Veteranclaims’s Blog

January 5, 2022

Single Judge Application; § 3.2500(b); Military-Veterans Advocacy v. Sec’y of Veterans Affs.; the implementing regulation states that “a claimant who has filed for review under one of the [three review options] may not, while that review is pending final adjudication, file for review under a different available option.” 38 C.F.R. § 3.2500(b).; We note that the Federal Circuit has invalidated the second sentence of § 3.2500(b), which states, “While the adjudication of a specific benefit is pending on appeal before a federal court, a claimant may not file for administrative review of the claim under any of options listed in paragraph (a) of this section,” but it does not appear to have invalidated the first—and, here, operative—sentence of the subsection. See Military-Veterans Advocacy v. Sec’y of Veterans Affs., 7 F.4th 1110, 1143-44 (Fed. Cir. 2021).;

Filed under: Uncategorized — Tags: — veteranclaims @ 3:51 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-5654
DONALD W. LAPLANTE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Army veteran Donald W. LaPlante, through counsel, appeals an April
18, 2020, Board of Veterans’ Appeals decision finding no new and relevant evidence warranting
readjudication of claims for service connection for diabetes mellitus, a heart disorder, prostate
cancer residuals, erectile dysfunction secondary to prostate cancer, and depression secondary to
prostate cancer. The appeal is timely, the Court has jurisdiction, and single-judge disposition is
appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel v. Derwinski, 1 Vet.App. 23, 25-26
(1990).
Mr. LaPlante argues that the Board had no jurisdiction over the diabetes, prostate cancer
residuals, and erectile dysfunction claims because, before he appealed to the Board, he had filed a
supplemental claim for those conditions with the regional office (RO). He also argues that the
Board should not have adjudicated the heart disorder and depression claims because they were
inextricably intertwined with the claims over which it lacked jurisdiction. The Secretary concedes
that the Board erred by exercising jurisdiction over the diabetes, prostate cancer residuals, and
erectile dysfunction claims, but he argues that we should affirm the heart disorder claim and
remand the depression claim to the Board.
2
Because we find that the Board erroneously exercised jurisdiction over the diabetes,
prostate cancer residuals, and erectile dysfunction claims, we will vacate those parts of its decision
and dismiss the appeal of those claims. And because the Board did not consider whether the heart
disorder and depression claims were inextricably intertwined with the three claims over which it
lacked jurisdiction, we will set aside its decision about those two claims and remand for
readjudication.
I. FACTS
Mr. LaPlante served on active duty between January 1971 and November 1972, including
service in Korea. Record (R.) at 5818.
In April 2017, the Board issued a decision denying service connection for diabetes, a heart
disability, prostate cancer residuals, erectile dysfunction, and depression, all claimed as caused
directly or indirectly by herbicide exposure while Mr. LaPlante was serving in Korea. R. at 2128-
31, 2133-35. Mr. LaPlante did not appeal, and the Board decision became final.
In February 2018, Mr. LaPlante submitted a request to reopen his claims. R. at 2112-15. In
April 2018, the RO continued the denial of the five claims because it found that he had submitted
no new and material evidence. R. at 1507-08.
In August 2018, Mr. LaPlante filed a Notice of Disagreement (NOD), disputing the RO’s
decision. R. at 1484-85. In December 2018, he opted into the Rapid Appeals Modernization
Program (RAMP) and selected the higher-level review option. R. at 1430.
In February 2019, the RO again continued the denial of Mr. LaPlante’s claims because it
found that he had submitted no new and relevant evidence. R. at 1399-400.
On September 5, 2019, Mr. LaPlante filed a Decision Review Request: Supplemental
Claim (VA Form 0995) concerning the diabetes, prostate cancer residuals, and erectile dysfunction
claims. R. at 1383-89.
On September 27, 2019, VA received a Decision Review Request: Board Appeal (VA
Form 10182) from Mr. LaPlante. R. at 391-92 (showing that the Board appeal was signed on
August 9, 2019, but not received by VA until September 27, 2019). Mr. LaPlante asked for
readjudication of his diabetes, prostate cancer residuals, erectile dysfunction, heart disorder, and
depression claims because he had submitted new evidence showing that he may have had in3
service exposure to herbicides. R. at 391. In October 2019, the Board notified Mr. LaPlante that
his appeal had been received and docketed. R. at 389-90.
