Debra B. Sapp v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NOS. 16-3558 AND 18-0701

DEBRA B. SAPP, APPELLANT,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

BETTIE A.P. SAPP, INTERVENOR.

AND

NO. 16-2104

BETTIE A.P. SAPP, APPELLANT,

V.

DAVID J. SHULKIN, M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before SCHOELEN, BARTLEY, and MEREDITH, Judges.

ORDER

Here the Court addresses the issue of three docketed appeals that are related to a

simultaneously contested claim for survivor benefits. Pending before the Court is the Secretary's

opposed February 13, 2018, motion to consolidate two separate appeals by appellant Debra B.

Sapp (Debra), #16-3558 and #18-0701. Bettie A.P. Sapp (Bettie), who has intervened in both

appeals, filed an opposition.1 In #16-3558, the Court docketed Debra's appeal of a February 17,

2016, Board of Veterans' Appeals (Board) decision that denied her surviving spouse status and, as

a consequence, also denied entitlement to survivor benefits. In #18-0701, the Court docketed

Debra's appeal of a separate February 17, 2016, Board decision that recognized Bettie as the

veteran's surviving spouse, but denied her entitlement to survivor benefits.

In a third docket that is outside the Secretary's motion to consolidate, #16-2104, Bettie

appealed her Board decision, the same Board decision currently on appeal in #18-0701. See Sapp

(Bettie A.P.) v. Shulkin, U.S. Vet. App. No. 16-2104 (unpublished order, Feb. 17, 2017). On

February 17, 2017, mandate issued in #16-2104 when the Court granted Bettie and the Secretary's

joint motion for partial remand (JMPR), vacated Bettie's Board decision as to entitlement to service

1

In the interest of clarity and to avoid the repetitive use of their identical last names, the Court will refer to

Debra B. Sapp and Bettie A.P. Sapp by their first names.

connection for the veteran's cause of death and remanded that matter, and dismissed the appeal as

to the issue of surviving spouse status.

This matter sua sponte was referred to a panel of the Court to address the consolidation

motion and to consider the related issues of the import of Bettie's appeal and mandate in #16-2104

and whether VA's undisputed failure to comply with simultaneously contested claims procedures

was prejudicial error. We hold that, because, in a simultaneously contested claim context, relevant

statutory and regulatory provisions provide heightened notice requirements and special procedures

that protect each claimant's opportunity to participate, VA's failure to comply with such procedures

in Debra's and Bettie's simultaneously contested claim renders the adjudication process that

occurred here unfair and therefore prejudicial.

Although the Secretary asks us to consolidate only Debra's appeals (#16-3558 and

#18-0701), the Court concludes, for the reasons discussed below, that consolidation of those

appeals is not sufficient to repair the evident prejudice. Rather, because mandate issued in Bettie's

own appeal (#16-2104), we conclude that the only way to ensure fundamental fairness is for VA

to readjudicate this simultaneously contested claim and ensure that VA's heightened procedural

requirements for simultaneously contested claims are satisfied for both Debra and Bettie.

Moreover, despite Debra's appeals being at different stages in the appellate process, in light of

VA's undisputed failure to follow its own heightened procedural requirements, the Court concludes

that dispositive action is proper at this juncture. Accordingly, the Court will deny the Secretary's

motion to consolidate #16-3558 and #18-0701; recall mandate in #16-2104; consolidate all three

appeals (#16-2104, #16-3558, and #18-0701); set aside both February 17, 2016, Board decisions;

and remand these matters for further development, if necessary, and adjudication in accordance

with the procedures that govern simultaneously contested claims.

I. BACKGROUND2

A. Procedural Background Prior to the February 2016 Board Decisions

Veteran Donald W. Sapp served in the U.S. Army from April 1968 to December 1969,

including service in the Republic of Vietnam. Appellant's Brief (Br.) in #16-3558 at 2. 3 In a

February 2006 rating decision, a VA regional office (RO) granted him service connection for type

II diabetes mellitus, hypertension, upper extremity peripheral neuropathy, left leg amputation, and

erectile dysfunction. Intervenor's Br. at 2-3. On April 30, 2010, Mr. Sapp died. Secretary's Br.4

at 3.

2

Due to the procedural posture of these appeals, a record of proceedings has not been filed in any of the

relevant dockets. The factual recitation that follows is based on the Court's assimilation of facts from various briefs

and motions filed across the relevant dockets. In the interest of clarity, the Court has limited, where possible, the

citations to the primary source of information.

3

All citations to the parties' court submissions are from #16-3558 unless otherwise specified.

4

The Secretary filed two briefs in #16-3558, one on April 19, 2017, when Debra was self-represented, and

one on February 15, 2018, following Debra securing counsel and filing a substitute brief. All references to the

Secretary's brief are to the Secretary's February 15, 2018, brief.

2

In May 2010, Debra and Bettie each filed an application for entitlement to survivor benefits

as the veteran's surviving spouse. Id. at 3. In July 2010, the RO issued two separate decisions.

Intervenor's Br. at 3. One decision was issued only to Bettie, denying her surviving spouse status.

Id. And a separate decision was issued only to Debra, denying her surviving spouse status on a

different basis. Id. Both appellants submitted timely Notices of Disagreement (NODs) as to their

respective decisions and each requested a decision review officer (DRO) hearing. Id. at 3-4.

In January 2011, Debra testified at a DRO hearing and in April 2011 Bettie testified at a

DRO hearing. Secretary's Br. at 5. In December 2011, the RO issued separate Statements of the

Case (SOCs) to Bettie and Debra, continuing its denials of spousal status on separate bases. Id. at

6. Neither SOC referenced VA's procedures on simultaneously contested claims nor did VA send

the individual SOCs to both parties. Id. at 6, 16. Both timely perfected their independent appeals

to the Board the next month. Id. at 6.

In October 2012, Bettie and Debra testified at separate Board hearings on different days

before the same Board member (Board member John Crowley); however, due to technical

difficulties with VA's recording system, Debra's hearing was not properly recorded and a transcript

could not be rendered. Id. at 6.5 Therefore, Debra was offered an opportunity to appear at a second

Board hearing, and she responded indicating that she wished to appear at a second hearing.

Accordingly, in July 2013, the Board issued a single decision captioned with both appellants'

names and sent to both appellants, remanding the case to allow Debra to appear at a second Board

hearing. Id. at 7.

In September 2013, Debra testified at a second Board hearing before Board member Eric

Leboff. Id.6 In August and November 2014, the Board informed Bettie and Debra respectively of

their right to a new hearing because they participated in separate hearings before two different

Board members and the law required that the Board member who conducts a hearing on appeal

must participate in any decision made on that appeal. Id. Bettie waived her right to another Board

hearing and Debra requested a third Board hearing. Id. In January 2015, the Board issued a single

decision, captioned with both appellants' names and sent to both appellants, remanding the case to

conduct Debra's hearing, which occurred in November 2015 with Board member Crowley. Id. at

7-8; see Debra's February 2016 Board decision at 2.

