Veteranclaims’s Blog

November 1, 2021

Single Judge Application; In Hall v. McDonough, this Court recently held that “[t]he particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA can require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings in appropriate circumstances, none of this affects the Board’s jurisdiction to hear appeals of veterans benefits decisions.” _ Vet.App. , , No. 19-8717, 2021 WL 4899375 at *1 (Oct. 18, 2021);

Filed under: Uncategorized — veteranclaims @ 7:48 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2293
WAYNE M. WESTLEY, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Army veteran Wayne M. Westley appeals a Board decision that dismissed
his claim for TDIU (total disability based on individual unemployability) for lack of jurisdiction.
He argues that the Board erred in disclaiming jurisdiction to hear his appeal simply because he
submitted the wrong form. The Court agrees: In Hall v. McDonough, this Court recently held that “[t]he particular form a claimant submits—correct or otherwise—has no bearing on the Board’s jurisdiction to hear an appeal. Although VA can require a claimant to fill out a particular form and
can dismiss nonconforming or untimely filings in appropriate circumstances, none of this affects the Board’s jurisdiction to hear appeals of veterans benefits decisions.” _ Vet.App. , , No. 19-8717, 2021 WL 4899375 at *1 (Oct. 18, 2021). Therefore, the Court reverses the Board’s
finding that it lacked jurisdiction to adjudicate Mr. Westley’s case and remands for further
development.
I. BACKGROUND
Mr. Westley served in Vietnam from 1969 to 1970. In 2018, he sought service connection
for PTSD and entitlement to TDIU. In June 2018, the regional office (RO) granted service
connection for PTSD with a 50% rating but denied entitlement to TDIU. VA sent the veteran a
2
copy of the rating decision, along with a notice of appellate rights and a VA Form 21-0958, Notice
of Disagreement (NOD).
Meanwhile, on February 19, 2019, Congress enacted the Veterans Appeals Improvement
and Modernization Act of 2017 (VAIMA), amending the procedures applicable to administrative
review and creating a new administrative appeal system. Pub. L. No. 115-55, § 2(x), 131 Stat.
1105, 1115 (Aug. 23, 2017). The VAIMA procedures apply only to claims that the RO addressed
in a rating decision issued on or after February 19, 2019, while claims adjudicated before that date
are deemed “legacy” claims. VA requires that veterans use VA Form 10182 to appeal under
VAIMA and VA Form 21-0958 to appeal under the legacy system. See 38 C.F.R. § 20.202 (a), (d)
(2021).
In April 2019, three months before the one-year period expired to appeal the 2018 rating
decision, Mr. Westley submitted the VAIMA form (VA Form 10182) despite the fact that his claim
remained under the domain of the legacy system. The RO never issued a Statement of the Case
(SOC). Thirteen days after the appeal period expired, the Board informed Mr. Westley that it had
received his VAIMA form and placed his appeal on its docket.
In February 2020, the Board dismissed the appeal because the veteran failed to file the
appropriate legacy form. R. at 6 (explaining that the VAIMA form he filed “cannot be used to
appeal the July 2018 RO legacy rating decision denying TDIU”). The Board concluded that it
“does not have jurisdiction over this issue and it is dismissed.” Id. This appeal followed.
II. ANALYSIS
Mr. Westley asks the Court to reverse the Board’s finding that it lacked jurisdiction over
his appeal. He concedes that he filed the wrong form but argues that the requirement to use the
legacy form is not a jurisdictional hook and that the Board waived that requirement when it
accepted and processed his appeal. He also asks the Court to ensure that an SOC is issued regarding
his TDIU claim.
The Court agrees with Mr. Westley that the Board erred in concluding that it did not have
jurisdiction to hear his appeal simply because he filed the wrong form. In Hall, this Court recently
held that VA regulations requiring the use of a specific appeal form, namely 38 C.F.R. §§ 20.202
and 20.203, do not limit the Board’s jurisdiction or adjudicatory domain.
