Veteranclaims’s Blog

October 15, 2021

Single Judge Application; Bailey v. Wilkie, 33 Vet.App. 188, 204 (2021) (noting that an RO decision granting benefits could not divest the Board of jurisdiction over the initial appeal and that, on remand, the appellant was entitled to have his appeal processed to completion thus preserving the possibility of an earlier effective date);

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2021
ALBERT F. CASTRO, JR., 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 appellant, Albert F. Castro, Jr., through counsel appeals two
Board of Veterans’ Appeals (Board) decisions. The first decision, dated January 28, 2020, denied
his motion to revise, on the basis of clear and unmistakable error (CUE), an October 2015 Board
decision that denied entitlement to disability compensation for post-traumatic stress disorder
(PTSD). Record (R.) at 28-46. The second decision, dated July 2, 2020, denied entitlement to an
effective date earlier than February 2, 2016, for the award of disability compensation for PTSD
and a total disability rating based on individual unemployability (TDIU). R. at 4-12. In September
2020, the Clerk of the Court (Clerk) granted the appellant’s unopposed motion to consolidate his
appeals under this docket number and docket number 20-5042 and terminated proceedings under
docket number 20-5042.
On July 9, 2021, the Court issued a single-judge memorandum decision that dismissed the
appeal of the Board’s January 28, 2020, decision and affirmed the Board’s July 2, 2020, decision
denying an earlier effective date for the award of disability compensation for PTSD and TDIU.
Castro v. McDonough, No. 20-2021, 2021 WL 2947588 (Vet. App. July 9, 2021) (mem. dec.). In
that decision, the Court concluded that the appellant had not met his burden of demonstrating error
in the Board’s conclusion that a January 23, 2016, letter did not express an intent to seek Court
2
review of the October 2015 Board decision that denied entitlement to benefits for PTSD and TDIU,
and thus the Court affirmed the Board’s decision denying an effective date earlier than the date of
the appellant’s claim to reopen—February 2, 2016. Id. at *4; see R. at 10.
The appellant filed a timely motion for reconsideration or panel review on July 14, 2021.
In his motion, he contends that the Court applied too high a burden when assessing whether his
January 23, 2016, correspondence satisfies the elements for a Notice of Appeal (NOA) to the
Court. Motion for Reconsideration at 1-3. Having reviewed the matter, the Court will deny the
motion for reconsideration because the appellant has not demonstrated that the Court overlooked
a point of law or fact. U.S. VET. APP. R. 35(e)(1). Nonetheless, the Court will sua sponte withdraw
its July 9, 2021, decision; issue this decision in its stead; and dismiss the motion for panel review
as moot.
These appeals are timely, and the Court has jurisdiction to review the Board’s decisions
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 set aside as
ultra vires that portion of the July 2, 2020, Board decision that adjudicated whether the January 23,
2016, letter received by the Court and forwarded to the Board constituted an NOA, and the Court
will modify the Board’s decision to remove its finding that the October 2015 Board decision had
become final. The Board’s July 2020 decision denying an effective date earlier than February 2,
2016, for the award of disability compensation for PTSD and TDIU will otherwise be affirmed.
Additionally, because, as discussed below, this Court, and not the Board, is the appropriate
forum to adjudicate whether the appellant’s January 23, 2016, correspondence constitutes an NOA
from the October 15, 2015, Board decision, the Court will direct the Clerk to open a separate
docket and file the appellant’s January 23, 2016, purported NOA. See R. at 1495-99. Proceedings
shall thereafter continue in accordance with the Court’s Rules of Practice and Procedure (Rules).
Further, a determination by this Court as to whether the appellant appealed the October 15,
2015, decision and any potential adjudication of the appeal will, as a matter of law, answer whether
that decision was subject to revision on the basis of CUE and thus whether the Board, in its
January 28, 2020, decision, could adjudicate the appellant’s CUE motion. See Winsett v. Principi,
341 F.3d 1329, 1332 (Fed. Cir. 2003) (recognizing that a claimant is foreclosed from alleging CUE
in a Board decision on a matter that had been reviewed previously in this Court), cert. denied,
540 U.S. 1082 (2003); 38 C.F.R. § 20.1400(b)(2) (2021); see also May v. Nicholson, 19 Vet.App.
3
310, 317 (2005) (explaining that “a CUE [motion] (or any collateral attack) cannot lie as to a
decision that is still open to direct review” (emphasis omitted)). Thus, the Court will order the
Clerk to reopen docket number 20-5042 and deconsolidate the appellant’s appeals under this docket
number and docket number 20-5042, and the Court will sua sponte stay proceedings in docket
number 20-5042 pending further order of the Court.
I. BACKGROUND
The appellant served on active duty in the U.S. Navy from January 1970 to January 1971.
R. at 1900. He filed a disability compensation claim for depression in November 2011, which he
subsequently amended to include PTSD. R. at 3107-24, 3377-86; see R. at 2900-01. He appealed
to the Board a July 2012 VA regional office (RO) decision that denied his claim, and the Board,
in October 2015, issued a decision denying entitlement to disability compensation for PTSD,
finding no nexus between the appellant’s PTSD and his in-service stressor. R. at 1547-66, 1917-25,
2433-43, 2517-18, 2580-643, 2852, 2874-75, 2893-96.
The following month, the appellant alleged that the October 2015 Board decision contained
CUE, and he requested that the Board “review” his PTSD claim. R. at 1544-46; see R. at 1537.
The Board acknowledged receipt of his CUE motion in December 2015 and denied
“reconsideration” on January 12, 2016. R. at 1523-24, 1535-36.
In a January 23, 2016, letter addressed to the “Department of Veterans Affairs” in
Manchester, New Hampshire, the appellant provided his claim number, mailing address, and
phone number, and stated as follows: “I am requesting a reopening and/or review for my claim for
. . . []PTSD[].” R. at 1495; see R. at 1495-517. The appellant referred to a “final denial from [the]
Board . . . dated December 15, 2015″; noted that he “wrote a letter asking for ‘[CUE]’ regarding
the new findings” relating to his stressor; referred to the Board’s January 12, 2016, response to his
motion for reconsideration; and “[r]egarding [his] claim for PTSD,” referred to “page 13 of [the]
final denial []dated October 15, 2015.” R. at 1495. He also mentioned his “problems with PTSD,”
indicated that he had been unaware of the diagnosis until after his hip replacement surgery, and
annexed to his letter a November 2015 psychiatric evaluation, which related his PTSD to an
in-service incident. R. at 1495-97. Finally, the appellant stated that he was “having significant
financial difficulties” and requested expedited consideration. R. at 1496.