In December 2019, a VA employee encountered an error while processing the form 0995,
the supplemental claim for diabetes, prostate cancer residuals, and erectile dysfunction, and was
informed that the Board had taken jurisdiction over those claims based on the form 10182 Mr.
LaPlante had submitted. R. at 342.
In April 2020, the Board issued the decision on appeal. It noted that Mr. LaPlante had filed
a prior supplemental claim for review of his diabetes, prostate cancer residuals, and erectile
dysfunction claims, but it found that his later election of Board review “over[rode] his
supplemental claim” and that the Board thus had jurisdiction. R. at 7. The Board then found that
Mr. LaPlante had submitted no new and relevant evidence and that none of his claims warranted
readjudication. R. at 8-12.
II. ANALYSIS
Mr. LaPlante argues that the Board erred by exercising jurisdiction over the diabetes,
prostate cancer residuals, and erectile dysfunction claims because, under 38 U.S.C. § 5104C and
38 C.F.R. § 3.2500(b), his active supplemental claim precluded Board jurisdiction. Appellant’s
Brief (App. Br.) at 13-16. He also argues that his heart disorder and depression claims are
inextricably intertwined with his other claims over which the Board lacked jurisdiction and that
the Board should have thus remanded them. App. Br. at 16-21. And he asserts that he did not file
five claims but only one, “seeking compensation benefits for specific conditions related to . . .
herbicide exposure,” and that his individual conditions are merely “issues within a claim.” App.
Br. at 6-13.
The Secretary concedes that the Board incorrectly exercised jurisdiction over the diabetes,
prostate cancer residuals, and erectile dysfunction claims. Secretary’s (Sec.) Br. at 6-9. But he
argues that the Board had jurisdiction over the other two claims and that the Court should affirm
the heart disorder claim and remand the depression claim for an adequate statement of reasons or
bases. Sec. Br. at 9-15.
A. There Are Five Claims, Not One
We first address Mr. LaPlante’s argument that he submitted only one claim, “seeking
compensation benefits for specific conditions related to . . . herbicide exposure.” App. Br. at 7. He
4
points to section 5104C(a)(2), which provides that once a claimant files either a request for higherlevel
review, a supplemental claim, or an NOD, the claimant may not take another action “with
respect to the same claim or same issue contained within the claim” until the first action is
adjudicated or withdrawn. App. Br. at 7; 38 U.S.C. § 5104C(a)(2)). He reasons that, because
“claim” and “issue contained within the claim” are mentioned separately within the same provision,
those terms must have different meanings. App. Br. at 9. And he broadly invokes the pro-veteran
canon to assert that the Court should find that he has filed only one “claim” and that his five
disabilities and the question of in-service herbicide exposure are all “issues contained within the
claim.” App. Br. at 7-12. He then urges the Court to find that the issue of herbicide exposure was
before the RO as part of his supplemental claim and that the Board thus could not address herbicide
exposure as part of the heart disorder or depression “issues.” App. Br. at 12.
Yet Mr. LaPlante is incorrect that his five claimed disabilities are merely “issues contained
within [one] claim.” The Federal Circuit has held that “claims based on separate and distinctly
diagnosed diseases or injuries must be considered separate and distinct claims.” Boggs v. Peake,
520 F.3d 1330, 1336 (Fed. Cir. 2008) (citing Ephraim v. Brown, 82 F.3d 339, 401 (Fed. Cir. 1996)).
Although the Court sometimes construes distinctly diagnosable conditions as contained within a
single claim, see Clemons v. Shinseki, 23 Vet.App. 1, 4-9 (2009) (per curiam order), this practice
is limited to cases in which the separate conditions have similar symptoms and the veteran lacks
the expertise necessary to differentiate the possible diagnoses,1 see Murphy v. Wilkie, 983 F.3d
1313, 1318 (Fed. Cir. 2020).