Vet.App. at , 2021 WL 4899375 at *1. Rather, those regulations are akin to claims-processing rules that govern 3 the orderly processing of cases but otherwise do not affect jurisdiction. Id. The Supreme Court, in Union Pacific R. Co. v. Brotherhood of Locomotive Eng’rs, 558 U.S. 67, 81-82 (2009), emphasized the difference between rules affecting jurisdiction and mandatory “claims-processing” provisions: Recognizing that the word “jurisdiction” has been used by courts, including this Court, to convey “many, too many, meanings,” Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 90 (1998), we have cautioned, in recent decisions, against profligate use of the term. Not all mandatory “prescriptions, however emphatic, are properly typed jurisdictional,” we explained in Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2006). Subject-matter jurisdiction properly comprehended, we emphasized, refers to a tribunal’s “power to hear a case,” a matter that “can never be forfeited or waived.” Id., at 514. In contrast, a “claimprocessing rule, . . . even if unalterable on a party’s application,” does not reduce the adjudicatory domain of a tribunal and is ordinarily “forfeited if the party asserting the rule waits too long to raise the point.” Kontrick v. Ryan, 540 U.S. 443, 456 (2004) (cleaned up). VA regulations requiring a specific appeal form do not affect the Board’s jurisdiction because only Congress may create or withdraw jurisdiction. Bowles v. Russell, 551 U.S. 205, 212 (2007). And in Hall, the Court determined that 38 U.S.C. § 511(a) (which establishes the Secretary’s jurisdiction) and 38 U.S.C. § 7105(a) (which governs the Board’s jurisdiction) “offer no indication that Congress sought to eliminate VA’s authority to adjudicate veterans benefits disputes—i.e., its subject matter jurisdiction—whenever a claimant’s pleading fails to conform to form or timing requirements.” Vet.App. at , 2021 WL 4899375 at *3. The Court also determined that 38 U.S.C. § 7105(a), which governs the process by which veterans initiate an appeal with the Board, conveys no congressional intent to limit the Board’s jurisdiction whenever a claimant uses the wrong form to file an NOD. Id. The Court therefore concluded that VA regulations requiring the use of a specific appeal form should be treated as claims-processing rules that are mandatory for veterans seeking to appeal but which may be forfeited or waived by the Board. Id. at 5. Accordingly, the Board erred in dismissing Mr. Westley’s appeal for lack of jurisdiction because he filed the wrong form. R. at 6 (“[T]he Board does not have jurisdiction over this issue and it is dismissed.”). The Court remands so that the Board may either hear Mr. Westley’s appeal or provide a rationale for declining to do so. If it dismisses his claim, “the Board should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture is a relevant 4 consideration, and any other relevant factors.” Hall, Vet.App. at __, 2021 WL 4899375 at
*4.
Mr. Westley also contends that, at the time of the Board’s decision, he was an individual
with certain handicaps that, among other things, affected his ability to communicate in writing and
understand or follow instructions. He maintains that these handicaps contributed to his filing the
wrong form and that by refusing to hear his claim on that basis, the Board impermissibly prevented
him from participating in the appeal process due to his disability. See 38 C.F.R. § 15.130(b)(3)(ii)
(2021) (“The agency may not, directly or . . . through other arrangements, utilize criteria or
methods of administration the purpose or effect of which would . . . defeat or substantially impair
accomplishment of the objectives of a program or activity with respect to individuals with
handicaps.”). However, because the Court has already determined that remand is appropriate and
that the Board has jurisdiction to hear the veteran’s case, the Court need not address the merits of
this argument. On remand, the veteran remains free to raise this issue as well as explain why the
Board should waive any applicable claims-processing rules.
One final note: the RO never issued an SOC after Mr. Westley filed his NOD. Thus, if the
Board accepts his legacy appeal, it has an obligation to ensure that the RO complies with its duty
to issue an SOC regarding entitlement to TDIU. See 38 C.F.R. §§ 19.26 (2021), 19.29 (2021),
19.30 (2021) (stating that, once a claimant files an NOD, the RO must reexamine the claim and
issue an SOC).
III. CONCLUSION
For the foregoing reasons, the Court REVERSES the Board’s finding that it lacks
jurisdiction over Mr. Westley’s appeal, VACATES the February 6, 2020, Board decision, and
REMANDS the matter for further adjudication consistent with this opinion.
DATED: October 29, 2021
Copies to:
Zachary M. Stolz, Esq.
VA General Counsel (027)

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