Veteranclaims’s Blog

May 5, 2022

How Board determines; (1) “explain how VA determines the timeliness of submitted forms;” (2) “explain the ‘electronic constraints’ [the Board of Veterans’ Appeals (Board)] has in tracking and identifying calculation errors;” and (3) “provide a remedial plan as to how it will determine which claimants have received erroneous notification about letters denying appellate eligibility/jurisdiction under the AMA and Legacy (non-modernized) review system for issues timely appealed via VA Form 10182” and “detail what efforts will be taken to properly notify claimants.”;

Filed under: Uncategorized — veteranclaims @ 4:26 pm

IN THE UNITED STATES COURT OF APPEAL FOR VETERANS CLAIMS
JAMES M. KERNZ, )
Appellant, )
)
v. ) Vet. App. No. 20-2365
)
DENIS MCDONOUGH, )
Secretary of Veterans Affairs, )
Appellee. )
APPELLEE’S RESPONSE TO COURT’S JUNE 11, 2021, ORDER
Pursuant to U.S. Vet. App. R. 27(a), the Secretary hereby responds to the Court’s June 11, 2021, Order that directed him to: (1) “explain how VA determines the timeliness of submitted forms;” (2) “explain the ‘electronic constraints’ [the Board of Veterans’ Appeals (Board)] has in tracking and identifying calculation errors;” and (3) “provide a remedial plan as to how it will determine which claimants have received erroneous notification about letters denying appellate eligibility/jurisdiction under the AMA and Legacy (non-modernized) review system for issues timely appealed via VA Form 10182” and “detail what efforts will be taken to properly notify claimants.” See Court’s June 11, 2021, Order.1
As an initial matter, the Secretary maintains his pending jurisdictional objection that the Court lacks subject matter jurisdiction over the instant action because the notice letter at issue is not a decision of the Board. See 38 U.S.C. § 7252(a); Secretary’s July 1, 2020, Motion to Dismiss; Secretary’s August 31, 2020, Response to Court Order; Secretary’s May 17, 2021, Response to Request
1 Since the Court’s Order, the Office of General Counsel has coordinated with the Board, agency stakeholders, and external stakeholders to prepare this response.
2
for Class Certification and Class Action, at 11-17. The Supreme Court has long held that a court cannot act without jurisdiction such that a threshold jurisdictional question must be resolved first. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998); Mansfield, C. & L. M. R. Co. v. Swan, 111 U.S. 379, 382 (1884) (providing that the requirement that jurisdiction be established as a threshold matter “springs from the nature and limits of the judicial power of the United States” and is “inflexible and without exception.”); Ex parte McCardle, 74 U.S. 506 (1869) (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.”). Thus, the Secretary continues to urge the Court to dismiss this attempted appeal, and reject the dependent RCA, for lack of subject matter jurisdiction.
2
The Board has voluntarily published a notice to provide a remedial process for claimants who may have had their timely Board Appeal request (VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement)) mistakenly rejected due to a calculation error (hereinafter Notice). On August 23, 2021, the Board published the following Notice on the homepage of its website:
2 The Secretary again notes that Appellant, through his attorney, made the strategic litigation decision to pursue a remedy by attempting to appeal the Board’s notice letter rather than seeking relief under 28 U.S.C. § 1651(a). See Response to RCA at 16-17.
3
The Board of Veterans’ Appeals has learned that a limited number of Veterans may have had their Board Appeal forms (VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement)) mistakenly rejected for being untimely. Out of an abundance of caution, the Board is sending out a wide notice to help ensure no other Veterans were impacted by this. If you filed a VA Form 10182 with the Board between February 19, 2019, and March 23, 2021, and believe it may have been improperly rejected as untimely, please send a letter to the “Clerk of the Board” at P.O. Box 27063, Washington, DC 20038 or via fax to 1-844-678-8979 no later than March 1, 2022. In your letter, state you are asking the Board to “RECALCULATE TIMELINESS” and be careful to include the Veteran’s full name, claim number or SSN, the date of the rating decision you appealed to the Board, and the date of your original VA Form 10182 appeal form that the Board told you was untimely.
See BOARD OF VETERANS’ APPEALS, http://www.bva.va.gov (last visited Aug. 25, 2021). The Board informed the undersigned that this Notice was also provided to veterans service organizations (VSOs) co-located at VA facilities, the executive leadership of those VSOs (including Iraq and Afghanistan Veterans of America (IAVA)), and all directors of state departments of veterans affairs via the National Association of State Directors of Veterans Affairs (NASDVA). The Notice was also published on the VA|Insider website. See Notice from the Board of Veterans Appeals: Some Notices of Disagreement mistakenly rejected, VA|INSIDER (Aug. 25, 2021), https://vaww.insider.va.gov/notice-from-the-board-of-veterans-appeals-some-notices-of-disagreement-mistakenly-rejected/. The Board also informed the undersigned that this Notice will be included in a VSO monthly meeting distribution (which includes various VSOs, attorneys, and agents), published on VA social media, and pushed in a Veterans Experience Office (VEO) email.