Here, the five claimed disabilities—diabetes, a heart disorder, prostate cancer residuals,
erectile dysfunction, and depression—are all separate and distinct conditions. Thus, they must be
considered separate and distinct claims, and we reject Mr. LaPlante’s contention that he filed only
one claim. See Boggs, 520 F.3d at 1336. This is true despite Mr. LaPlante’s assertion that herbicide
exposure directly or indirectly caused all of his conditions. Although Mr. LaPlante later insisted
that he did not argue for a claim of “herbicide exposure,” App. Reply Br. at 2-3, that is, in practice,
what he did by asserting that he has only one claim and that his five disabilities and the question
of in-service herbicide exposure are all issues contained within that claim.
1 In Clemons, for instance, the veteran at first sought service connection for post-traumatic stress disorder
(PTSD) only, but the Court found that his PTSD claim could also encompass other psychological conditions with
similar symptoms because the veteran lacked the expertise to diagnose the precise condition afflicting him.
23 Vet.App. at 5-6.
5
B. Diabetes, Prostate Cancer Residuals, and Erectile Dysfunction Claims
We next turn to the appellant’s jurisdictional argument. The Court agrees with the parties
that the Board erred by exercising jurisdiction over the diabetes, prostate cancer residuals, and
erectile dysfunction claims because Mr. LaPlante’s supplemental claim precluded Board
jurisdiction.
As stated, under section 5104C(a)(1), after the RO has issued a decision, the veteran may
seek review in one of three ways: request higher-level review, file a supplemental claim, or appeal
to the Board. But, again, the next subsection qualifies that:
Once a claimant takes an action set forth in paragraph (1), the claimant may not
take another action set forth in that paragraph with respect to the same claim or
same issue contained within the claim until—
(i) the higher-level review, supplemental claim, or notice of disagreement is
adjudicated; or
(ii) the request for higher-level review, supplemental claim, or notice of
disagreement is withdrawn.
38 U.S.C. § 5104C(a)(2).
Similarly, the implementing regulation states that “a claimant who has filed for review
under one of the [three review options] may not, while that review is pending final adjudication,
file for review under a different available option.” 38 C.F.R. § 3.2500(b).2
Mr. LaPlante filed his supplemental claim for diabetes, prostate cancer residuals, and
erectile dysfunction before he appealed to the Board, R. at 391-92, 1383-89, and the supplemental
claim was neither adjudicated nor withdrawn when the Board docketed the appeal, see R. at 342.
Thus, the Board had no jurisdiction over these claims. Because the Board lacked jurisdiction over
the diabetes, prostate cancer residuals, and erectile dysfunction claims, we will vacate those parts
of the Board decision. And because the Court also lacks jurisdiction over those claims, we will
dismiss the appeal of those claims.
2 We note that the Federal Circuit has invalidated the second sentence of § 3.2500(b), which states, “While
the adjudication of a specific benefit is pending on appeal before a federal court, a claimant may not file for
administrative review of the claim under any of options listed in paragraph (a) of this section,” but it does not appear
to have invalidated the first—and, here, operative—sentence of the subsection. See Military-Veterans Advocacy v.
Sec’y of Veterans Affs., 7 F.4th 1110, 1143-44 (Fed. Cir. 2021).
6
C. Heart Disorder and Depression Claims
Finally, we turn to the appellant’s argument that his heart disorder and depression claims
are inextricably intertwined with the other three claims so that the Board should have remanded
them for RO reconsideration along with the other claims. App. Br. at 16-17. And he also argues
that the Court should invalidate 38 C.F.R. § 20.802(a), the regulation that governs remands by the
Board, because it provides for remand if the agency of original jurisdiction (AOJ) has violated its
duty to assist or otherwise materially erred in satisfying a statutory or regulatory duty, but does not
provide for remand when claims are inextricably intertwined but the AOJ has committed no error.
App. Br. at 17-21.
The Secretary responds that the Board had jurisdiction over the heart disorder claim, given
that Mr. LaPlante did not file a supplemental claim for that claim, and that the Court should affirm
the Board’s disposition of that claim because Mr. LaPlante has not shown error. Sec. Br. at 11-15.