On February 17, 2016, the Board issued two separate decisions, but both contained the

same Board docket number. The first decision, rendered by Board member Crowley, granted Bettie

recognition as the veteran's surviving spouse, but denied her entitlement to service connection for

the cause of the veteran's death.7 The second decision, rendered by a panel of three Board members

including Board members Crowley and Leboff, denied Debra surviving spouse status and denied

entitlement to survivor benefits as a matter of law.8 The Board provided a copy of the first decision

to Bettie only and a copy of the second decision to Debra only. Secretary's Br. at 8.

5

See BD. VET. APP. 1323123, 2013 WL 5198193 (July 19, 2013).

6

See BD. VET. APP. 1502162, 2015 WL 1194801 (Jan. 15, 2015).

7

See BD. VET. APP. 1606016, 2016 WL 1433291 (Feb. 17, 2016).

8

See BD. VET. APP. 1606067, 2016 WL 1433342 (Feb. 17, 2016).

3

B. Procedural History Following the February 2016 Board Decisions

Following the Board's issuance of two separate decisions, the appellants took different

paths to contest the portions of the separate Board decisions that were adverse to their respective

claim for survivor benefits, which resulted in three docketed appeals: #16-2104 (Bettie's appeal of

her Board decision); #16-3558 (Debra's appeal of her Board decision); and #18-0701 (Debra's

appeal of Bettie's decision). Below, the Court will describe the key events involved in all three

docketed appeals, in chronological order. For clarity purposes, the Court will also provide a

timeline of key events in an appendix.

On April 19, 2016, the Board Chairman received self-represented Debra's motion for

reconsideration as to her February 2016 decision. #16-2104 Secretary's Opposed Motion to Stay

Proceedings (July 22, 2016) Exhibit 2.

On June 16, 2016, Bettie, through counsel, filed a Notice of Appeal (NOA) with this Court

as to her Board decision, and the Court thereby opened #16-2104. U.S. Vet. App. Docket No.

16-2104.

On July 22, 2016, the Secretary filed, in #16-2104, an opposed motion to stay proceedings

pending disposition of Debra's motion for reconsideration, because the disposition "could affect

the nature of the appeal before the Court." #16-2104 Secretary's Opposed Motion to Stay

Proceedings at 2.

On August 26, 2016, the Court granted the Secretary's motion to stay proceedings in

#16-2104 and ordered the Secretary to advise the Court of the Board Chairman's decision on

Debra's motion for reconsideration. #16-2104 August 26, 2016, Court Order.

On September 9, 2016, the Board Chairman denied Debra's motion for reconsideration.

#16-2104 Secretary's Response (Sept. 26, 2016) at 3-4. The Chairman also noted that an August 8,

2016, letter had been sent in error and was superseded by the September 9 letter.

On September 26, 2016, the Secretary notified the Court of the Board Chairman's denial

of Debra's motion for reconsideration. #16-2104 Secretary's Response (Sept. 26, 2016).

On October 17, 2016, the Court lifted the stay of proceedings in #16-2104 pursuant to the

Board Chairman's denial of reconsideration and ordered Bettie to file her principal brief within 60

days. #16-2104 Court Order (Oct. 17, 2016).

Also on October 17, 2016, self-represented Debra filed an NOA with this Court as to her

February 2016 Board decision, and the Court thereby opened #16-3558. U.S. Vet. App. Docket

No. 16-3558.

On November 21, 2016, the Secretary filed a notice to the Court in #16-2104 as to the

existence of a potential party of interest in the proceeding, namely Debra. #16-2104 Secretary's

Notice to Court (Nov. 21, 2016). Concurrently, the Secretary filed a similar notice to the Court in

#16-3558 as to the existence of a potential party of interest in the proceeding, namely Bettie.

4

#16-3558 Secretary's Notice to Court (Nov. 21, 2016).9 Both notices reflected that the Secretary's

attorneys had conferred with Bettie's counsel, informing Bettie of Debra's appeal in #16-3558, and

that Debra, because she was self-represented, would be mailed a copy of each notice.

Also, on November 21, 2016, Bettie filed a notice to intervene in #16-3558 pursuant to

Rule 15(a) of the Court's Rules of Practice and Procedure (Rules), intervention "by right" as a

person who participated in the proceedings before the Board. Notice of Bettie A.P. Sapp to

Intervene (Nov. 21, 2016); see U.S. VET. APP. R. 15(a).

On December 14, 2016, the Court ordered the caption of #16-3558 revised to reflect Bettie

as intervenor. #16-3558 Court Order (Dec. 14, 2016).

On January 5, 2017, Bettie's counsel and the Secretary's counsel participated in a Rule 33

telephonic briefing conference regarding #16-2104 that resulted in a JMPR. #16-2104 JMPR

(Feb. 6, 2017). The JMPR noted that the dependency and indemnity compensation (DIC) claim at

issue on appeal was simultaneously contested and identified Debra as a "potential party of interest"

and explicitly requested that the Court not disturb the favorable determination granting Bettie

surviving spouse status. #16-2104 JMPR at 2 (citing Medrano v. Nicholson, 21 Vet.App. 165, 170

(2007), aff'd in part and dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed.

Cir. 2009); Sheets v. Nicholson, 20 Vet.App. 463, 466-67 (2006); 38 C.F.R. § 20.3(p) (2016)). The

parties agreed that vacatur and remand of "that portion" of Bettie's Board decision "that denied

entitlement to service connection for cause of the [v]eteran's death" was required because the

Board failed to provide adequate reasons or bases as to whether a medical opinion was warranted

and whether the hearing officers, including the Board member who conducted Bettie's hearing

(i.e., Board Member Crowley), properly fulfilled their duties under Bryant v. Shinseki, 23 Vet.App.

488, 496-97 (2010) (per curiam). Id. at 1, 6.

On February 17, 2017, the Clerk of the Court granted the JMPR in #16-2104, remanded

"[t]he matter identified in the JMPR," dismissed the remaining issue (recognition of Bettie as the

veteran's surviving spouse), and issued mandate. #16-2104 Court Order (Feb. 17, 2017).

On February 26, 2017, Bettie's counsel applied for a $6,794.75 Equal Access to Justice Act

(EAJA) attorney fee award, which the Secretary did not contest. #16-2104 Secretary's Response

to EAJA Application (Mar. 27, 2017).

On March 6, 2017, Debra submitted an informal brief in #16-3558. U.S. Vet. App. Docket

No. 16-3558.

On March 30, 2017, the Court granted the EAJA application, issued mandate, and closed

case #16-2104. #16-2104 Court Order (Mar. 30, 2017).

On April 19, 2017, the Secretary filed his responsive brief in #16-3558. U.S. Vet. App.