4
The appellant mailed the January 23, 2016, correspondence to the RO in Manchester, New
Hampshire, and to the Court; the letter is stamped received by the RO on January 28 and by the
Court on February 1. R. at 1495-99, 1513-16. Further, with his correspondence to the Court, the
appellant included a handwritten note dated January 25, 2016, in which he stated: “I wasn’t sure if
I should send you a copy, so I sent one to the DAV and VA in Manchester, NH[,] and to you also.
Thank you[.]” R. at 1498. The Court forwarded his correspondence to the Board shortly thereafter.
R. at 1500-01. Additionally, on February 2, 2016, the appellant electronically filed a request to
reopen his claim for PTSD on VA Form 21-526 EZ and included a copy of the January 23, 2016,
letter and the November 2015 psychiatric evaluation. R. at 1502-04, 1511-13.
Later that month, the RO denied the appellant’s February 2, 2016, request to reopen a claim
for PTSD; the RO listed the appellant’s February 2, 2016, VA Form 21-526 EZ and his January 23,
2016, correspondence among the evidence considered. R. at 1481-82; see R. at 1467-85. The Board
also informed the appellant that it had received and associated with his file the January 23, 2016,
correspondence, “which was forwarded from the Court,” and noted that his motion to revise, on
the basis of CUE, the October 2015 Board decision was awaiting consideration on the Board’s
docket. R. at 1445.
In the interim, the appellant appealed the February 2016 rating decision, and a decision
review officer, in February 2018, granted benefits for PTSD and TDIU, effective February 2, 2016,
the date VA received the claim to reopen. R. at 202-07, 972, 1002-14, 1458-62; see R. at 1511-13.
Then, in May 2018, the appellant, through current counsel, disagreed with the assigned effective
date. R. at 144-46. The appellant argued as follows:
The February 2016 application to reopen can better be described as a misfiled
[NOA] following a Board denial. [I]n Ratliff v. Shinseki, 26 Vet.App. 356, 360-61
(2013) [(per curiam order)], a misfiled [NOA] of a Board decision filed with [an
RO] tolls the finality of a Board decision.
That is true here. The February 2016 application was within 120 days of the prior
Board denial[] and reflected Mr. Castro’s disagreement with the decision. Under
Ratliff, this qualifies as a[n NOA]. The effective date of the award would then go
back to the date of the initial claim that led to the October 2015 Board denial.
R. at 146.
He subsequently opted in to the revised framework of the Veterans Appeals Improvement
and Modernization Act of 2017 and requested direct review by the Board. R. at 101-05. He asserted
that the correspondence received by the Court on February 1, 2016, met all the requirements to
5
constitute an NOA and, therefore, the October 2015 Board decision did not become final. R. at
103-04. In response to a Statement of the Case, which continued the assigned effective date, the
appellant essentially restated that his correspondence constituted an NOA. R. at 54-57; see R. at
58-83.
On July 2, 2020, the Board denied entitlement to an effective date prior to February 2,
2016, for the award of benefits for PTSD and TDIU. R. at 4-12. As an initial matter, the Board
acknowledged its January 2020 decision denying the appellant’s CUE motion to revise the October
2015 decision. R. at 6. The Board also noted that the appellant appealed the January 2020 decision
to the Court and that he intended to challenge the Board’s factual finding that the October 2015
decision was final. R. at 6-7.
Turning generally to the appellant’s contentions for an earlier effective date, the Board
stated that “‘[t]he statutory framework simply does not allow for the Board to reach back to the
date of the original claim as a possible effective date for an award of service-connected benefits
that is predicated upon a reopened claim.'” R. at 8 (quoting Sears v. Principi, 16 Vet.App. 244,
248 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003)). The Board then determined that the January
2016 letter did not constitute an appeal to this Court. R. at 9-10. In reaching that determination,
the Board noted that the appellant “clearly stated he wished to reopen his claim”; “[t]he letter was
written to [VA] and contained new evidence in the form of a nexus statement”; the Court did not
consider the letter an NOA, as evidenced by it forwarding the letter to the Board; and the appellant
did not pay the Court filing fee or file a declaration of financial hardship. Id.
II. ANALYSIS
A. The Parties’ Arguments
The appellant seeks reversal of the Board’s July 2020 decision and assignment of a
November 2011, effective date for the award of benefits for PTSD and the interrelated issue of
TDIU. Appellant’s Brief (Br.) at 4-8. In that regard, he argues that the Board’s October 2015 denial
of his 2011 claim for PTSD did not become final because he timely filed an appeal of the Board’s
October 2015 decision. Id. at 4-6 (citing U.S. VET. APP. R. 3(c)). To the extent that the Board
concluded otherwise, he asserts that the Court determines its own jurisdiction, and that because
the 2011 claim stream remained open by virtue of filing an NOA within the 120-day appeal period,
the only effective date that is warranted is November 2011. Id. at 6-7.
6
The Secretary counters that the January 23, 2016, correspondence was properly interpreted
as a request to reopen, arguing that the letter did not express an intent to appeal to the Court and
that the appellant’s handwritten note accompanying the letter bolsters the conclusion that he did
not intend to file an NOA. Secretary’s Br. at 9-12. The Secretary further notes that the record lacks
any additional correspondence between the appellant and the Court, the appellant electronically
applied to VA to reopen his claim for PTSD, and he pursued the administrative process when he
appealed the RO’s denial. Id. at 10-11. The Secretary maintains that the Board correctly found that
the October 2015 decision became final and that an effective date prior to February 2, 2016—the
date of his reopened claim—is not permitted by law. Id. at 12-14.
In his reply brief, the appellant contends that the Secretary takes a formulistic and rigid
view of what constitutes an NOA. Reply Br. at 2. The appellant again argues for reversal of the
Board’s decision and an effective date of November 2011, the date of his original claim. Id. at 5.
B. Law
In November 2011, when the appellant first requested benefits for PTSD, and in February
2016, when he requested to reopen his claim, 38 U.S.C. § 5110, which governs the assignment of
an effective date for an award of benefits, provided:
[T]he effective date of an award based on an original claim, a claim reopened after
final adjudication, or a claim for increase, of compensation, dependency and
indemnity compensation, or pension, shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of application therefor.
38 U.S.C. § 5110(a) (2012 & Supp. III (2016)). The implementing regulation similarly provided
that the effective date generally “will be the date of receipt of the claim or the date entitlement
arose, whichever is later.” 38 C.F.R. § 3.400 (2011 and 2016).1
The Board’s determination as to the proper effective date is a finding of fact that will not
be overturned unless the Court finds the determination to be clearly erroneous. Evans v. West,
12 Vet.App. 396, 401 (1999). A finding of fact is clearly erroneous when the Court, after reviewing
1 Effective February 19, 2019, Congress amended portions of section 5110, and VA amended portions of
38 C.F.R. § 3.400, to comply with the appeals processing changes mandated by the Veterans Appeals Improvement
and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 2017). See Pub. L. No. 115-55, § 2(x),
131 Stat. at 1115 (providing the effective date of statutory amendments); VA Claims and Appeals Modernization,
84 Fed. Reg. 138, 170 (Jan. 18, 2019) (final rule); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449, 2449
(Feb. 7, 2019) (notification of effective date for regulatory amendments). However, the regulatory changes apply only
to claims in which an initial decision is issued after February 19, 2019, unless a “legacy” claimant elects to use the
modernized review system. 84 Fed. Reg. at 177. There is no assertion that the new statute or rule should apply here.
