello v.
Derwinski, 3 Vet.App. 196, 200 (1992), the Court held that “the one-year
filing period for such applications did not begin to run” (ibid.) where
VA did not forward the claimant a formal application form once his
informal claim had been received and that, therefore, the date on which
the informal claim was received “must be accepted as the date of his
‘claim’ or ‘application’ for purposes of determining an effective date
. . . .” Servello, 3 Vet.App. at 200.
On the facts before us in this appeal, accordingly, any failure on
the part of the veteran to file a formal application as to his
osteoporosis, osteomyelitis, and premature aging claims is deemed waived
by the VA’s failure to comply with the section 3.155(a) requirement to
send him the formal application forms. See Smith v. Derwinski, 2 Vet.App.
429, 431-35 (1992) (VA failure to notify of filing deadline excuses late
filing). This lack of a formal claim thus further flaws the RO’s January
1989 adjudication of those claims.
In view of the foregoing analysis, the January 1989 RO decision was
thus procedurally flawed as to the osteomyelitis, osteoporosis, and
premature aging claims, which remain pending appropriate development and
adjudication at the RO in accordance with applicable law and regulation (
including the issuance of an SOC by the RO and the filing of a 1-9
Appeal by the veteran). See 38 U.S.C.A. ù 7105; 38 C.F.R. ùù 3.103,
3.155, 19.26, 19.29, 19.30 (1992); Bernard, supra. Nevertheless, for the
reasons set forth in part III., above, as to Contreras, the Court holds
that the January 1989 RO decision, although flawed, was the first RO
adjudication of the added claims and that the veteran’s March 1989 ”
Supplemental Memorandum” (R. at 274-80) satisfies the criteria for an NOD
as to that adjudication, since it was filed by the claimant within one
year after the RO determination and was a written communication expressing
dissatisfaction with that adjudication and confirming his desire to
contest the denial. See 38 U.S.C.A. ù 7105(a), (b); 38 C.F.R. ù 20.201.

V. Conclusion
For the foregoing reasons, the appeal in Hamilton is dismissed for
lack of jurisdiction. In Contreras, the appeal is dismissed for lack of
jurisdiction as to the right-knee claims; as to the left-leg and back
claims, the Court holds that it has jurisdiction over the appeal. In
Powell, the appeal is dismissed for lack of jurisdiction as to the lung
cancer and HD claims; as to the osteoporosis, osteomyelitis, and premature
aging claims, the Court holds that it has jurisdiction over the appeal.
Because the Court’s October 7, 1992, order provided for en banc review
only of the jurisdictional question, the responsibility for reviewing the
appeals of the two claims in Contreras and the three claims in Powell, as
to which the Court has jurisdiction, is returned to the screening judge to
proceed in accordance with this Court’s Internal Operating Procedures and
its Rules of Practice and Procedure.
APPEAL DISMISSED as to Hamilton.
APPEAL DISMISSED in part as to Contreras and as to Powell.