Docket No. 16-3558.

9

The Court notes that, although the Secretary filed concurrent notices in #16-2104 and #16-3558, the notices

were signed by different appellate attorneys and different Deputy Chief Counsels. Compare #16-2104 Secretary's

Notice to Court with #16-3558 Secretary's Notice to Court.

5

On May 8, 2017, an attorney filed a motion in #16-3558 to appear on behalf of Debra and,

on May 10, 2017, sought leave to file a substitute brief. Id.

On May 24, 2017, the Court granted Debra's motion for leave to file a substitute brief in

#16-3558 and ordered briefing no later than 60 days from the date of notice or 30 days after the

completion of the Rule 33 staff conference. #16-3558 Court Order (May 24, 2017).

On July 18, 2017, Debra's counsel, the Secretary's counsel, and Bettie's counsel

participated in a Rule 33 conference regarding #16-3558, which did not result in joint resolution

of the appeal. U.S. Vet. App. Docket No. 16-3558.

On October 2, 2017, Debra filed her substitute opening brief in #16-3558. Id.

On January 4, 2018, the Secretary filed, in #16-3558, an opposed motion to stay

proceedings, informing the Court that Debra and the Secretary were "currently in the process of

discussing a possible alternative disposition of this case which may be mutually agreeable."

#16-3558 Secretary's Motion to Stay at 1 (Jan. 4, 2018).

On January 5, 2018, Bettie filed, in #16-3558, a response opposing the Secretary's motion,

contending that, should the appellant (Debra) and the Secretary agree "to [an] alternative

disposition" in the absence of filing briefs, the "[i]ntervenor [(Bettie)] would be denied the

opportunity to provide her position prior to the final disposition of this appeal." #16-3558

Intervenor Response at 1-2 (Jan. 5, 2018).

On January 16, 2018, the Court denied the Secretary's motion to stay proceedings in

#16-3558 and ordered him to file his responsive brief on all parties, including a draft of any

proposed joint motion for remand (JMR) or settlement agreement. #16-3558 Court Order Denying

Stay (Jan. 16, 2018).

On February 12, 2018, Debra filed an NOA with this Court as to Bettie's February 2016

Board decision, and the Court thereby opened #18-0701. U.S. Vet. App. Docket No. 18-0701.

On February 13, 2018, the Secretary filed, in both #16-3558 and #18-0701, an opposed

motion to consolidate the two appeals "in the interest of fairness to all parties and judicial

efficiency." Secretary's Motion to Consolidate (Feb. 13, 2018).10 The Secretary indicated that,

although Debra, the appellant in both appeals, was unopposed to the motion, Bettie, who at that

time was the intervenor only in #16-3558, opposed the motion. In the motion, the Secretary

acknowledged that the Board decision on appeal in #18-0701 was already appealed by Bettie in

#16-2104, but noted that the JMPR in that docket specifically did not address the issue of surviving

spouse status as it was a favorable finding to Bettie. Id. at 3. The Secretary argued that

consolidation of #16-3558 and #18-0701 was needed to "bring the affected parties under one

docket number, [to] be consistent with the principles of due process, and [to] allow the Court to

issue one decision in this single, mutually-exclusive, simultaneously contested claim." Id.

10

The Court notes that, as of the Secretary's motion, the same lead appellate attorney was of record

representing the Secretary in both #16-3558 and #18-0701. Compare U.S. Vet. App. Docket No. 16-3558 (Oct. 3,

2017, Notice of Appearance) with U.S. Vet. App. Docket No. 18-0701 (Feb. 12, 2018, Notice of Appearance).

6

Also on February 13, 2018, the Secretary filed, in both #16-3558 and #18-0701, an opposed

motion to stay proceedings pending a decision on his motion to consolidate the appeals. Secretary's

Motion to Stay (Feb. 13, 2018).

On February 15, 2018, the Secretary filed his responsive brief in #16-3558, including a

proposed JMR. U.S. Vet. App. Docket No. 16-3558.

On February 28, 2018, Debra filed her reply brief in #16-3558, which in essence agreed

with the proposed JMR. Id.

On March 12, 2018, Bettie filed, in #16-3558, an opposition to the Secretary's motion to

consolidate and the Secretary's motion to stay proceedings. Id.

On April 16, 2018, Bettie filed her intervenor brief in #16-3558. Id.

On April 26, 2018, the Court stayed proceedings and ordered the Secretary, in both

#16-3558 and #18-0701, to file a response to the intervenor's opposition to the motion to

consolidate. U.S. Vet. App. Docket Nos. 16-3558 and 18-0701.

On May 10, 2018, the Secretary filed, in both #16-3558 and #18-0701, his response to the

intervenor's opposition to the motion to consolidate. Id.

On July 31, 2018, the Court submitted #18-0701 to a panel for decision. U.S. Vet. App.

Docket No. 18-0701.

On August 20, 2018, Bettie filed a notice to intervene in #18-0701, which the Court

permitted under Rule 15(c) of the Court's Rules, due to extraordinary circumstances. Notice of

Bettie A.P. Sapp to Intervene (Aug. 20, 2018); see #18-0701 Court Order (Sept. 20, 2018); U.S.

VET. APP. R. 15(c).

On September 5, 2018, the Court submitted #16-3558 to a panel for decision. U.S. Vet.

App. Docket No. 16-3558.

On September 20, 2018, the Court ordered the caption of #18-0701 revised to reflect Bettie

as intervenor. #18-0701 Court Order (Sept. 20, 2018).

II. SIMULTANEOUSLY CONTESTED CLAIMS

To determine whether consolidation of #16-3558 and #18-0701 is the appropriate way

forward to resolve the procedural complexities here, the Court first turns to the Secretary's

conceded error that VA failed to follow "mandatory statutory and regulatory procedures . . . . in

the adjudication and development of [Debra's] claim," which resulted in two Board decisions, one

favorable to Bettie (in part) and both unfavorable to Debra. Secretary's Br. at 10. As we explain in

more detail below, the root of the current three-appeals problem is VA's improper treatment of the

simultaneously contested claim for survivor benefits. Beginning with Bettie's and Debra's initial

applications for survivor benefits in May 2010, VA has failed to comply with the heightened notice

7

requirements and special procedures for developing and adjudicating simultaneously contested

claims. The Court holds that the notice and procedural defects here have deprived, at a minimum,

Debra of her substantial right to a meaningful opportunity to participate in the processing and

adjudication of the simultaneously contested claim, thereby fundamentally tainting the

adjudications.

