Veteranclaims’s Blog

December 5, 2021

Secretary concession SMC part of every claim for increase; The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.; the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession, ;

Filed under: Uncategorized — veteranclaims @ 3:25 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2556
JOHN P. HASSAN, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MEREDITH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
MEREDITH, Judge: The pro se appellant, John P. Hassan, appeals a March 30, 2020,
Board of Veterans’ Appeals (Board) decision that dismissed his appeal as to entitlement to special
monthly compensation (SMC) based on loss of use of the left eye. Record (R.) at 2-7. This appeal
is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the following reasons, the Court will vacate the Board’s decision
and remand the matter for further proceedings consistent with this decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1952 to April 1954. R. at

  1. He has been service connected for residuals of chorioretinitis of the left eye from April 1954.
    R. at 103-04. On January 28, 2014, he requested SMC and asserted that he was totally blind in his
    left eye, R. at 1726-27, 1730; at the time, his left eye condition had been evaluated as 10% disabling
    from July 1973, R. at 103. A VA regional office (RO) denied entitlement to SMC, R. at 1514-16,
    1526-30, and he perfected an appeal to the Board, R. at 1379-83, 1473-91, 1512-13.
    2
    In August 2017, the Board denied entitlement to SMC. R. at 1323-25. On appeal, the Court
    granted the parties’ joint motion for remand, R. at 1286-97, and the Board later remanded the matter
    to the RO for additional development, R. at 1273-77. In a January 23, 2020, rating decision, the
    RO granted entitlement to SMC based on loss of use of the left eye and increased the appellant’s
    schedular disability rating for his left eye disability from 10% to 30%, both effective from
    January 28, 2014, the date the appellant requested SMC. R. at 103-09.
    The RO also issued a Supplemental Statement of the Case (SSOC) on January 24, 2020, in
    which it initially identified the issue on appeal as entitlement to a rating in excess of 10% prior to
    July 11, 1973, for residuals of chorioretinitis of the left eye, and indicated that the appeal had been
    remanded by the Board in August 2018. R. at 88; see R. at 86-96. However, in the decision portion
    of the SSOC, the RO addressed both a rating in excess of 10% prior to July 1973 and a rating in
    excess of 30% from January 28, 2014. R. at 94-95. The SSOC also informed the appellant that
    (1) if he continued to disagree with the decision, he may opt in to the modernized appeals process
    and (2) “[a] separate action has been taken to increase the evaluation of this condition[ and that
    he] will receive a separate notification of the award action when it is taken.” R. at 95.
    In February 2020, the appellant submitted a Notice of Disagreement (NOD) seeking direct
    review by a veterans law judge at the Board, and attached a handwritten statement expressing
    entitlement to retroactive benefits for loss of use of his eye. R. at 33-36. The RO issued another
    SSOC the following month, which again referred to the Board’s August 2018 remand. R. at 16;
    see R. at 12-22. However, the RO then noted that the “purpose” of the SSOC was to inform the
    appellant that the January 2020 SSOC had been issued in error and should be disregarded. R. at
  2. The RO further noted that the issue listed above—entitlement to a rating in excess of 10% prior
    to July 11, 1973, for residuals of chorioretinitis of the left eye—”was not on appeal.” R. at 22.
    On March 30, 2020, the Board dismissed the appellant’s appeal as to entitlement to SMC
    based on the loss of use of his left eye. R. at 3-4. In this regard, the Board stated that, in the “January
    2020 rating decision, the [appellant] was granted SMC [as of] the date [his] claim for SMC was
    received by VA. As such, this is considered to be a total grant of benefits sought.” R. at 4.
    Regarding the January 2020 SSOC, the Board noted that it was purportedly issued in connection
    with the SMC issue remanded by the Board, but instead “identified the issue as entitlement to an
    increased rating for the [appellant’s] left eye disorder”; the Board stated that “[n]o such issue is on
    3
    appeal.” R. at 4. Accordingly, the Board found that there is no case or controversy within its
    jurisdiction and dismissed the appeal. R. at 4. This appeal followed.
    II. ANALYSIS
    In his informal brief, which the Court liberally construes, the pro se appellant argues in part
    that the Board, in dismissing his appeal, ignored that he had requested retroactive compensation
    and asserts that he is entitled to SMC prior to January 28, 2014. Informal Brief (Br.) at 1-3; see
    De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). He thus asks the Court to order VA to assign an
    earlier effective date and to provide him with competent representation.1 Informal Br. at 3.
    In response, the Secretary asserts that there is no authority for VA to appoint a
    representative for the appellant, but he otherwise concedes that the Court should vacate the Board’s
    decision and remand the matter for additional proceedings. Secretary’s Br. at 5-12. In that regard,
    the Secretary maintains that the appellant filed an NOD seeking SMC prior to January 28, 2014,
    and thus the Board failed to adequately explain why there is no case or controversy. Secretary’s
    Br. at 7-8. The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary’s Br. at 9.
    “It is well settled that the Court has jurisdiction to determine whether the Board had
    jurisdiction to take the action it takes in a decision.” Young v. Shinseki, 25 Vet.App. 201, 203