7
the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must provide a
statement of the reasons or bases for its determination “adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday
v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
C. Discussion

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-2021
ALBERT F. CASTRO, JR., 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 appellant, Albert F. Castro, Jr., through counsel appeals two
Board of Veterans’ Appeals (Board) decisions. The first decision, dated January 28, 2020, denied
his motion to revise, on the basis of clear and unmistakable error (CUE), an October 2015 Board
decision that denied entitlement to disability compensation for post-traumatic stress disorder
(PTSD). Record (R.) at 28-46. The second decision, dated July 2, 2020, denied entitlement to an
effective date earlier than February 2, 2016, for the award of disability compensation for PTSD
and a total disability rating based on individual unemployability (TDIU). R. at 4-12. In September
2020, the Clerk of the Court (Clerk) granted the appellant’s unopposed motion to consolidate his
appeals under this docket number and docket number 20-5042 and terminated proceedings under
docket number 20-5042.
On July 9, 2021, the Court issued a single-judge memorandum decision that dismissed the
appeal of the Board’s January 28, 2020, decision and affirmed the Board’s July 2, 2020, decision
denying an earlier effective date for the award of disability compensation for PTSD and TDIU.
Castro v. McDonough, No. 20-2021, 2021 WL 2947588 (Vet. App. July 9, 2021) (mem. dec.). In
that decision, the Court concluded that the appellant had not met his burden of demonstrating error
in the Board’s conclusion that a January 23, 2016, letter did not express an intent to seek Court
2
review of the October 2015 Board decision that denied entitlement to benefits for PTSD and TDIU,
and thus the Court affirmed the Board’s decision denying an effective date earlier than the date of
the appellant’s claim to reopen—February 2, 2016. Id. at *4; see R. at 10.
The appellant filed a timely motion for reconsideration or panel review on July 14, 2021.
In his motion, he contends that the Court applied too high a burden when assessing whether his
January 23, 2016, correspondence satisfies the elements for a Notice of Appeal (NOA) to the
Court. Motion for Reconsideration at 1-3. Having reviewed the matter, the Court will deny the
motion for reconsideration because the appellant has not demonstrated that the Court overlooked
a point of law or fact. U.S. VET. APP. R. 35(e)(1). Nonetheless, the Court will sua sponte withdraw
its July 9, 2021, decision; issue this decision in its stead; and dismiss the motion for panel review
as moot.
These appeals are timely, and the Court has jurisdiction to review the Board’s decisions
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 set aside as
ultra vires that portion of the July 2, 2020, Board decision that adjudicated whether the January 23,
2016, letter received by the Court and forwarded to the Board constituted an NOA, and the Court
will modify the Board’s decision to remove its finding that the October 2015 Board decision had
become final. The Board’s July 2020 decision denying an effective date earlier than February 2,
2016, for the award of disability compensation for PTSD and TDIU will otherwise be affirmed.
Additionally, because, as discussed below, this Court, and not the Board, is the appropriate
forum to adjudicate whether the appellant’s January 23, 2016, correspondence constitutes an NOA
from the October 15, 2015, Board decision, the Court will direct the Clerk to open a separate
docket and file the appellant’s January 23, 2016, purported NOA. See R. at 1495-99. Proceedings
shall thereafter continue in accordance with the Court’s Rules of Practice and Procedure (Rules).
Further, a determination by this Court as to whether the appellant appealed the October 15,
2015, decision and any potential adjudication of the appeal will, as a matter of law, answer whether
that decision was subject to revision on the basis of CUE and thus whether the Board, in its
January 28, 2020, decision, could adjudicate the appellant’s CUE motion. See Winsett v. Principi,
341 F.3d 1329, 1332 (Fed. Cir. 2003) (recognizing that a claimant is foreclosed from alleging CUE
in a Board decision on a matter that had been reviewed previously in this Court), cert. denied,
540 U.S. 1082 (2003); 38 C.F.R. § 20.1400(b)(2) (2021); see also May v. Nicholson, 19 Vet.App.
3
310, 317 (2005) (explaining that “a CUE [motion] (or any collateral attack) cannot lie as to a
decision that is still open to direct review” (emphasis omitted)). Thus, the Court will order the
Clerk to reopen docket number 20-5042 and deconsolidate the appellant’s appeals under this docket
number and docket number 20-5042, and the Court will sua sponte stay proceedings in docket
number 20-5042 pending further order of the Court.
I. BACKGROUND
The appellant served on active duty in the U.S. Navy from January 1970 to January 1971.
R. at 1900. He filed a disability compensation claim for depression in November 2011, which he
subsequently amended to include PTSD. R. at 3107-24, 3377-86; see R. at 2900-01. He appealed
to the Board a July 2012 VA regional office (RO) decision that denied his claim, and the Board,
in October 2015, issued a decision denying entitlement to disability compensation for PTSD,
finding no nexus between the appellant’s PTSD and his in-service stressor. R. at 1547-66, 1917-25,
2433-43, 2517-18, 2580-643, 2852, 2874-75, 2893-96.
The following month, the appellant alleged that the October 2015 Board decision contained
CUE, and he requested that the Board “review” his PTSD claim. R. at 1544-46; see R. at 1537.
The Board acknowledged receipt of his CUE motion in December 2015 and denied
“reconsideration” on January 12, 2016. R. at 1523-24, 1535-36.
In a January 23, 2016, letter addressed to the “Department of Veterans Affairs” in
Manchester, New Hampshire, the appellant provided his claim number, mailing address, and
phone number, and stated as follows: “I am requesting a reopening and/or review for my claim for
. . . []PTSD[].” R. at 1495; see R. at 1495-517. The appellant referred to a “final denial from [the]
Board . . . dated December 15, 2015″; noted that he “wrote a letter asking for ‘[CUE]’ regarding
the new findings” relating to his stressor; referred to the Board’s January 12, 2016, response to his
motion for reconsideration; and “[r]egarding [his] claim for PTSD,” referred to “page 13 of [the]
final denial []dated October 15, 2015.” R. at 1495. He also mentioned his “problems with PTSD,”
indicated that he had been unaware of the diagnosis until after his hip replacement surgery, and
annexed to his letter a November 2015 psychiatric evaluation, which related his PTSD to an
in-service incident. R. at 1495-97. Finally, the appellant stated that he was “having significant
financial difficulties” and requested expedited consideration. R. at 1496.