A. Parties' Arguments

Debra and the Secretary argue that the Court should consolidate the appeals and vacate

both February 17, 2016, Board decisions and remand the matters because VA failed to provide the

unique protections afforded by law to claimants with simultaneously contested claims. Secretary's

Br. at 9; Appellant's Reply Br. at 1. The Secretary argues that the RO committed procedural errors

in adjudicating the simultaneously contested claim—failing to notify contesting claimants of the

other claimant's rating decision, issuing two separate SOCs rather than a single SOC, and failing

to notify contesting claimants of the content of their respective Substantive Appeals. Secretary's

Br. at 15-16. He further argues that the Board similarly procedurally erred by failing to notify both

parties of a joint hearing and the right to participate in that hearing, issuing two separate Board

decisions, and initially failing to provide Debra notice of her appellate rights to challenge Bettie's

February 2016 decision. Id. at 16-17. In supplemental briefing, the Secretary clarified that the

Board should have issued a single decision to both Debra and Bettie, addressing the issues of

recognition as the veteran's surviving spouse for purposes of establishing entitlement to survivor

benefits and entitlement to service connection for the cause of the veteran's death. Secretary's

Supplemental Memorandum of Law at 10.

As intervenor, Bettie argues that, although the Board failed to comply with the regulatory

mailing requirements for simultaneously contested claims and "it would have been ideal for the

Board to issue one decision," those errors were not prejudicial. Intervenor's Opposition to Motion

to Consolidate at 7; Intervenor's Br. at 17-21. Specifically, Bettie argues a lack of prejudice

because both Board decisions concluded that Bettie was married to the veteran at the time of his

death and therefore Debra could not be recognized as the surviving spouse; Debra has had the

opportunity to litigate the same issues, facts, and outcome in her underlying appeal from the

February 2016 Board decision; and Debra had ample notice and opportunity to contest Bettie's

February 2016 Board decision because she received the Secretary's November 21, 2016, notice to

the Court and a priority mail letter sent by Bettie's counsel to Debra, notifying her of Bettie's appeal

of her February 2016 Board decision. Intervenor's Br. at 18-19.

B. The Simultaneously Contested Claim of Bettie and Debra

Survivor benefits11 may entitle VA-recognized specified survivors of a deceased veteran

to certain monthly payments, including DIC or death pension. See 38 U.S.C. § 1310 (DIC for death

from a service-connected disability), § 1318 (DIC for certain veterans rated totally disabled),

§ 1541 (death pension for surviving spouses of veterans of a period of war); see also 38 C.F.R.

§ 3.152 (2019) (entitled "claims for death benefits"). A "claim" for DIC benefits constitutes a

11

VA uses the term "death benefits" collectively for DIC, death pension, and accrued benefits. Here, the

Court will use the term "survivor benefits" to mean the same.

8

"claim" for death pension benefits and vice versa. Isenhart v. Derwinski, 3 Vet.App. 177, 179-80

(1992); see 38 C.F.R. § 3.152.

In May 2010, Debra and Bettie each submitted a claim related to the death of the same

veteran, Donald Sapp. See Secretary's Br. at 3; Intervenor's Br. at 3. Because both claimants are

seeking survivor benefits based on their claimed status as the surviving spouse of the same veteran

and because there can only be one surviving spouse, see 38 U.S.C. § 101(3) (defining "surviving

spouse" as "a person" who was "the spouse" of a veteran at the time of the veteran's death);

38 C.F.R. § 3.50 (2019) (same); see also, e.g., 38 U.S.C. § 103(a); 38 C.F.R. § 3.52 (2019), their

claims for survivor benefits are simultaneously contested. See 38 C.F.R. § 20.3(l) (2019) (defining

a simultaneously contested claim as including "the situation in which the allowance of one claim

results in the disallowance of another claim involving the same benefit"); see also Mason v.

Shinseki, 743 F.3d 1370, 1374 (Fed. Cir. 2014) ("It seems quite natural to refer to claims as

'simultaneously contested' if the allowance of one prevents the allowance of another."); 38 C.F.R.

§ 20.3(p) (2018).12

C. Heightened Procedural Requirements for Simultaneously Contested Claims13

VA claimants are entitled to a fair adjudicative process that includes certain rights and

procedural safeguards. See, e.g., Thurber v. Brown, 5 Vet.App. 119, 123 (1993) ("The entire thrust

of [ ] VA's nonadversarial claims system is predicated upon a structure which provides for notice

and an opportunity to be heard at virtually every step in the process."); Bernard v. Brown,

4 Vet.App. 384, 392-94 (1993) (holding that VA claimants must be provided the "full benefits

of . . . procedural safeguards" afforded by statutory and regulatory provisions establishing

"extensive procedural requirements to ensure a claimant's rights to full and fair assistance and

adjudication in the VA claims adjudication process"). In simultaneously contested claims,

however, there are heightened procedural requirements to ensure that all interested parties receive

a fair adjudicative process. In these cases, statutory and regulatory safeguards impose heightened

notice requirements designed to protect each claimant's procedural due process rights by providing

claimants a meaningful opportunity to participate in the adjudication of the simultaneously

contested claim and ensuring the essential fairness of the adjudication of a simultaneously

12

Effective February 19, 2019, § 20.3(p) was redesignated § 20.3(l). See infra n.13.

13

The Veterans Appeals Improvement and Modernization Act of 2017 (VAIMA) overhauled the process for

appealing VA benefits decisions, including by creating different types of agency review and allowing claimants to

select among those options. See Pub. L. No. 115-55, 131 Stat. 1105, § 2 (Aug. 23, 2017). Through VAIMA, Congress

amended several statutory provisions relevant to this case, including 38 U.S.C. §§ 5103, 5104, 7105, and 7105A. In

addition, as part of the implementation of VAIMA, VA amended, added, and redesignated several pertinent

regulations, including renaming Part 19 of title 38 of the Code of Federal Regulations as "Board of Veterans' Appeals:

Legacy Appeals Regulations," renaming subpart E of Part 20 "Appeal in Simultaneously Contested Claims," and

renaming Subpart F of Part 20 "Legacy Appeal in Simultaneously Contested Claims." VA Claims and Appeals

Modernization, 84 Fed. Reg. 138, 177-84 (Jan. 18, 2019).

Although VAIMA was enacted in August 2017, the statutory amendments and the Secretary's regulations

implementing VAIMA did not become effective until February 19, 2019. See VA Claims and Appeals Modernization,

84 Fed. Reg. at 170; VA Claims and Appeals Modernization, 84 Fed. Reg. 2449, 2449 (Feb. 7, 2019) (notification of

effective date). However, because the Court reviews the law as it existed at the time of the Board decision, it will use

pre-VAIMA statutes and regulations in its analysis and citations.

9

contested claim. As conceded by the parties and explained below, these special procedural

requirements were not followed here.

1. Notice Requirements

We begin with the constitutional and statutory requirement of notice. Entitlement to

veterans disability benefits is a property interest protected by the Due Process Clause. Cushman v.

Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009). An essential principle of procedural due process

is that the deprivation of a protected interest must "be preceded by notice and opportunity for

hearing appropriate to the nature of the case." Mullane v. Cent. Hanover Bank & Trust Co.,

339 U.S. 306, 313 (1950). This constitutional right to be heard has "little value 'unless one is

informed that the matter is pending and can choose for [her]self whether to appear or default,

acquiesce or contest.'" Noah v. McDonald, 28 Vet.App. 120, 129-30 (2016) (quoting Mullane,

339 U.S. at 313).

To facilitate a claimant's meaningful participation in the adjudication of a claim, Congress

has imposed on VA several notice requirements: notice of required information and evidence to

substantiate a claim, timely notice of a decision affecting the provision of benefits, and notice of

the right to and an explanation of the procedure for how to appeal such decision. 38 U.S.C.

§§ 5103, 5104(a). To ensure the same meaningful participation when an adjudication involves

multiple interested parties, Congress imposed special notice requirements for simultaneously

contested claims. 38 U.S.C. § 7105A(a).

The statute governing simultaneously contested claims provides that, in such a claim, VA

"shall promptly notify all parties in interest at the last known address" of an adverse action.

38 U.S.C. § 7105A(a). In a simultaneously contested claim, VA regulation provides that "[a]ll

interested parties will be specifically notified of the action taken by the agency of original

jurisdiction," 38 C.F.R. § 19.100 (2018), including furnishing to all interested parties and their

representatives a copy of the SOC, 38 C.F.R. § 19.101 (2018). See 38 U.S.C. § 7105A. The SOC

"will contain only information which directly affects the payment or potential payment of the

benefit(s) which is (are) the subject of that contested claim." 38 C.F.R. § 19.101 (2018). And the

content of a Board decision involving a simultaneously contested claim "will be limited to

information that directly affects the issues involved in the contested claim." 38 C.F.R. § 19.8

(2018).

Several provisions also address the notification of the right to appeal. See Thurber,

5 Vet.App. at 123 ("The VA . . . RO[] must provide notice of the right to appeal in regular and in

simultaneously contested claims."). In simultaneously contested claims, "[a]ll interested parties

will be specifically notified . . . of the right and time limit for initiation of an appeal." 38 C.F.R.

§ 19.100 (2018), and "any claimant" may file an NOD or Substantive Appeal within the allotted

time limits, 38 C.F.R. § 20.500 (2018). The time limit for a claimant to appeal a simultaneously

contested claim is accelerated as compared to an uncontested claim. 38 U.S.C. § 7105(b)(1)(A)

(providing for a one-year time limit to submit an NOD "[e]xcept in the case of simultaneously

contested claims"). If a claim for entitlement to a specific benefit is contested by another party, a

claimant has 60 days from the date of mailing of notification of the determination to file an NOD

10

and 30 days from the date of mailing of the SOC to file a Substantive Appeal. 38 U.S.C.

§ 7105A(a); 38 C.F.R. § 20.501(a), (b) (2018).

2. Meaningful Opportunity to Participate

A fundamental role at the very essence of the nonadversarial, pro-claimant VA adjudication

system is "affording a claimant a meaningful opportunity to participate effectively in the

processing of his or her claim." Overton v. Nicholson, 20 Vet.App. 427, 435 (2006). To do so, in

addition to the statutory and regulatory provisions created to ensure that all interested parties

receive adequate notice of the proceedings in a simultaneously contested claim, similar provisions

also provide procedural safeguards designed to ensure that each claimant is afforded that

substantive right. Just like any other VA benefits claimant, interested parties in a simultaneously

contested claim are afforded the opportunity to submit argument and the opportunity to participate

in a hearing.

Claimants must be afforded the opportunity to respond to the arguments of other parties in

a simultaneously contested claim. To facilitate a contesting claimant's ability to respond, VA must

furnish to other parties in interest the content of the other party's Substantive Appeal. 38 U.S.C.

§ 7105A(b); 38 C.F.R. § 19.102 (2018). Then, VA must allow an interested party 30 days from

the date the content of the Substantive Appeal was furnished to submit a response. 38 U.S.C.

§ 7105A(b); 38 C.F.R. § 20.502 (2018).

Claimants for VA benefits are entitled to a hearing on their claims at both the RO and the

Board. 38 C.F.R. §§ 3.103(c) (2018), 20.700(a) (2018). The same is true for "[a]ll interested

parties" in a simultaneously contested claim. 38 C.F.R. § 19.100 (2018). If a hearing is scheduled

for any party to a simultaneously contested claim, the other contesting claimants "will be notified

and afforded an opportunity to be present" at the same hearing. 38 C.F.R. § 20.713(a) (2018). The

hearing should proceed by first allowing the appellant to present opening testimony and argument,

then any contesting party who wishes may present testimony and argument, followed by the

appellant's opportunity to present rebuttal. Id. As usual during Board hearings, cross-examination

is prohibited. Id.; see 38 C.F.R. § 20.700(c) (2018).

D. Application of Simultaneously Contested Claim Rules Here

To protect the parties' procedural due process rights in a simultaneously contested claim,

several safeguards apply. The Board's determination whether the proper procedures were followed

in a simultaneously contested claim is a factual determination subject to the "clearly erroneous"

standard of review. 38 U.S.C. § 7261(a)(4); accord Garrison v. Nicholson, 494 F.3d 1366, 1370

(Fed. Cir. 2007) (noting that Board determinations regarding compliance with VA's duty to notify

are reviewed under the "clearly erroneous" standard). "A factual finding 'is "clearly erroneous"

when although there is evidence to support it, the reviewing court on the entire evidence is left

with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski,

2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

Moreover, when the Court determines that the Board failed to follow applicable regulatory

provisions, it shall hold unlawful and set aside the Board's decision as "not in accordance with

law." 38 U.S.C. § 7261(a)(3)(A); accord Kitchens v. Brown, 7 Vet.App. 320, 325 (1995) (noting

11

that, where the Board fails to observe applicable law and regulation in reduction cases, the Court

will set it aside as "not in accordance with law").

The Board, in both decisions on appeal, determined that the contested claims procedures

were substantially complied with because the RO provided both parties "notice of the actions

taken, . . . includ[ing] the issuance of statements of the case." Bettie's February 2016 Board

decision at 15; Debra's February 2016 Board decision at 12. However, as the Secretary concedes,

VA mishandled the processing and adjudication of this simultaneously contested claim from the

initial May 2010 filing of two competing applications for the same VA benefit. See Secretary's Br.

at 15 ("[T]he procedures for adjudicating simultaneously contested claims were not followed[.]").

Of the abundant notice and procedural requirements that VA affords to parties to a simultaneously

contested claim, neither Debra nor Bettie were provided any. Below, the Court provides a

chronological comparison between the undisputed actions VA took and the actions it should have

taken, that led to the three appeals at issue here, two current appeals and one in which mandate

issued in February 2017.

