Veteranclaims’s Blog

July 18, 2021

Single Judge Application; 38 C.F.R. § 20.104(c) (2020); “questions pertaining to its jurisdictional authority to review a particular case.”; But that power carries with it procedural protections for claimants. See Sheppard v. McDonough, _ Vet.App. _, , 2021 WL 958556, at *4 (Mar. 15, 2021); The regulation requires the Board to give 60 days’ notice to the veteran (and the Secretary) before it chooses to dismiss the appeal based on jurisdiction;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-1817
LONNIE M. JOHNS, JR., APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before JAQUITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

JAQUITH, Judge: Self-represented Air Force veteran Lonnie M. Johns appeals a January 2, 2020, Board of Veterans’ Appeals (Board) decision that dismissed appeals related to prostate cancer and visual impairment for lack of jurisdiction. Record (R.) at 5-7. Because, as the Secretary concedes, the Board failed to notify the veteran of a potential jurisdictional defect in his appeal before dismissing it, the Board’s decision is vacated and the matter remanded for the Board to comply with 38 C.F.R. § 20.104 (2020).
On September 23, 2016, the veteran filed a claim for prostate cancer related to Agent Orange exposure. R. at 2430.1 VA issued a decision on March 1, 2018, denying that claim because it found the evidence insufficient to establish exposure to an herbicide in service. R. at 349-51. VA informed the veteran that if he wanted to appeal that decision, he needed to complete and return a Notice of Disagreement (NOD), VA Form 21-0958, included with the decision. R. at 327, 337-38. The veteran appealed the RO’s decision on February 26, 2019, but he submitted a different NOD form—VA Form 10182—rather than the one VA provided. R. at 116. On that incorrect form, he
1 He also sought compensation for three other conditions he asserted were related to Agent Orange exposure: melanoma, basal cell carcinoma, and a thyroid condition—as well as hearing loss. R. at 2430. None of these conditions are addressed in the Board decision presently before the Court.
2
requested a Board hearing to address his entitlement to service connection for his prostate cancer. R. at 116.
In May 2019, VA docketed his appeal and later held a hearing in July 2019, wherein the veteran testified regarding service connection for prostate cancer and visual impairment. R. at 77-103. During the hearing, the veterans law judge mentioned that he would have to look into which issues the Board had jurisdiction over. R. at 78. That was the extent of discussion as to the jurisdiction issue until the instant decision.
In the January 2020 decision now before the Court, the Board determined that it did not have jurisdiction over the veteran’s appeals of his prostate cancer and visual impairment claims and dismissed them.2 R. at 5-7. The Board explained that it did not have jurisdiction over the appeal because the veteran used the wrong form—VA Form 10182—which is for used for cases under the Appeals Modernization Act (AMA). R. at 6. The Board noted that the VA decision the veteran appealed was issued before the AMA took effect on February 19, 2019, so the veteran should have submitted the NOD form appropriate for legacy appeals,3 VA Form 21-0958, which VA had provided him. R. at 6. Based on its finding that the veteran submitted the wrong form, the Board determined that it had no jurisdiction over his appeal. R. at 5-7.
The Board has jurisdiction to hear all questions in matters subject to decision by the Secretary under laws that affect the provision of benefits. See 38 U.S.C. § 7104(a); Rosinski v. Wilkie, 31 Vet.App. 1, 5 (2019). By statute, the Board’s “[a]ppellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.” 38 U.S.C. § 7105(a) (emphasis added). See also 38 C.F.R. § 20.202(a) (2020) (“A Notice of Disagreement must be
2 As for the Board’s jurisdiction determination regarding the visual impairment claim, R. at 6, the Court is unable to find support in the record for the Board’s assertion that the veteran appealed this claim via a VA Form 10182. The specific issues that show on the VA Form 10182 in the record, dated February 26, 2019, concern the veteran’s herbicide exposure and prostate cancer claim. R. at 116. The veteran submitted a VA Form 21-0958 dated December 24, 2018, addressing his vision disability. R. at 142-43. On October 25, 2018, the regional office granted service connection for a left orbital fracture, with a 0% disability evaluation, R. at 153-54, and denied service connection for visual impairment. R. at 189. However, VA deemed the veteran’s December 2018 NOD invalid because the orbital fracture was on a September 2016 appeal for which the time to respond had expired. R. at 119. And VA reported receiving an NOD regarding its denial of service connection for visual impairment on December 13, 2018 (11 days before the Form 21-0958) and deemed it invalid because “this issue was already on appeal.” R. at 122. On remand, the Board may address any jurisdictional issue it raised when it dismissed the veteran’s visual acuity claim in its January 2020 decision, and is instructed to comply with 38 C.F.R. § 20.104 for that claim as well, if applicable, and otherwise address this muddled record regarding the veteran’s vision disability.