4
The Notice was distributed because the Board is otherwise unable to determine or estimate the number of notice letters issued that may have mistakenly rejected timely VA Forms 10182 due to calculation errors. See Response to RCA at Exhibit J, ¶ 3-22. The Board explained that it was unable to determine or estimate the number of notice letters issued that may have mistakenly rejected timely VA Forms 10182 due to limitations in its electronic systems. Id.
The Board explained that “a submission to the Board is received via mail or facsimile, the submission is scanned and uploaded to VA’s Centralized Mail Portal as portable document format (PDF) documents, comprising one ‘mail packet.’ Each PDF within the mail packet is assigned a Document Type based on the contents of the document.” Response to RCA at Exhibit J, ¶ 4. Those Document Types are limited to a specific list of options available in the Veterans Benefits Management System (VMBS), including “VA Form 10182 Notice of Disagreement.”3 Id. at ¶¶ 5-6. An administrative professional in the Board’s Case Review and Intake & Mail Management branch is assigned to review and process the submission. Id. at ¶ 8. The assigned administrative professional determines the timeliness of submitted VA Forms 10182 based on prescribed filing deadlines.
3 The Board explained that “Caseflow,” VA’s computerized tracking system for the modernized review system, only contains records for appeals that have been docketed at the Board. Response to RCA at Exhibit J, ¶ 13. Thus, because the notice letters at issue relate to claims that were not docketed at the Board, the Caseflow system would not contain records of any notice letter declining to docket an appeal.
5
For modernized claims, a claimant “must file a properly completed Notice of Disagreement [(VA Form 10182)] with a decision by the [AOJ] within one year from the date the agency mails the notice of the decision.” 38 C.F.R. § 20.202. For claims opting into the modernized system from the legacy system, a claimant must file a properly completed VA Form 10182 within 60 days of the date the AOJ mails the Statement of the Case. See 38 C.F.R. §§ 19.2(d)(2); 19.52(b)(1). If the assigned administrative professional determines that the VA Form 10182 cannot be docketed as a modernized appeal or opt-in, that administrative professional “will prepare and send the appropriate letter to the claimant notifying them why the Board cannot docket a modernized appeal based upon that VA Form 10182 submission.” Id. at ¶ 10. The administrative professional then will upload the notice letter declining to docket the appeal to VBMS and assign one of the four available Document Types to the notice: “BVA Letter;” “AMA Notification Letter;” “Appeal Process Request Letter;” or “Correspondence.” Response to RCA at Exhibit J, ¶ 12. The Board highlighted that, “specific Document Types are not available to differentiate the letters the Board may send in response to a VA Form 10182 submission. Although the user can choose to add information to the ‘Subject’ field for a document in VBMS, such a step is not required or standardized.” Id. Simply stated, that without reading each uploaded document, there is no way to know if a VA Form 10182 was accepted or rejected by Document Type in VBMS.
6
The Board explained that “because the Board’s systems do not track the required information in a way that can be automatically searched and instead would require manual review of hundreds of thousands of documents related to every VA Form 10182 ever received, many of these documents would need to be reviewed more than once in successive steps.” Id. ¶ 18. Because of the limitations assigned “Document Type,” the Board could only narrow its search in VBMS to “VA Form 10182 Notice of Disagreement,” or the even broader Document Types of “BVA Letter;” “AMA Notification Letter;” “Appeal Process Request Letter;” or “Correspondence.” Id. at ¶¶ 14-15; 17. Thus, the Board explained that it would need to manually review the nearly 200,000 VA Forms 10182 received as of March 25, 2021, to determine whether they were timely, untimely, or duplicative, and whether the correct docketing action was taken in each case. See id. at ¶¶ 15-17. The Board explained that such a manual review process “would require the Board to augment and train its current personnel, which it is not resourced to do so” and would require it to “divert personnel away from other organizations in VA or reassign a substantial number of Board employees away from their primary functions,” which “would further delay the intake and processing of thousands of appeals.” Id. at ¶ 19. Thus, because the Board’s electronic system is unable to distinguish the type of notice letter sent in response to a submitted VA Form 10182, the Board is unable to accurately identify potential claimants impacted.