4
The appellant mailed the January 23, 2016, correspondence to the RO in Manchester, New
Hampshire, and to the Court; the letter is stamped received by the RO on January 28 and by the
Court on February 1. R. at 1495-99, 1513-16. Further, with his correspondence to the Court, the
appellant included a handwritten note dated January 25, 2016, in which he stated: “I wasn’t sure if
I should send you a copy, so I sent one to the DAV and VA in Manchester, NH[,] and to you also.
Thank you[.]” R. at 1498. The Court forwarded his correspondence to the Board shortly thereafter.
R. at 1500-01. Additionally, on February 2, 2016, the appellant electronically filed a request to
reopen his claim for PTSD on VA Form 21-526 EZ and included a copy of the January 23, 2016,
letter and the November 2015 psychiatric evaluation. R. at 1502-04, 1511-13.
Later that month, the RO denied the appellant’s February 2, 2016, request to reopen a claim
for PTSD; the RO listed the appellant’s February 2, 2016, VA Form 21-526 EZ and his January 23,
2016, correspondence among the evidence considered. R. at 1481-82; see R. at 1467-85. The Board
also informed the appellant that it had received and associated with his file the January 23, 2016,
correspondence, “which was forwarded from the Court,” and noted that his motion to revise, on
the basis of CUE, the October 2015 Board decision was awaiting consideration on the Board’s
docket. R. at 1445.
In the interim, the appellant appealed the February 2016 rating decision, and a decision
review officer, in February 2018, granted benefits for PTSD and TDIU, effective February 2, 2016,
the date VA received the claim to reopen. R. at 202-07, 972, 1002-14, 1458-62; see R. at 1511-13.
Then, in May 2018, the appellant, through current counsel, disagreed with the assigned effective
date. R. at 144-46. The appellant argued as follows:
The February 2016 application to reopen can better be described as a misfiled
[NOA] following a Board denial. [I]n Ratliff v. Shinseki, 26 Vet.App. 356, 360-61
(2013) [(per curiam order)], a misfiled [NOA] of a Board decision filed with [an
RO] tolls the finality of a Board decision.
That is true here. The February 2016 application was within 120 days of the prior
Board denial[] and reflected Mr. Castro’s disagreement with the decision. Under
Ratliff, this qualifies as a[n NOA]. The effective date of the award would then go
back to the date of the initial claim that led to the October 2015 Board denial.
R. at 146.
He subsequently opted in to the revised framework of the Veterans Appeals Improvement
and Modernization Act of 2017 and requested direct review by the Board. R. at 101-05. He asserted
that the correspondence received by the Court on February 1, 2016, met all the requirements to
5
constitute an NOA and, therefore, the October 2015 Board decision did not become final. R. at
103-04. In response to a Statement of the Case, which continued the assigned effective date, the
appellant essentially restated that his correspondence constituted an NOA. R. at 54-57; see R. at
58-83.
On July 2, 2020, the Board denied entitlement to an effective date prior to February 2,
2016, for the award of benefits for PTSD and TDIU. R. at 4-12. As an initial matter, the Board
acknowledged its January 2020 decision denying the appellant’s CUE motion to revise the October
2015 decision. R. at 6. The Board also noted that the appellant appealed the January 2020 decision
to the Court and that he intended to challenge the Board’s factual finding that the October 2015
decision was final. R. at 6-7.
Turning generally to the appellant’s contentions for an earlier effective date, the Board
stated that “‘[t]he statutory framework simply does not allow for the Board to reach back to the
date of the original claim as a possible effective date for an award of service-connected benefits
that is predicated upon a reopened claim.'” R. at 8 (quoting Sears v. Principi, 16 Vet.App. 244,
248 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003)). The Board then determined that the January
2016 letter did not constitute an appeal to this Court. R. at 9-10. In reaching that determination,
the Board noted that the appellant “clearly stated he wished to reopen his claim”; “[t]he letter was
written to [VA] and contained new evidence in the form of a nexus statement”; the Court did not
consider the letter an NOA, as evidenced by it forwarding the letter to the Board; and the appellant
did not pay the Court filing fee or file a declaration of financial hardship. Id.
II. ANALYSIS
A. The Parties’ Arguments
The appellant seeks reversal of the Board’s July 2020 decision and assignment of a
November 2011, effective date for the award of benefits for PTSD and the interrelated issue of
TDIU. Appellant’s Brief (Br.) at 4-8. In that regard, he argues that the Board’s October 2015 denial
of his 2011 claim for PTSD did not become final because he timely filed an appeal of the Board’s
October 2015 decision. Id. at 4-6 (citing U.S. VET. APP. R. 3(c)). To the extent that the Board
concluded otherwise, he asserts that the Court determines its own jurisdiction, and that because
the 2011 claim stream remained open by virtue of filing an NOA within the 120-day appeal period,
the only effective date that is warranted is November 2011. Id. at 6-7.
6
The Secretary counters that the January 23, 2016, correspondence was properly interpreted
as a request to reopen, arguing that the letter did not express an intent to appeal to the Court and
that the appellant’s handwritten note accompanying the letter bolsters the conclusion that he did
not intend to file an NOA. Secretary’s Br. at 9-12. The Secretary further notes that the record lacks
any additional correspondence between the appellant and the Court, the appellant electronically
applied to VA to reopen his claim for PTSD, and he pursued the administrative process when he
appealed the RO’s denial. Id. at 10-11. The Secretary maintains that the Board correctly found that
the October 2015 decision became final and that an effective date prior to February 2, 2016—the
date of his reopened claim—is not permitted by law. Id. at 12-14.
In his reply brief, the appellant contends that the Secretary takes a formulistic and rigid
view of what constitutes an NOA. Reply Br. at 2. The appellant again argues for reversal of the
Board’s decision and an effective date of November 2011, the date of his original claim. Id. at 5.
B. Law
In November 2011, when the appellant first requested benefits for PTSD, and in February
2016, when he requested to reopen his claim, 38 U.S.C. § 5110, which governs the assignment of
an effective date for an award of benefits, provided:
[T]he effective date of an award based on an original claim, a claim reopened after
final adjudication, or a claim for increase, of compensation, dependency and
indemnity compensation, or pension, shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of application therefor.