3 A legacy appeal is an appeal of a legacy claim—one for which VA provided notice of decision prior to February 19, 2019—where a claimant has not elected to participate in the modernized review system provided under the AMA. 38 C.F.R. §§ 19.2(c) (2020), 3.2400(c) (2020).
3
properly completed on a form prescribed by the Secretary.”). The Board is also empowered to decide “questions pertaining to its jurisdictional authority to review a particular case.” 38 C.F.R. § 20.104(c) (2020). Such questions include whether NODs and Substantive Appeals are adequate. See Sheppard v. McDonough, _ Vet.App. _, , 2021 WL 958556, at *4 (Mar. 15, 2021). “The Board may dismiss any case over which it determines it does not have jurisdiction.” 38 C.F.R. § 20.104(c) (emphasis added).4 But that power carries with it procedural protections for claimants. See Sheppard, 2021 WL 958556, at *4. The regulation requires the Board to give 60 days’ notice to the veteran (and the Secretary) before it chooses to dismiss the appeal based on jurisdiction. 38 C.F.R. § 20.104(c). This 60-day notice period allows the parties an opportunity to present written argument and evidence relevant to the Board’s jurisdictional concerns and to request a hearing in an effort to cure any jurisdictional defect(s). In this case, as the Secretary concedes, the Board erred in dismissing the case without first notifying the veteran of the potential jurisdictional defect—that it deemed his NOD deficient—and affording him an opportunity to be heard on that issue.
“The Court has the power to review the Board’s refusal to exercise its jurisdiction,” including “to determine whether the Board acted properly in dismissing the appellant’s claims.” Evans v. Shinseki, 25 Vet.App. 7, 10 (2011). As the Secretary notes, remand is the appropriate remedy when the Board fails to comply with its duty to notify the veteran of potential jurisdictional defects. See Evans, 25 Vet.App. at 17 (vacating the Board’s dismissal where it failed to comply with 38 C.F.R. § 20.101, which has since been recodified as § 20.104). Therefore, the matter is remanded for the Board to comply with § 20.104.
The veteran also asks us to decide the substance of his service connection claims and his request for reimbursement of his prostatectomy costs, Appellant’s Informal Br. at 2, 21, but we cannot do so. An appellate court is not the appropriate forum for initial fact finding. Hensley v.
4 The language regarding the NOD form is mandatory, but the dismissal power is permissive. Compare 38 C.F.R. §§ 20.202(a), (d) (requiring that an NOD be on the prescribed form or the Board will not accept it), with 20.104(c) (permitting the Board to dismiss any case over which it determines it does not have jurisdiction). The Court has held that discretionary analysis is appropriate for determining the adequacy of veterans’ pleadings initiating appellate review. See Percy v. Shinseki, 23 Vet.App. 37, 47–48 (2009). That accords with the nonadversarial nature of the VA claims process. Id; see Evans v. Shinseki, 25 Vet.App. 7, 16 (2011) (“The entire veterans claims adjudication process reflects the clear congressional intent to create an Agency environment in which VA is actually engaged in a continuing dialog with claimants in a paternalistic, collaborative effort to provide every benefit to which the claimant is entitled.”); EF v. Derwinski, 1 Vet.App. 324, 326 (1991) (stating that “there is nothing magical” about the statements on the appeal form).
4
West, 212 F.3d 1255, 1263 (Fed. Cir. 2000). Our statutory scope of review “prohibits the court from making factual findings in the first instance.” DeLoach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013); see 38 U.S.C. § 7261; “[I]t is the Board that makes factual findings and weighs pertinent evidence,” Foreman v. Shulkin, 29 Vet.App. 146, 153 (2018); the Court then reviews the Board’s weighing of the evidence for clear error. DeLoach, 704 F.3d at 1380. In undertaking that review, we interpret and apply the law, but we cannot provide equitable relief. See Fritz v. Nicholson, 20 Vet.App. 507, 511 (2006). “Only the Secretary is permitted by statute to take equitable considerations into account in reviewing claims for administrative error.” Schleis v. Principi, 3 Vet.App. 415, 418 (1992); see 38 U.S.C. § 503(a); Smith v. Gober, 14 Vet.App. 227, 231 (2000) (“The Secretary’s authority to grant equitable relief under section 503 is wholly within the Secretary’s discretion, and the Court lacks jurisdiction even to review the exercise of the Secretary’s equity discretion.”) (citing Zimick v. West, 11 Vet.App. 45, 50-51 (1998)). The Court also expresses no view regarding the proper result, for advising what the law would be on undetermined facts would be rendering an advisory opinion, a practice eschewed by this Court since its inception. See Aldridge v. McDonald, 27 Vet.App. 392, 394 (2015).
Accordingly, the Board’s January 2, 2020, decision is VACATED and the matters REMANDED for further consideration consistent with this opinion. The Board must proceed with this remand expeditiously, in accordance with 38 U.S.C. § 7112 (requiring the Secretary to provide for “expeditious treatment” of claims remanded by the Court).
DATED: April 13, 2021
Copies to:
Lonnie M. Johns, Jr.
VA General Counsel (027)

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