KRAMER, Associate Judge, dissenting: The majority opinion is
built upon the premise that the law regarding notices of disagreement (NOD
in singular) is unsettled and a vacuum needs to be filled:
In reaching the decision to abandon our Whitt multiple-NOD
holding, the Court is not suggesting that the Federal Circuit’s
Strott decision or Whitt action compels such a result. The
Circuit has left unresolved how much of Whitt remains viable.
Recognition of this vacuum has impelled the Court to
reexamine the multiple-NOD concept in light of the substantial
part of it that the Federal Circuit has clearly invalidated in
Strott and Whitt, and to conclude that the better result under
those circumstances is to abandon that concept altogether in
favor of achieving the most rational construction of the
statute consistent with the Federal Circuit’s actions
invalidating subsequent putative NOD’s in Strott and Whitt.
Ante at ___, slip. op. at 2-3. While the opinion is brilliantly written
advocacy as to why the law should be changed and what it should be, the
premise upon which it is built is fatally flawed because, except with
respect to a single minor issue, see infra, the law is not unsettled and
no vacuum needs to be filled.
Under that rubric, however, the effect of the opinion is to reverse
obliquely the Federal Circuit’s holding in Strott v. Derwinski, 964 F.2d
1124 (Fed. Cir. 1992). That holding is as follows: First, Strott
emphasized that an NOD can be filed only with respect to “an adjudicative
determination of an agency of original jurisdiction.” Strott, 964 F.2d at
1127 (quoting 38 C.F.R. ù 19.118 (1991)) (similar provision now codified
at 38 C.F.R. ù 20.201 (1992)) (emphasis in Strott). Second, Strott
stated that “‘[t]he agency of original jurisdiction is the VA agency
which adjudicated the claim before an appeal to the Board.'” Id. (
quoting with approval from Prenzler v. Derwinski, 928 F.2d 392, 394 (Fed.
Cir. 1991) (emphasis in Strott)). Third, Strott determined that even
where a previous NOD had been filed (“the NOD of October 18, 1985”),
[i]f . . . a hearing and the subsequent decision of July 17,
1989 qualify as an “adjudicative determination of an agency of
original jurisdiction,” then [another NOD] would be a
jurisdiction-creating NOD. However, we hold that the June 5,
1989 hearing is part of the appellate process and as such,
could not provide grounds for a jurisdiction-creating NOD.
Id. At this juncture, Strott has now determined that any NOD is valid
for jurisdictional purposes as long as it is filed with respect to an
adjudication rendered before the filing of an appeal to the Board of
Veterans’ Appeals (BVA).
Finally, Strott concluded that where a VA Form 1-9 had been filed and
a hearing held pursuant to such filing, a subsequent adjudication was made
in “an appellate role”, rather than by “the ‘agency of original
jurisdiction'”; that “[a]ccordingly, any written
disagreement with that decision is not a valid NOD”; and that, “[t]o the
extent that Whitt v. Derwinski suggests otherwise, 1 Vet.App. [40,] 47 [
1990], it is overruled.” Strott, 964 F.2d at 1128. Thus, where Whitt,
as decided by the U.S. Court of Veterans Appeals, had permitted a valid
NOD to be filed (on or after November 18, 1988) to any adjudication made
at any time during the processing of a claim, Strott limited the rule of
Whitt to apply only to those adjudications made before the claim reached
appellate status. In Whitt v. Derwinski, No. 92-7017 (Fed. Cir. July 31,
1992) (single-judge order), the Federal Circuit simply inferred from its
precedent in Strott that an adjudication rendered subsequent to the filing
of a VA Form 1-9 is an adjudication rendered during appellate status.
Except for the question of whether a VA Form 1-9 can serve as a valid NOD,
see Strott, 964 F.2d at 1127 (“assuming arguendo that a Form 1-9 could
. . . serve [as a valid NOD]”), the law is settled and no vacuum needs to
be filled. That law provides that a valid NOD is filed where the
following conditions are met:
1. The NOD is filed on or after November 18, 1988.

2. The NOD is the first NOD filed to a particular adjudication
. See Whitt, 1 Vet.App. at 45 (“While there can be more than
one effective NOD involving a particular claim, there can only
be one effective NOD with respect to each adjudicative
determination of an agency of original jurisdiction and that
must, of necessity, be the first document filed. . . .”)

3. The adjudication to which the NOD was filed was rendered
before the filing of an appeal to the BVA.
For the foregoing reasons, I respectfully dissent.