In May 2010, Bettie and Debra each filed an application for entitlement to survivor benefits

as the veteran's surviving spouse and two months later the RO issued two separate decisions,

individually denying each appellant recognition as the veteran's surviving spouse. Secretary's Br.

at 3, 5. The Secretary states that Debra was "not notified of the action taken on [Bettie's] claim."

Secretary's Br. at 15. The RO should have issued a single decision addressing both claims and

promptly mailed it to both appellants, with notice that an NOD must be filed within 60 days. See

38 U.S.C. § 7105A.14

In January 2011, Debra testified at a DRO hearing by herself. Secretary's Br. at 5. Contrary

to 38 C.F.R. § 20.713(a), it is undisputed that Bettie did not receive notification that such a hearing

was to take place and that she was not afforded an opportunity to present testimony at that hearing.

38 C.F.R. § 20.713(a) (2018). Similarly, in April 2011, Bettie testified at a DRO hearing by herself

and there is no dispute that Debra did not receive notification that such a hearing was to take place

and that she was not afforded an opportunity to present testimony at that hearing. Id.

The RO then issued two separate SOCs. Neither SOC referenced VA's procedures on

simultaneously contested claims. Secretary's Br. at 5-6. The RO should have issued a single SOC

addressing both claims, containing information that directly affected the potential payment of the

survivor benefits claims. See 38 C.F.R. § 19.101 (2018); see also Secretary's Br. at 16.

In January 2012, Debra and Bettie submitted separate VA Form 9s (Substantive Appeals)

and both requested Board hearings. Secretary's Br. at 6. However, no party contends that the

content of the respective Substantive Appeals was furnished to the other party. See 38 C.F.R.

§ 19.102 (2018). Nor were they given an opportunity to respond to the competing appeal of a claim

for the same benefit. See 38 C.F.R. § 20.502 (2018); see also Secretary's Br. at 16.

14

The Court notes that post-VAIMA the same notice and time-to-respond requirements apply to NODs. See

38 U.S.C. § 7105A(b)(1) (2019).

12

The Board conducted four independent hearings, three with Debra and one with Bettie. See

Secretary's Br. at 6-8. Just like the RO's error at the DRO hearing, no party contends that as to any

of those hearings the other party was informed of that hearing or notified of her right to participate.

See 38 C.F.R. § 20.713 (2018); see also Secretary's Br. at 16-17.

As noted earlier, the Board issued two separate and different decisions on the same date,

one for Bettie and one for Debra, and mailed each appellant only her own copy of her decision.

Secretary's Br. at 8. All parties agree that, pursuant to 38 C.F.R. § 19.8, the Board should have

issued a single decision addressing the simultaneously contested claim for survivor benefits as the

veteran's surviving spouse. Intervenor's Opposition to Motion to Consolidate at 7; Secretary's

Supplemental Memorandum at 10; Appellant's Reply Br. at 1.

The Court agrees with the parties and concludes that the Board clearly erred in its

determination that VA "substantially complied with" the heightened procedural safeguards

involved in adjudicating a simultaneously contested claim. Bettie's February 2016 Board decision

at 15; Debra's February 2016 Board decision at 12. Contrary to the Board's finding, it is undisputed

that VA committed multiple errors in the adjudication of this simultaneously contested claim for

survivor benefits.

Most evident of these errors is the Board's failure to issue a single decision and instead

issuing separate decisions addressing the simultaneously contested claim without properly

notifying each claimant of the other's decision. As discussed above, § 19.8 provides that "[t]he

content of the Board's decision . . . in appeals involving a simultaneously contested claim will be

limited to information that directly affects the issues involved in the contested claim." However,

"[a]ppellate issues that do not involve all of the contesting parties will be addressed in one or more

separate written decisions . . . that will be furnished only to the appellants concerned." 38 C.F.R.

§ 19.8 (2018). Taken together, the regulation clearly provides that issues that directly affect all

parties in a contested claim must be addressed in a single "decision" sent to all involved parties.

Id. In contrast, the regulation instructs that issues unique to each individual appellant must be

addressed in separate decisions sent only to the individual appellant concerned. Id. Based on a

plain reading of § 19.8, the Court agrees with the parties that the Board's determination of Mr.

Sapp's surviving spouse—a determination that involves both Bettie and Debra and directly affects

entitlement to survivor benefits—should have been addressed in a single decision. See Petitti v.

McDonald, 27 Vet.App. 415, 422 (2015) ("Regulatory interpretation begins with the language of

the regulation, the plain meaning of which is derived from its text and its structure."); Tropf v.

Nicholson, 20 Vet.App. 317, 320 (2006) ("[I]f the meaning of the regulation is clear from its

language, then that is 'the end of the matter.'" (quoting Brown v. Gardner, 513 U.S. 115, 120

(1994))); see also Tropf, 20 Vet.App. at 320 (The Court reviews the interpretation of regulations

de novo.).

A possible explanation for the Board's issuance of separate decisions to each appellant, as

advanced by Bettie, is the disparate number of Board members who heard testimony from each

appellant. See Intervenor's Opposition to Motion to Consolidate at 2, 4. As noted above, Bettie

testified at one Board hearing before Board member Crowley, but Debra testified at three Board

hearings, two before Board member Crowley and one before Board member Leboff. As the Board

noted in Debra's February 2016 decision, at that time all Board members who conducted hearings

13

in a case must participate in the adjudication of that case. Debra's February 2016 Board decision

at 2-3 (citing 38 U.S.C. § 7107(c) (effective to Feb. 18, 2019), 38 C.F.R. § 20.707 (2015), and

Arneson v. Shinseki, 24 Vet.App. 379 (2011)). Because Debra testified before two different Board

members and because a Board panel can consist of no less than three members, 38 U.S.C.

§ 7102(a), it was required that Debra's claim for survivor benefits be adjudicated by three Board

members. However, in the Board's view presumably, a panel of Board members was not needed

to decide Bettie's claim for survivor benefits because she provided testimony before only a single

Board member.

However, this explanation for the Board's issuance of separate decisions serves only to

underscore the importance of ensuring that proper procedural safeguards in simultaneously

contested claims are followed from the outset. Bettie and Debra both claimed survivor benefits

based on the service of the same veteran. Had VA properly developed and adjudicated entitlement

to survivor benefits not as separate claims but as a simultaneously contested claim in accordance

with the statutory and regulatory procedural safeguards, there would have been no need to issue

separate decisions based on the disparate number of Board members involved. That the Board

issued separate decisions contrary to § 19.8 is prima facie evidence that the Board's finding

regarding compliance with the simultaneously contested claim procedures is clearly erroneous.