38 U.S.C. § 5110(a) (2012 & Supp. III (2016)). The implementing regulation similarly provided
that the effective date generally “will be the date of receipt of the claim or the date entitlement
arose, whichever is later.” 38 C.F.R. § 3.400 (2011 and 2016).1
The Board’s determination as to the proper effective date is a finding of fact that will not
be overturned unless the Court finds the determination to be clearly erroneous. Evans v. West,
12 Vet.App. 396, 401 (1999). A finding of fact is clearly erroneous when the Court, after reviewing
1 Effective February 19, 2019, Congress amended portions of section 5110, and VA amended portions of
38 C.F.R. § 3.400, to comply with the appeals processing changes mandated by the Veterans Appeals Improvement
and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (Aug. 23, 2017). See Pub. L. No. 115-55, § 2(x),
131 Stat. at 1115 (providing the effective date of statutory amendments); VA Claims and Appeals Modernization,
84 Fed. Reg. 138, 170 (Jan. 18, 2019) (final rule); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449, 2449
(Feb. 7, 2019) (notification of effective date for regulatory amendments). However, the regulatory changes apply only
to claims in which an initial decision is issued after February 19, 2019, unless a “legacy” claimant elects to use the
modernized review system. 84 Fed. Reg. at 177. There is no assertion that the new statute or rule should apply here.
7
the entire evidence, “is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see Gilbert v. Derwinski,
1 Vet.App. 49, 52 (1990). As with any material issue of fact or law, the Board must provide a
statement of the reasons or bases for its determination “adequate to enable a claimant to understand
the precise basis for the Board’s decision, as well as to facilitate review in this Court.” Allday
v. Brown, 7 Vet.App. 517, 527 (1995); see 38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 56-57.
C. Discussion

  1. July 2020 Board Decision
    The appellant argues that his January 2016 letter met all the requirements of an NOA and
    that, because he filed an NOA seeking judicial review of the October 2015 Board decision, his
    2011 claim stream remained open. He asks the Court to reverse the Board’s decision to the contrary
    and to direct the Board to award an effective date of November 2011. The Court cannot grant the
    requested relief.
    As an initial matter, the Court notes that, like Warren v. McDonald, where the Court
    discerned two claim streams—a December 2008 claim for service connection for sleep apnea and
    a May 2010 request to reopen a claim for service connection for sleep apnea—this case involves
    two claim streams. 28 Vet.App. 214, 219-20 (2016). Here, it is undisputed that the appellant filed
    a November 2011 disability compensation claim for PTSD, which was initially denied by the RO
    and appealed to the Board. See Appellant’s Br. at 3; Secretary’s Br. at 3. The Board thereafter
    denied entitlement to benefits for PTSD and TDIU in the October 15, 2015, decision. R. at
    1547-66. Although the Court received correspondence from the appellant in January 2016, the
    Court did not docket the documents as an NOA but instead forwarded them to the Board. R. at
    1495-99, 1500-01.
    The second claim stream began in February 2016 when the appellant electronically filed a
    request to reopen his claim for PTSD on VA Form 21-526 EZ and included a copy of the
    January 23, 2016, letter and a November 2015 psychiatric evaluation. R. at 1502-04, 1511-13.
    Ultimately, in the course of adjudicating this claim stream, the RO granted benefits for PTSD and
    TDIU, effective from February 2016, the date of his claim to reopen. R. at 202-07. In the July 2020
    decision on appeal, the Board noted that this matter stems from the appellant’s disagreement with
    the assigned effective date. See R. at 6.
    8
    The appellant’s arguments for an earlier effective date center on whether the Board erred
    in determining that he did not submit to the Court a valid NOA from the October 2015 Board
    decision. His arguments are not availing for two reasons. First, the appellant has not explained
    how a potentially unadjudicated appeal at the Court in the first claim stream, without more, could
    lead to an earlier effective date in the second claim stream that was before the Board and now
    before the Court. Second, neither the Board nor the appellant has addressed on what basis the
    Board, a lower tribunal, has authority to adjudicate whether a document submitted to the Court
    constitutes a valid NOA in accordance with Rule 3(c) of the Court’s Rules and established caselaw.
    a. Appellant is Not Entitled to an Earlier Effective Date as a Matter of Law
    To begin, the Court’s analysis in Warren is instructive. 28 Vet.App. at 219-21. There, the
    Court explained that, when there are two claim streams proceeding simultaneously, the RO’s grant
    of benefits in the latter claim stream and assignment of an effective date as of the date of the
    veteran’s claim to reopen could not terminate the veteran’s appeal to the Board in the first stream.
    Id. at 221. The Court noted that, although the second claim stream involved entitlement to benefits
    for the same disability, the RO could only award benefits effective from the date of the purported
    claim to reopen, and no earlier. Id. (citing 38 U.S.C. § 5110). On the other hand, the Court
    explained that the Board, in the first claim stream, had jurisdiction to adjudicate the merits of the
    first claim and not whether the effective date assigned in the second claim stream was proper. See id.; see also Bailey v. Wilkie, 33 Vet.App. 188, 204 (2021) (noting that an RO decision granting benefits could not divest the Board of jurisdiction over the initial appeal and that, on remand, the appellant was entitled to have his appeal processed to completion thus preserving the possibility of an earlier effective date).
    Here, the Court concludes that the appellant’s counsel, and consequently the Board in July
    2020, improperly focused on whether the appellant appealed to the Court the October 2015 Board
    decision denying benefits for PTSD in the first claim stream, instead of the claim then before the
    Board—the February 2016 claim to reopen. The issue decided by the RO in the second claim
    stream and appealed to the Board pertained to the proper effective date assigned by the RO in 2018
    when it awarded benefits for PTSD. Consequently, even assuming that the November 2011 claim
    stream is not final because of an unadjudicated NOA at the Court, the earliest possible effective
    date resulting from the appellant’s February 2016 claim to reopen, as a matter of law, is the date
    of the claim to reopen. See Warren, 28 Vet.App. at 215-20; see also Leonard v. Nicholson,
    9
    405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the
    appellant] cannot receive disability payments for a time frame earlier than the application date of
    his claim to reopen, even with new evidence supporting an earlier disability date.”); Flash
    v. Brown, 8 Vet.App. 332, 340 (1995) (“[W]hen a claim to reopen is successful and the benefit
    sought is awarded upon readjudication, the effective date is the date of the claim to reopen.”).
    In the decision on appeal, the Board ultimately determined that the appellant was not
    entitled to an effective date earlier than the date of his claim to reopen. R. at 10. That determination
    is consistent with the controlling effective date statute and regulation and is not clearly erroneous.
    See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; see also Evans, 12 Vet.App. at 401. Accordingly, the
    Court will affirm the Board’s decision to the extent that it denied an earlier effective date based on
    the appellant’s February 2016 claim to reopen. Moreover, because it was unnecessary for the
    Board, in reaching that conclusion, to address the procedural posture of the separate 2011 claim
    stream, the Court will modify the Board decision to remove its finding that the October 2015 Board
    decision had become final. R. at 10; see Seri v. Nicholson, 21 Vet.App. 441, 444 (2007) (modifying
    a Board decision to remove an unnecessary conclusion as to the finality of an unrelated prior
    decision).
    b. Board Lacked Authority to Decide Whether the Appellant Submitted an NOA
    As explained below, the Court will also set aside as ultra vires that part of the July 2020
    Board decision that adjudicated whether the appellant’s January 2016 correspondence was a valid
    NOA. See Smith v. Brown, 10 Vet.App. 330, 334 (1997) (vacating as ultra vires a Board decision
    issued without jurisdiction and dismissing the appeal); see also Rudd v. Nicholson, 20 Vet.App.