But the Secretary asserts that, because of the Board’s jurisdictional error, it failed to reach whether
it could adjudicate the depression claim, which is secondary to the prostate cancer residuals claim,
and that the Court should remand the depression claim for the Board to remedy its incomplete
analysis. Sec. Br. at 9-10. The Secretary also asserts that it would be premature for the Court to
address the validity of § 20.802(a) until the Board decides whether remand of the depression claim
is warranted. Sec. Br. at 10.
Whether claims are inextricably intertwined is a question of fact. Whimple v. Shinseki, 519
F. App’x 686, 688 (Fed. Cir. 2013). And where additional findings of fact are necessary regarding
matters open to debate, the proper action for the Court is to remand to the Board for consideration
of those facts in the first instance. Tadlock v. McDonough, 5 F.4th 1327, 1337-38 (Fed. Cir. 2021).
Because the Board improperly exercised jurisdiction over the diabetes, prostate cancer
residuals, and erectile dysfunction claims and we only now vacate its decision on that point, the
Board did not address whether the heart disorder and depression claims were inextricably
intertwined with the others. And it is improper for us to consider this question until the Board has
done so in the first instance. See id. Thus, the proper course is for us to remand the heart disorder
and depression claims for the Board to decide whether they are inextricably intertwined with the
other three claims. See id.
Mr. LaPlante asks us to address the validity of § 20.802(a) because it provides for Board
remand only if VA has violated its duty to assist or otherwise materially erred in satisfying a
7
statutory or regulatory duty, and does not provide for remand due to the consequences of
jurisdictional error by the Board. App. Br. at 17-21 (citing 38 C.F.R. § 20.802 (2021)); App. Reply
Br. at 14. But that issue is not ripe because the Board may yet find that remand of the heart disorder
and depression claims is unnecessary. See Caraco Pharm. Labs., Ltd. v. Forest Labs., Inc., 527
F.3d 1278, 1291 (Fed. Cir. 2008) (explaining that ripeness is an element of the case-or-controversy
jurisdictional requirements); Mokal v. Derwinski, 1 Vet.App. 12, 13-15 (1990) (finding that this
Court adheres to the case-or-controversy requirements imposed by Article III). Seen from a
different perspective, if the Board finds that the heart disorder and depression claims are not
inextricably intertwined with the others, there would be no reason for remand and the question
would be moot. See Monk v. Shulkin, 855 F.3d 1312, 1317 (Fed. Cir. 2017) (“A case is moot when
it no longer presents live issues.”). At any rate, the validity of § 20.802 is not a live issue here, so
we will not address it.
Because Mr. LaPlante opted into RAMP, R. at 1430, the Veterans Appeals Improvement
and Modernization Act (AMA) and related precedent apply to this case, including that “the
evidentiary record before the Board shall be limited to the evidence of record at the time of the
decision of the [AOJ] on appeal.” 38 U.S.C. § 7113(a); see Andrews v. McDonough, 34 Vet.App.
151, 159 (2021) (holding that the AMA establishes that “the record at the Board for claimants in
the direct review docket would be fixed at the time of the AOJ decision” and that this applies to
remands from this Court to the Board). But the Court still expects “that the Board will ‘reexamine
the evidence of record, seek any other evidence [if the AOJ failed to satisfy its duty to assist . . .],
and issue a timely, well-supported decision.'” Andrews, 34 Vet.App. at 161 (quoting Fletcher v.
Derwinski, 1 Vet.App. 394, 397 (1991) (first alteration in original)). And a remand must be
performed in an expeditious manner. 38 U.S.C. § 7112.
III. CONCLUSION
Based on the above considerations, the parts of the April 18, 2020, Board decision that
denied readjudication of claims for service connection for diabetes mellitus, prostate cancer
residuals, and erectile dysfunction are VACATED and the appeal of those matters is DISMISSED
for lack of jurisdiction. The parts of the Board decision that denied readjudication of claims for
service connection for a heart disorder and depression are SET ASIDE and those matters are
REMANDED for further proceedings consistent with this decision.
8
DATED: December 10, 2021
Copies to:
Kenneth H. Dojaquez, Esq.
VA General Counsel (027)

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