E. Prejudicial Effect of VA's Errors

Having determined that VA committed numerous errors, the Court turns next to whether

these errors were prejudicial. In reviewing a Board decision, this Court must "take due account of

the rule of prejudicial error." 38 U.S.C. § 7261(b)(2); see Shinseki v. Sanders, 556 U.S. 396, 406-

07 (2009) (holding that the "same kind of 'harmless-error' rule that courts ordinarily apply in civil

cases" applies to the Court's review of Board decisions); Simmons v. Wilkie, 30 Vet.App. 267, 279-

80 (2018). An error is prejudicial when it "affects a substantive right that a statutory or regulatory

provision was designed to protect" and "affects the essential fairness of the adjudication." Overton,

20 Vet.App. at 434-35 (citing McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553

(1984)). An appellant generally bears the burden of demonstrating the prejudicial effect of an error.

Sanders, 556 U.S. at 409-11; Simmons, 30 Vet.App. at 280.

In her supplemental memorandum of law, Debra addressed the effect of the Board's

issuance of separate decisions and the resultant three appellate dockets. She argued that the Board's

error directly affected her ability to appeal the adverse factual findings and conclusions of law in

#16-2104 because the existence of separate Board decisions necessarily meant that the Court

would only be able to address issues unfavorable to Bettie in adjudicating #16-2104, without

consideration of issues unfavorable to Debra as an intervenor. Appellant's Supplemental

Memorandum of Law at 1-2, 6-8. Moreover, she notes that, without the Court recalling mandate,

the Board's failure to issue a single decision and its failure to properly notify her of Bettie's

decision, which contained a factual finding adverse to Debra, prevented her from a full and fair

opportunity to litigate the contested issue. Id. at 6. She argues that, without proper notice of her

appellate rights as to Bettie's Board decision, she has been deprived an opportunity to be heard. Id.

at 8.

14

The Secretary concedes that VA's errors resulted in prejudicial error and focuses on the

entire adjudicative process. Secretary's Br. at 15-18. The Secretary urges that, because Debra "was

not provided the unique protections afforded by law to claimants in simultaneously contested

claims," "the Court should remand the Board's decision[s] for readjudication and development of

this case, consistent with the legal provisions pertaining to simultaneously contested claims." Id.

at 18; see Secretary's February 4, 2019, Response.

On the other hand, Bettie argues that neither Debra nor the Secretary has demonstrated

prejudicial error because Debra had a meaningful opportunity to participate in the adjudicative

process. Intervenor's Br. at 17. She highlights that Debra submitted evidence on her behalf and

participated in four hearings before VA. Id. In addition, she notes that Debra was notified of her

ability to intervene in #16-2104 here at the Court, but did not intervene or otherwise participate in

Bettie's Court appeal. Id. at 19-21. Finally, she argues that, although the Board issued separate

decisions, it reached the same conclusion based on the same evidence, that Bettie was legally

married to Mr. Sapp at the time of his death. Id. at 18. Therefore, Debra could not be recognized

as the surviving spouse as a matter of law. Id. at 21.

The Court agrees with Debra and the Secretary and finds that the procedural errors and

notice defects addressed above affected, at a minimum, Debra's substantive right of adequate

notice and proceedings that several statutory and regulatory provisions were designed to protect.15

See Overton, 20 Vet.App. at 434-35. At several crucial periods in the separate adjudications of this

simultaneously contested claim, VA failed to provide Debra adequate notice of the adjudication of

Bettie's claim. By failing to provide adequate notice of Bettie's claim, Debra was deprived of

participating in DRO and Board hearings with Bettie regarding the simultaneously contested claim

and VA deprived Debra of providing any response to arguments advanced by Bettie. See generally

Cook v. Snyder, 28 Vet.App. 330, 336-37 (2017) (describing "the important procedural nature and

the critical role of Board hearings in the VA benefits system"), aff'd sub nom. Cook v. Wilkie,

908 F.3d 813 (Fed. Cir. 2018); Arneson, 24 Vet.App. at 382-83. Although Bettie argues that Debra

had ample opportunity to submit evidence and argument on her behalf, without notice of the

evidence and arguments being proffered by Bettie, Debra did not have the opportunity to properly

respond in support of her own claim. See generally Vazquez-Flores v. Shinseki, 24 Vet.App. 94,

105 (2010) (noting that a lack of notice regarding "a key element needed to substantiate the claim"

deprives the claimant of a meaningful opportunity to participate in the processing of her claim);

Overton, 20 Vet.App. at 434-36 (holding that failure to provide claimant notice of what

information was necessary to substantiate the claim "has the natural effect of producing prejudice"

and generally would affect the fundamental fairness of the adjudication).

In addition, the Board's failure to follow the provisions that govern simultaneously

contested claims resulted in disparate adjudication of the two claims. Namely, because the Board

failed to provide a single hearing both appellants could attend, Bettie and Debra appeared at

separate Board hearings and ultimately Debra testified at three Board hearings. Although the same

15

The Court's prejudicial error analysis is focused on prejudice to Debra as the Board's determination

regarding surviving spouse status was unfavorable to her. Although the Board's determination was favorable to Bettie,

the Court notes that the Board's errors affected the adjudicative process as a whole and, therefore, similarly deprived

Bettie of adequate notice and a meaningful opportunity to participate. However, the Board's recognition of Bettie as

the veteran's surviving spouse mitigates against prejudice to her.

15

Board member (Crowley) conducted three of the four Board hearings, as a result of the procedural

error, Bettie's claim was adjudicated by a single Board member while Debra's claim was

adjudicated by a three-member panel.

The provisions that govern the adjudication of simultaneously contested claims are

designed such that the same adjudicator, after gathering testimony and evidence from both

contesting claimants, including responses to arguments raised by the opposing claimant, renders a

decision in favor of one claimant over the competing interest of the other. The procedural errors

evidenced above make it clear that, despite VA acknowledging a simultaneously contested claim,

the decisions on the claim were rendered neither by the same adjudicators nor following the

presentation of responsive testimony or evidence. In sum, the Court concludes that VA's errors

throughout the adjudication of the simultaneously contested claim, and, in particular, the Board's

failure to follow the proper notice and hearing provisions, affected the essential fairness of the

adjudications, including the fairness of the process used to reach the underlying Board decisions

in this case.

In addition, the Board's separate adjudications of the simultaneously contested claim

directly led to the three separate docketed appeals, all of which are at different stages of the

appellate process. Because the Board did not adjudicate the simultaneously contested claim in a

single document and otherwise did not provide adequate notice to each claimant of the other

claimant's Board decision, the appellants were able to take separate independent paths following

receipt of their adverse decisions. Debra, while self-represented, filed a motion for reconsideration

with the Board Chairman contesting her status as surviving spouse, while Bettie, through counsel,

filed an NOA and secured a JMPR regarding the issue of service connection for the cause of the

veteran's death. The fact that service connection for the cause of the veteran's death is pending

before VA on behalf of Bettie while the appeal of surviving spouse status is still pending on behalf

of Debra at this Court demonstrates the prejudicial effect of the disparate proceedings down below

that allowed the appeals at this Court to proceed on separate tracks.