    296, 300 (2006) (concluding that the Board erred when it adjudicated an improper freestanding
    request for an earlier effective date, vacating the Board decision, and dismissing the appeal).
    “When a claim is properly appealed to the Board, the Board is vested with the jurisdiction to review
    ‘[a]ll questions in a matter which under section 511(a) of . . . [title 38] is subject to [a] decision [of]
    the Secretary.'” Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc) (quoting 38 U.S.C.
    § 7104(a)) (citing 38 U.S.C. § 7105(a); Bernard v. Brown, 4 Vet.App. 384, 390-91 (1993)). Yet,
    nothing in a Notice of Disagreement or Substantive Appeal could confer jurisdiction upon the
    Board over a matter “that the Board was never authorized to hear in the first place.” Braan
    v. McDonald, 28 Vet.App. 232, 237 (2016) (citing Jarrell, 20 Vet.App. at 331); see Scates
    v. Principi, 282 F.3d 1362, 1367 (Fed. Cir. 2002) (“The Board is primarily an appellate tribunal
    10
    [that] . . . serves as the deciding entity ‘on appeal to the Secretary’ of a question ‘subject to decision
    by the Secretary’ under [section] 511(a).” (quoting 38 U.S.C. § 7104(a)).
    Here, there is no dispute that the Board had jurisdiction to adjudicate the proper effective
    date for the grant of benefits for PTSD and TDIU in the second claim stream. But that grant of
    jurisdiction did not otherwise authorize the Board to determine whether the appellant submitted a
    jurisdiction-conferring NOA to the Court. See Boyd v. McDonald, 27 Vet.App. 63, 70 (2014)
    (“[T]he filing of an NOA is a jurisdictional requirement.”); see also Winsett, 341 F.3d at 1331
    (allowing a lower tribunal to review a higher tribunal “is not logical”). Rather, “it is wellestablished
    judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over
    each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the
    court or tribunal, sua sponte or by any party at any stage in the proceedings, and, once apparent,
    must be adjudicated.” Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see id. (concluding
    that the Board is required to determine its jurisdiction, and that the RO’s determination as to the
    matter is irrelevant); Monk v. Wilkie, 32 Vet.App. 87, 96 n.4-5 (2019) (en banc order) (recognizing
    that the United States Court of Appeals for the Federal Circuit, not this Court, is obliged to
    determine its own jurisdiction), aff’d in part, dismissed in part sub nom. Monk v. Tran,
    843 F. App’x 275 (Fed. Cir. 2021). Because this Court, not the Board, must determine whether the
    appellant submitted a valid NOA from the October 2015 decision, the Board erred to the extent
    that it entertained the appellant’s argument concerning a potential unadjudicated NOA.
    In that regard, the Court’s history of adjudicating whether a document constitutes an NOA
    reflects that, had the appellant believed that the Court failed to docket his appeal from the October
    2015 Board decision, a proper procedure would have been to file a formal appeal at the Court and,
    if the Secretary objected, to adjudicate here whether the January 23, 2016, letter received by the
    Court on February 1, 2016, constituted a timely submitted NOA. See generally Boyd, 27 Vet.App.
    at 69-70 (adjudicating whether the pro se appellant’s NOA appealed both the Board’s June 2008
    and August 2009 decisions); Ratliff, 26 Vet.App. at 357-58 (considering, in the context of a motion
    to dismiss an untimely appeal, whether a document submitted to the RO within the appeal period
    constituted a timely, but misfiled, NOA); Kouvaris v. Shinseki, 22 Vet.App. 377, 378-80 (2009)
    (considering whether a document submitted to the Board within the 120-day appeal period
    constituted a misfiled NOA). Notably, though, despite this appeal and the appellant’s unwavering
    11
    assertion through counsel that his January 2016 correspondence constitutes an NOA, the appellant
    has not asked the Court to docket the NOA and adjudicate the appeal.
    Nonetheless, because it is clear that the appellant believes that he filed an NOA from the
    October 2015 decision and this Court is the appropriate forum to adjudicate whether the appellant’s
    January 23, 2016, correspondence constitutes an NOA, the Court will sua sponte direct the Clerk
    to open a separate docket and file the appellant’s January 23, 2016, purported NOA. See R. at
    1495-99; U.S. VET. APP. R. 2. Proceedings shall thereafter continue in accordance with the Court’s
    Rules.
  2. January 2020 Board Decision
    Although the Court, in September 2020, granted the appellant’s unopposed motion to
    consolidate his appeals from the Board’s January and July 2020 decisions, the appellant did not in
    his briefs make any specific assertion of error in the January 2020 decision that denied his motion
    to revise the October 2015 Board decision. Ordinarily, the Court would be inclined to dismiss the
    appeal as abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
    Because, however, a determination about whether the October 2015 Board decision was separately
    appealed to the Court and is consequently open on direct review will necessarily affect whether
    that decision was subject to collateral attack, the Court concludes that it would be premature to
    dismiss or adjudicate the appellant’s appeal from the January 2020 decision. See May, 19 Vet.App.
    at 320 (vacating the Board’s decision that adjudicated a motion to revise a prior Board decision
    that was still appealable to the Court); see also Appellant’s August 2020 Motion to Consolidate
    at 1 (“The predicate of any CUE challenge is that there was a final and unappealed prior
    decision.”). Thus, the Court will deconsolidate the appellant’s appeals, direct the Clerk to reopen
    docket number 20-5042, and stay proceedings in docket number 20-5042 pending further order of
    the Court.
    III. CONCLUSION
    After consideration of the parties’ pleadings, including the appellant’s motion for
    reconsideration, and a review of the record, the appellant’s July 14, 2021, motion for
    reconsideration is denied; it is ordered, sua sponte, that the Court’s July 9, 2021, memorandum
    decision is WITHDRAWN; this decision is issued in its stead; and the appellant’s July 14, 2021,
    motion for panel review is dismissed as moot. That portion of the Board’s July 2, 2020, decision
    12
    that adjudicated whether the January 23, 2016, letter received by the Court and forwarded to the
    Board constituted an NOA is SET ASIDE. The Board decision is MODIFIED to remove its finding
    that the October 2015 Board decision became final, and the remainder of the Board decision
    denying an effective date earlier than February 2, 2016—the date of the appellant’s claim to
    reopen—for the award of disability compensation for PTSD and TDIU is AFFIRMED.