    (2012) (en banc order) (per curiam). “This includes the power to review a determination by the
    Board that it lacks jurisdiction over a particular claim.” King v. Nicholson, 19 Vet.App. 406, 409
    (2006). Here, the Board’s determination that no case or controversy exists is tantamount to a
    determination that there is no matter over which it may assert jurisdiction, which the Court reviews
    de novo. Evans v. Shinseki, 25 Vet.App. 7, 10 (2011) (“[T]he Court exercises de novo review over
    1 The Court liberally construed the appellant’s additional argument—that VA has not issued a Statement of
    the Case (SOC) regarding the propriety of the suspension of a vocational rehabilitation program—as a request for
    extraordinary relief in the form of a writ of mandamus compelling VA to issue an SOC, and on March 9, 2021, directed
    the Clerk of the Court to open a petition under a new docket number. See Hassan v. McDonough, U.S. Vet. App. No.
    21-1527. Further, pursuant to the Court’s March 10, 2021, order in docket number 21-1527, the Secretary’s response
    to the petition is due on March 25, 2021.
    4
    Board determinations that are critical to its jurisdiction.”); see Harper v. Wilkie, 30 Vet.App. 356,
    359 (2018).
    As indicated above, the Board determined that the January 2020 grant of SMC as of “the
    date [the appellant’s] claim for SMC was received by VA . . . is considered to be a total grant of
    benefits sought” and thus concluded that there is no case or controversy within the Board’s
    jurisdiction. R. at 4. The Court disagrees. As the Secretary concedes and the record reflects, the
    appellant filed, in February 2020, an NOD seeking direct review of the effective date assigned to
    his award of SMC. R. at 35 (referencing the January 24, 2020, decision and stating that “I believe
    I am entitled to retroactive benefits”); see Palmer v. Nicholson, 21 Vet.App. 434, 436 (2007)
    (noting that, whether a document constitutes an NOD is a legal question subject to de novo review
    by the Court); see also R. at 33-36; Secretary’s Br. at 7. The Board did not acknowledge the
    appellant’s NOD or otherwise explain why there is no controversy regarding the effective date for
    the grant of SMC. See King, 19 Vet.App. at 410 (“[T]he Board—even when it is denying
    jurisdiction—is required to include in its decision a written statement of the reasons or bases for
    its findings and conclusions on all material issues of fact and law presented on the record . . . .”).
    In that regard, the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App. 118, 121 (1991) (concluding that the RO “should have inferred from the veteran’s request for an increase in benefits . . . a request for [SMC] whether or not it was placed in issue by the veteran”), the Board
    should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary’s Br. at 8-10. The Court will accept the Secretary’s concession,
    vacate the Board’s
    decision, and remand the matter for consideration of the appellant’s February 2020 NOD and the
    issues conceded by the Secretary. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (“[W]here the
    Board . . . failed to provide an adequate statement of reasons or bases for its determinations, . . . a
    remand is the appropriate remedy.”).
    The Court, however, will not grant the appellant’s request for an order directing VA to
    award an earlier effective date and to assign counsel. Regarding the first matter, the determination
    as to the proper effective date is a factual finding that the Court may not adjudicate in the first
    instance. See Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (“[A]ppellate tribunals are
    not appropriate fora for initial fact finding.”); see also Deloach v. Shinseki, 704 F.3d 1370, 1380
    5
    (Fed. Cir. 2013) (“[T]he evaluation and weighing of evidence are factual determinations
    committed to the discretion of the factfinder—in this case, the Board.”); 38 U.S.C. § 7261(c). As
    to the latter, the appellant has not identified any authority requiring VA to appoint a representative.
    Rather, Congress provided that “[t]he Secretary may recognize representatives” of veterans service
    organizations (VSOs), 38 U.S.C. § 5902(a)(1) (emphasis added); see Brown v. Brown, 8 Vet.App.
    40, 43 (1995), and “any individual as an agent or an attorney for the preparation, presentation, and
    prosecution of claims under laws administered by the Secretary” and further mandated that the
    Secretary prescribe in regulations the qualifications and standards of conduct for individuals
    recognized by VA, 38 U.S.C. § 5904; see Bates v. Nicholson, 398 F.3d 1355, 1360 (Fed. Cir.
    2005); 38 C.F.R. § 14.629 (2020); see also Shepard v. West, 11 Vet.App. 518, 521 (1998);
    38 C.F.R. § 14.631 (2020) (requiring a claimant seeking representation before the Agency by a
    VSO or attorney to complete a power of attorney signed by the claimant and the representative);
    R. at 1728-29.
    Given this disposition, the Court will not now address the remaining arguments and issues
    raised by the appellant. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) (noting that “the Court
    will not ordinarily consider additional allegations of error that have been rendered moot by the
    Court’s opinion or that would require the Court to issue an advisory opinion”). On remand, the
    Board must proceed expeditiously, in accordance with 38 U.S.C. § 7112.
    III. CONCLUSION
    After consideration of the parties’ pleadings and a review of the record, the Board’s
    March 30, 2020, decision is VACATED, and the matter is REMANDED for further proceedings
    consistent with this decision.
    DATED: March 19, 2021
    Copies to:
    John P. Hassan
    VA General Counsel (027)

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