FARLEY, Associate Judge, dissenting: When a veteran files a Notice
of Disagreement (NOD) with an adverse decision on a claim for benefits,
the Department of Veterans Affairs (VA) Regional Office (RO), also
referred to as the agency of original jurisdiction (AOJ), is specifically
authorized to “develop and review the claim again.” 38 C.F.R. ù 19.119(a
). As has been demonstrated by numerous records on appeal, the AOJ often
considers additional evidence submitted with an NOD and/or conducts a
hearing and/or “review[s] the claim again” with the end result being
another adjudication at the
AOJ level. The prior denial is usually confirmed but, one must suppose,
the AOJ may on occasion grant the claim.
“Appellate review will be initiated by a notice of disagreement and
completed by a substantive appeal after a statement of the case is
furnished . . . .” 38 U.S.C. ù 7105(a). The corresponding regulation,
38 C.F.R. ù 19.117, provides that an NOD, by itself, is insufficient to
change the status of a claim from the adjudicatory to the appellate level
: “An appeal consists of a timely filed notice of disagreement in writing
and, after a statement of the case has been furnished, a timely filed
substantive appeal.” The latter requirement is fulfilled by the filing of
a VA Form 1-9 which perfects the appeal.
In Whitt v. Derwinski, 1 Vet.App. 40 (1991), the Court specifically
noted that an AOJ often renders multiple adjudications on a claim prior to
the perfection of an appeal to the Board of Veterans Appeals (BVA or
Board). See Whitt, 1 Vet.App. at 42; see also separate opinion of Farley,
J., concurring in part and dissenting in part, 1 Vet.App. at 47-48. In
recognition of these multiple adjudications at the AOJ level, we held in
Whitt that there can, but need not, be multiple NODs. Having so held, we
then considered motions to dismiss in four distinct consolidated appeals
in which multiple NODs had been filed. We denied the motions in two
appeals because the NODs were timely and granted the motions in two where
the NODs were not timely.
Subsequently, in Strott v. Derwinski, 964 F.2d 1124 (1992), the
United States Court of Appeals for the Federal Circuit, in a narrowly-
drawn holding, ruled that when the AOJ conducts a hearing in response to a
request made by checking a block on the “appeal perfecting” VA Form 1-9,
the “field office is acting in an appellate role [and] is no longer the
‘agency of original jurisdiction.’ Accordingly, any written disagreement
with that decision is not a valid NOD . . . ” Strott, 964 F.2d at 1128.
To the extent that it “suggests otherwise,” Whitt was expressly overruled
. Id.
The Federal Circuit did not specifically rule on the issue whether
there could be multiple NODs arising from multiple AOJ adjudications.
However, in dicta, it did opine that “[i]f such a hearing [at the AOJ] and
the subsequent decision of July 17, 1989 qualify
as an ‘adjudicative determination of an agency of original jurisdiction,’
then it would be a jurisdiction-creating NOD.” Id. at 1127.
In a single-judge Order dated July 31, 1992, which states that it “is
not citable as precedent,” the Federal Circuit granted the motion of the
Secretary to vacate this Court’s decision in Whitt. The Order confines
itself “to that portion of the Court of Veterans Appeals decision
addressing Whitt’s appeal” and it is premised upon the belief that ”
Whitt’s appeal raises the same issue that this court addressed in Strott.”
Whitt v. Derwinski, No. 92-7017, order at 2 (Fed. Cir. July 31, 1992).
Although the issues were not exactly the same (Whitt involved a request
for a hearing by the AOJ, not a request for VA Form 1-9 hearing), the
Federal Circuit premised its decision upon that supposition and, even
assuming that the issue was identical in both cases, the threshold
analysis and holding of Whitt remains unchanged by any Federal Circuit
decision. As the majority is compelled to concede, there is nothing that
the Federal Circuit has done, either in Strott or in the single-judge
vacation of the “decision addressing Whitt’s appeal,” which requires this
Court to venture from its holding that there can be multiple NODs from
multiple adjudications by the AOJ.
The departure from the multiple adjudications/multiple NODs rule
today by the majority thus is not compelled by Federal Circuit decisions;
nor is it required by any new law or a change in existing law. Instead,
the rule of Whitt is being abandoned for a single and simple reason: the
majority prefers to do so. While I do not question the power of the
majority to take such a step, I cannot join the majority because I find
its analysis unpersuasive and its conclusion violative of the principles
of stare decisis.

As Justice Brandeis himself observed, . . . in commenting on
the presumption of stability in statutory interpretation: ”
Stare decisis is usually the wise policy because in most
matters, it is more important that the applicable rule of law
be settled than that it be settled right. . . . This is
commonly true, even where the error is a matter of serious
concern, provided correction can be had by legislation.”

Square D. Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 424 (1986
) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) (
Brandeis, J., dissenting).)
While I do not believe that the doctrine of stare decisis would serve
as a bar to this Court changing a rule of law in appropriate circumstances
, I do believe that the principles of the doctrine require that any such
change be effected only when necessary and then only with a full
explanation. One searches the majority opinion in vain for a discussion
of either the necessity of or the reason for abandoning Whitt. These
omissions are particularly glaring in light of the counsel of Justice
Brandeis on the importance of the doctrine of stare decisis. In my view,
it is even more important that the “applicable rule of law be settled” in
the new and emergent body of veterans law.
In place of the multiple adjudications/multiple NODs rule of Whitt,
the majority has substituted a rule of decision which ignores the fact
that the VA adjudicates and readjudicates claims daily at the AOJ level.
Moreover, as evidenced by its enigmatic discussion of the retroactivity of
its new rule in part I. G., the majority may have given rise to more
questions than it resolved. In any event, I am unpersuaded by the
majority’s eloquence, its analysis, or its purporting to have “achiev[ed]
the most rational construction of the statute.” Ante at __, slip op. at
3. I remain of the view that Whitt was and remains better reasoned and
more reflective of the VA’s claims adjudication process. Until today,
our holding in Whitt remained in force, was not reversed, and, in my view,
is as consistent with the governing statutes and regulations as it was
when it was handed down. Because I would not depart from the analysis
and holding of Whitt, I dissent.

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1 Comment »

  1. how long does it take to get an answer once it goes to the amc after the bva grants it to be reopened?

    Comment by patrica — August 20, 2011 @ 8:13 pm


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