    Additionally, the Clerk is directed to (1) open a separate docket and file the appellant’s
    January 23, 2016, purported NOA, (2) reopen docket number 20-5042, (3) deconsolidate the
    appellant’s appeals under this docket number and docket number 20-5042, and (4) file this decision
    in docket number 20-5042. Proceedings in docket number 20-5042 are stayed pending further
    order of the Court. Proceedings in the new docket shall proceed in accordance with the Court’s
    Rules.
    DATED: October 1, 2021
    Copies to:
    Robert W. Legg, Esq.
    VA General Counsel (027)
  1. July 2020 Board Decision
    The appellant argues that his January 2016 letter met all the requirements of an NOA and
    that, because he filed an NOA seeking judicial review of the October 2015 Board decision, his
    2011 claim stream remained open. He asks the Court to reverse the Board’s decision to the contrary
    and to direct the Board to award an effective date of November 2011. The Court cannot grant the
    requested relief.
    As an initial matter, the Court notes that, like Warren v. McDonald, where the Court
    discerned two claim streams—a December 2008 claim for service connection for sleep apnea and
    a May 2010 request to reopen a claim for service connection for sleep apnea—this case involves
    two claim streams. 28 Vet.App. 214, 219-20 (2016). Here, it is undisputed that the appellant filed
    a November 2011 disability compensation claim for PTSD, which was initially denied by the RO
    and appealed to the Board. See Appellant’s Br. at 3; Secretary’s Br. at 3. The Board thereafter
    denied entitlement to benefits for PTSD and TDIU in the October 15, 2015, decision. R. at
    1547-66. Although the Court received correspondence from the appellant in January 2016, the
    Court did not docket the documents as an NOA but instead forwarded them to the Board. R. at
    1495-99, 1500-01.
    The second claim stream began in February 2016 when the appellant electronically filed a
    request to reopen his claim for PTSD on VA Form 21-526 EZ and included a copy of the
    January 23, 2016, letter and a November 2015 psychiatric evaluation. R. at 1502-04, 1511-13.
    Ultimately, in the course of adjudicating this claim stream, the RO granted benefits for PTSD and
    TDIU, effective from February 2016, the date of his claim to reopen. R. at 202-07. In the July 2020
    decision on appeal, the Board noted that this matter stems from the appellant’s disagreement with
    the assigned effective date. See R. at 6.
    8
    The appellant’s arguments for an earlier effective date center on whether the Board erred
    in determining that he did not submit to the Court a valid NOA from the October 2015 Board
    decision. His arguments are not availing for two reasons. First, the appellant has not explained
    how a potentially unadjudicated appeal at the Court in the first claim stream, without more, could
    lead to an earlier effective date in the second claim stream that was before the Board and now
    before the Court. Second, neither the Board nor the appellant has addressed on what basis the
    Board, a lower tribunal, has authority to adjudicate whether a document submitted to the Court
    constitutes a valid NOA in accordance with Rule 3(c) of the Court’s Rules and established caselaw.
    a. Appellant is Not Entitled to an Earlier Effective Date as a Matter of Law
    To begin, the Court’s analysis in Warren is instructive. 28 Vet.App. at 219-21. There, the
    Court explained that, when there are two claim streams proceeding simultaneously, the RO’s grant
    of benefits in the latter claim stream and assignment of an effective date as of the date of the
    veteran’s claim to reopen could not terminate the veteran’s appeal to the Board in the first stream.
    Id. at 221. The Court noted that, although the second claim stream involved entitlement to benefits
    for the same disability, the RO could only award benefits effective from the date of the purported
    claim to reopen, and no earlier. Id. (citing 38 U.S.C. § 5110). On the other hand, the Court
    explained that the Board, in the first claim stream, had jurisdiction to adjudicate the merits of the
    first claim and not whether the effective date assigned in the second claim stream was proper. See
    id.; see also Bailey v. Wilkie, 33 Vet.App. 188, 204 (2021) (noting that an RO decision granting
    benefits could not divest the Board of jurisdiction over the initial appeal and that, on remand, the
    appellant was entitled to have his appeal processed to completion thus preserving the possibility
    of an earlier effective date).
    Here, the Court concludes that the appellant’s counsel, and consequently the Board in July
    2020, improperly focused on whether the appellant appealed to the Court the October 2015 Board
    decision denying benefits for PTSD in the first claim stream, instead of the claim then before the
    Board—the February 2016 claim to reopen. The issue decided by the RO in the second claim
    stream and appealed to the Board pertained to the proper effective date assigned by the RO in 2018
    when it awarded benefits for PTSD. Consequently, even assuming that the November 2011 claim
    stream is not final because of an unadjudicated NOA at the Court, the earliest possible effective
    date resulting from the appellant’s February 2016 claim to reopen, as a matter of law, is the date
    of the claim to reopen. See Warren, 28 Vet.App. at 215-20; see also Leonard v. Nicholson,
    9
    405 F.3d 1333, 1337 (Fed. Cir. 2005) (“[A]bsent a showing of [clear and unmistakable error, the
    appellant] cannot receive disability payments for a time frame earlier than the application date of
    his claim to reopen, even with new evidence supporting an earlier disability date.”); Flash
    v. Brown, 8 Vet.App. 332, 340 (1995) (“[W]hen a claim to reopen is successful and the benefit
    sought is awarded upon readjudication, the effective date is the date of the claim to reopen.”).
    In the decision on appeal, the Board ultimately determined that the appellant was not
    entitled to an effective date earlier than the date of his claim to reopen. R. at 10. That determination
    is consistent with the controlling effective date statute and regulation and is not clearly erroneous.
    See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; see also Evans, 12 Vet.App. at 401. Accordingly, the
    Court will affirm the Board’s decision to the extent that it denied an earlier effective date based on
    the appellant’s February 2016 claim to reopen. Moreover, because it was unnecessary for the
    Board, in reaching that conclusion, to address the procedural posture of the separate 2011 claim
    stream, the Court will modify the Board decision to remove its finding that the October 2015 Board
    decision had become final. R. at 10; see Seri v. Nicholson, 21 Vet.App. 441, 444 (2007) (modifying
    a Board decision to remove an unnecessary conclusion as to the finality of an unrelated prior
    decision).
    b. Board Lacked Authority to Decide Whether the Appellant Submitted an NOA
    As explained below, the Court will also set aside as ultra vires that part of the July 2020
    Board decision that adjudicated whether the appellant’s January 2016 correspondence was a valid
    NOA. See Smith v. Brown, 10 Vet.App. 330, 334 (1997) (vacating as ultra vires a Board decision
    issued without jurisdiction and dismissing the appeal); see also Rudd v. Nicholson, 20 Vet.App.
    296, 300 (2006) (concluding that the Board erred when it adjudicated an improper freestanding
    request for an earlier effective date, vacating the Board decision, and dismissing the appeal).