7
Because the Board wants to correct such calculation errors, see Response to RCA at 3-10, and the limitations in the Board’s electronic systems to accurately identify claimants who may have received an erroneous notice letter rejecting a timely VA Form 10182 due to a calculation error, id. at Exhibit J ¶¶ 3-19, the Board has widely distributed for publication the above Notice to identify impacted claimants and correct any identified calculation errors. The Notice applies to claimants that may have received a notice letter improperly rejecting their VA Form 10182 as untimely between February 19, 20194, and March 21, 20215, but who may have yet to have any such error corrected by the Board. See Notice. The Notice allows a potentially impacted claimant to contact the Board to have the timeliness of their VA Form 10182 recalculated and their appeal docketed if timely. See id.
The Secretary emphasizes that VA Forms 10182 are the forms prescribed by the Secretary to appeal an Agency of Original Jurisdiction (AOJ) decision to the Board in the modernized system. VA Forms 10182 are the prescribed forms to seek Board review of: (1) a claim that was adjudicated purely under the modernized system, see 38 C.F.R. § 20.202(a); or (2) a claim that originated in
4 February 19, 2019, is the effective date for the modernized system under the Appeals Modernization Act (AMA). See 84 Fed. Reg. 2449-01 (Feb. 7, 2019); see also 38 C.F.R. § 19.2(b) (defining the effective date of AMA with respect to Board decisions).
5 March 23, 2021, is the date the Board adopted a revised notice letter that included clarifying language that, “[I]f you believe your Board Appeal request (VA Form 10182) was timely, you have 60 days from the date of his letter to respond. If you file a timely response, a Veterans Law Judge will determine whether your appeal was timely.” See Response to RCA at Exhibit J, ¶ 20.
8
the legacy system but was opted-in to the modernized system after the issuance of a legacy Statement of the Case or Supplemental Statement of the Case, see 38 C.F.R. § 19.2(d)(2) (referencing the requirements of 38 C.F.R. § 20.202). VA Forms 10182 are not the forms prescribed by the Secretary to appeal a rating decision or perfect an appeal to the Board under the legacy system. See 38 C.F.R. §§ 19.21; 19.22.
As noted in the Secretary’s Response to the RCA, Appellant’s proposed class definition also identified “letters denying appellate eligibility/jurisdiction under the . . . Legacy (non-modernized) review system for issues timely appealed via VA Form 10182.” Response to RCA at 21 (citing RCA at 2); see also Court’s June 11, 2021, Order at 2. But, as noted above, VA Forms 10182 are not the prescribed forms to appeal a legacy claim. Appellant has only identified and alleged errors in the calculations of timeliness for VA Forms 10182—forms prescribed for modernized appeals. Appellant has not alleged any error in the processing or calculations of potential legacy appeals for him or any other identified claimant.6 See RCA at 1-24. Thus, the Board’s Notice, and Secretary’s response, are focused only on possible calculation errors in the rejection of filed VA Forms 10182 for modernized appeals or opt-in appeals.
6 The Secretary acknowledges that the Board notice letter used for opt-in rejections, like in Appellant’s case, also notes whether the time limit to perfect a legacy appeal to the Board with a VA Form 9 has passed. See Response to RCA at Exhibit J, Attachment E, at 2. But Appellant has not alleged any error in that calculation under the relevant regulation, and he has not presented any evidence that he submitted a VA Form 9 to pursue a legacy appeal. See 38 C.F.R. § 19.52(b).
9
Because the Board has published the Notice to claimants who may have had their timely filed VA Forms 10182 rejected due to a calculation error and provided an avenue for those claimants to have the timeliness of their VA Forms 10182 recalculated, the Secretary submits that the Board’s action renders this matter essentially moot because relief has been voluntarily provided by the Board, including previously docketing Appellant’s appeal. The Secretary also maintains his pending jurisdictional objection that the Court lacks subject matter jurisdiction over this matter and renews his objection that the attempted appeal be dismissed and the dependent RCA rejected.
WHEREFORE, the Secretary respectfully responds to the Court’s June 11, 2021, Order.
Respectfully submitted,
RICHARD A. SAUBER
General Counsel
MARY ANN FLYNN
Chief Counsel
/s/ Megan C. Kral
MEGAN C. KRAL
Deputy Chief Counsel
/s/ Nicholas R. Esterman
NICHOLAS R. ESTERMAN
Senior Appellate Counsel
U.S. Department of Veterans Affairs
Office of General Counsel (027J/K)
810 Vermont Avenue, NW
Washington, DC 20420
(202) 632-8392
Counsel for the Secretary

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.