    “When a claim is properly appealed to the Board, the Board is vested with the jurisdiction to review
    ‘[a]ll questions in a matter which under section 511(a) of . . . [title 38] is subject to [a] decision [of]
    the Secretary.'” Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc) (quoting 38 U.S.C.
    § 7104(a)) (citing 38 U.S.C. § 7105(a); Bernard v. Brown, 4 Vet.App. 384, 390-91 (1993)). Yet,
    nothing in a Notice of Disagreement or Substantive Appeal could confer jurisdiction upon the
    Board over a matter “that the Board was never authorized to hear in the first place.” Braan
    v. McDonald, 28 Vet.App. 232, 237 (2016) (citing Jarrell, 20 Vet.App. at 331); see Scates
    v. Principi, 282 F.3d 1362, 1367 (Fed. Cir. 2002) (“The Board is primarily an appellate tribunal
    10
    [that] . . . serves as the deciding entity ‘on appeal to the Secretary’ of a question ‘subject to decision
    by the Secretary’ under [section] 511(a).” (quoting 38 U.S.C. § 7104(a)).
    Here, there is no dispute that the Board had jurisdiction to adjudicate the proper effective
    date for the grant of benefits for PTSD and TDIU in the second claim stream. But that grant of
    jurisdiction did not otherwise authorize the Board to determine whether the appellant submitted a
    jurisdiction-conferring NOA to the Court. See Boyd v. McDonald, 27 Vet.App. 63, 70 (2014)
    (“[T]he filing of an NOA is a jurisdictional requirement.”); see also Winsett, 341 F.3d at 1331
    (allowing a lower tribunal to review a higher tribunal “is not logical”). Rather, “it is wellestablished
    judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over
    each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the
    court or tribunal, sua sponte or by any party at any stage in the proceedings, and, once apparent,
    must be adjudicated.” Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see id. (concluding
    that the Board is required to determine its jurisdiction, and that the RO’s determination as to the
    matter is irrelevant); Monk v. Wilkie, 32 Vet.App. 87, 96 n.4-5 (2019) (en banc order) (recognizing
    that the United States Court of Appeals for the Federal Circuit, not this Court, is obliged to
    determine its own jurisdiction), aff’d in part, dismissed in part sub nom. Monk v. Tran,
    843 F. App’x 275 (Fed. Cir. 2021). Because this Court, not the Board, must determine whether the
    appellant submitted a valid NOA from the October 2015 decision, the Board erred to the extent
    that it entertained the appellant’s argument concerning a potential unadjudicated NOA.
    In that regard, the Court’s history of adjudicating whether a document constitutes an NOA
    reflects that, had the appellant believed that the Court failed to docket his appeal from the October
    2015 Board decision, a proper procedure would have been to file a formal appeal at the Court and,
    if the Secretary objected, to adjudicate here whether the January 23, 2016, letter received by the
    Court on February 1, 2016, constituted a timely submitted NOA. See generally Boyd, 27 Vet.App.
    at 69-70 (adjudicating whether the pro se appellant’s NOA appealed both the Board’s June 2008
    and August 2009 decisions); Ratliff, 26 Vet.App. at 357-58 (considering, in the context of a motion
    to dismiss an untimely appeal, whether a document submitted to the RO within the appeal period
    constituted a timely, but misfiled, NOA); Kouvaris v. Shinseki, 22 Vet.App. 377, 378-80 (2009)
    (considering whether a document submitted to the Board within the 120-day appeal period
    constituted a misfiled NOA). Notably, though, despite this appeal and the appellant’s unwavering
    11
    assertion through counsel that his January 2016 correspondence constitutes an NOA, the appellant
    has not asked the Court to docket the NOA and adjudicate the appeal.
    Nonetheless, because it is clear that the appellant believes that he filed an NOA from the
    October 2015 decision and this Court is the appropriate forum to adjudicate whether the appellant’s
    January 23, 2016, correspondence constitutes an NOA, the Court will sua sponte direct the Clerk
    to open a separate docket and file the appellant’s January 23, 2016, purported NOA. See R. at
    1495-99; U.S. VET. APP. R. 2. Proceedings shall thereafter continue in accordance with the Court’s
    Rules.
  2. January 2020 Board Decision
    Although the Court, in September 2020, granted the appellant’s unopposed motion to
    consolidate his appeals from the Board’s January and July 2020 decisions, the appellant did not in
    his briefs make any specific assertion of error in the January 2020 decision that denied his motion
    to revise the October 2015 Board decision. Ordinarily, the Court would be inclined to dismiss the
    appeal as abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 285 (2015) (en banc).
    Because, however, a determination about whether the October 2015 Board decision was separately
    appealed to the Court and is consequently open on direct review will necessarily affect whether
    that decision was subject to collateral attack, the Court concludes that it would be premature to
    dismiss or adjudicate the appellant’s appeal from the January 2020 decision. See May, 19 Vet.App.
    at 320 (vacating the Board’s decision that adjudicated a motion to revise a prior Board decision
    that was still appealable to the Court); see also Appellant’s August 2020 Motion to Consolidate
    at 1 (“The predicate of any CUE challenge is that there was a final and unappealed prior
    decision.”). Thus, the Court will deconsolidate the appellant’s appeals, direct the Clerk to reopen
    docket number 20-5042, and stay proceedings in docket number 20-5042 pending further order of
    the Court.
    III. CONCLUSION
    After consideration of the parties’ pleadings, including the appellant’s motion for
    reconsideration, and a review of the record, the appellant’s July 14, 2021, motion for
    reconsideration is denied; it is ordered, sua sponte, that the Court’s July 9, 2021, memorandum
    decision is WITHDRAWN; this decision is issued in its stead; and the appellant’s July 14, 2021,
    motion for panel review is dismissed as moot. That portion of the Board’s July 2, 2020, decision
    12
    that adjudicated whether the January 23, 2016, letter received by the Court and forwarded to the
    Board constituted an NOA is SET ASIDE. The Board decision is MODIFIED to remove its finding
    that the October 2015 Board decision became final, and the remainder of the Board decision
    denying an effective date earlier than February 2, 2016—the date of the appellant’s claim to
    reopen—for the award of disability compensation for PTSD and TDIU is AFFIRMED.
    Additionally, the Clerk is directed to (1) open a separate docket and file the appellant’s
    January 23, 2016, purported NOA, (2) reopen docket number 20-5042, (3) deconsolidate the
    appellant’s appeals under this docket number and docket number 20-5042, and (4) file this decision
    in docket number 20-5042. Proceedings in docket number 20-5042 are stayed pending further
    order of the Court. Proceedings in the new docket shall proceed in accordance with the Court’s
    Rules.
    DATED: October 1, 2021
    Copies to:
    Robert W. Legg, Esq.
    VA General Counsel (027)
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