Finally, although Bettie argues that, because Debra cannot satisfy the four requirements for

a deemed valid marriage, see 38 U.S.C. § 103(a), she could never prevail as a matter of law,

Intervenor's Brief at 7, 17, 21, the Court cannot speculate on the outcome had Debra received

proper procedures as provided by the applicable law and regulations. See Arneson, 24 Vet.App. at

389 (finding prejudice in the Board's failure to provide an opportunity for a hearing before all

adjudicators because such error "could have altered" the Board's outcome); Bryant, 23 Vet.App.

at 499 (finding a hearing officer's failure to fully explain the material issues and to suggest

evidence that may have been overlooked was prejudicial because it created a lost opportunity for

the claimant to try and submit needed evidence before the claim was adjudicated). For example,

in reaching its determination that Bettie was the veteran's surviving spouse, the Board noted an

absence of evidence contrary to Bettie's assertions that the break in continuity of cohabitation was

due to the misconduct of the veteran and that divorce proceedings between the veteran and Bettie

were never finalized. Bettie's Board decision at 7-8; see 38 C.F.R. § 3.53 (2019); 38 C.F.R.

§ 3.205(b) (2019) (both establishing that certain evidence will be sufficient to establish a finding

of fact in the absence of conflicting information). However, because VA failed to provide Debra

the content of Bettie's Substantive Appeal and Debra did not have the opportunity to participate in

joint DRO and Board hearings, Debra lost the opportunity to respond to the arguments advanced

16

by Bettie in this simultaneously contested claim. The Court will not speculate on the outcome had

VA followed the proper procedures for adjudicating this simultaneously contested claim from the

outset.

III. REMEDIES

Having established prejudicial error as to the February 17, 2016, Board decisions, the Court

must now determine the appropriate remedy.

On January 3, 2019, the Court notified the parties that it was inclined to recall mandate as

to #16-2104 and consolidate all three appeals to allow for a single resolution. We ordered the

parties to show cause why we should not vacate both February 17, 2016, Board decisions and

remand the matters. Debra and the Secretary agreed with the Court's proposed actions. Appellant's

February 4, 2019, Response; Secretary's February 4, 2019, Response. Bettie avers that the Court

should decide the appeals based on the record and pleadings in #16-3558 after allowing Debra the

opportunity to submit a supplemental pleading to address Bettie's February 2016 Board decision.

Intervenor's February 4, 2019, Response at 2. Bettie contends that her proposed remedy best

preserves the Court's resources because the matter has already been exhaustively briefed by all

parties and remand for a new Board decision would result in a new appeal on the same facts and

contentions currently on appeal. Id. The Court is unpersuaded by her arguments.

A. Mandate in #16-2104 is Sua Sponte Recalled

First we examine Bettie's appeal of her February 2016 decision, which is #16-2104. On

February 17, 2017, the Court granted a JMPR vacating the issue of entitlement to service

connection for the cause of the veteran's death, remanding for the Board to provide adequate

reasons or bases as to whether a medical opinion was warranted and the hearing officers fulfilled

their duties under Bryant, 23 Vet.App. at 496-97, and dismissing the remaining issue of her status

as surviving spouse. The Court simultaneously issued mandate and, on March 30, 2017, granted

an EAJA application for $6,794.75 in attorney fees, issued EAJA mandate, and closed the case.

Mandate finalizes and effectuates the Court's judgment on a matter. See 38 U.S.C. § 7291;

U.S. VET. APP. R. 41(a). Once a party has had a full and fair opportunity to litigate, a court's

judgment on the matter is final and final judgment forecloses successive litigation of the same

claim. See Taylor v. Sturgell, 553 U.S. 880, 892 (2008). Nevertheless, a court has the power to

recall mandate where necessary to protect the integrity of its own processes. Briggs v.

Pennsylvania R.R. Co., 334 U.S. 304, 306 (1948); Serra v. Nicholson, 19 Vet.App. 268, 271

(2005). But "the sparing use of th[is] power demonstrates [that] it is one of last resort, to be held

in reserve against grave, unforeseen contingencies." Calderon v. Thompson, 523 U.S. 538, 550

(1998); see Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 114 F.3d 1513, 1522

(10th Cir. 1997) ("The limited nature of [mandate recall] power is a reflection of the importance

of finality: once parties are afforded a full and fair opportunity to litigate, the controversy must

come to an end and courts must be able to clear their dockets of decided cases.").

The exercise of the power to recall mandate is within the discretion of the Court; however,

because recalling mandate is an extraordinary remedy, "such discretion may be exercised only for

17

good cause or to prevent injustice, and only when 'unusual circumstances exist sufficient to justify

modification or recall of a prior judgment.'" McNaron v. Brown, 10 Vet.App. 61, 63 (1997)

(quoting Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir. 1988)), aff'd sub nom. McNaron v.

Gober, 121 F.3d 728 (Fed. Cir. 1997) (per curiam); see Smith v. Shinseki, 26 Vet.App. 406, 410

(2014) (per curiam order) (noting that "recall of mandate required the parties to show both good

cause and unusual circumstances").

In Serra and McNaron, we noted several circumstances that our sister courts had found

exceptional such that recall of mandate was warranted to protect the integrity of a court's own

processes. Serra, 19 Vet.App. at 272 (compiling cases); McNaron, 10 Vet.App. at 63 (compiling

the same cases). Those circumstances included judgment obtained by fraud, correction of clerical

mistakes and judicial oversights, and where a petitioner had died prior to the issuance of mandate.

Serra, 19 Vet.App. at 272; McNaron, 10 Vet.App. at 63; see Sagnella v. Principi, 15 Vet.App.

242, 245 (2001) (per curiam order). In McNaron, we additionally noted that other courts have also

recalled mandate "based upon a subsequent change in the law, but only in 'significant instances

where appellate courts have found special reason for disturbing repose and finality in the interest

of justice.'" 10 Vet.App. at 63 (quoting Greater Boston Television Corp. v. FCC, 463 F.2d 268,

278 (D.C. Cir. 1971)); see McNaron v. West, 12 Vet.App. 334, 336 (1999) (per curiam order)

(citing same); see also Snyder v. Gober, 14 Vet.App. 146, 147 (2000) (per curiam order) (recalling

mandate when a subsequent en banc decision represented a "pivotal departure" from the existing

law that served as the basis for the underlying decision).

The Court finds this simultaneously contested claim for survivor benefits and the prejudice

to Debra due to the underlying procedural defects present good cause and the type of exceptional

or extraordinary circumstance necessary to override the finality of an appeal. See Briggs, 334 U.S.

at 304; Smith, 26 Vet.App. at 410. The Board's procedural and notice errors left Debra without a

meaningful opportunity to be heard at the Court during the pendency of this appeal. See Calderon,

523 U.S. at 550. Bettie urges the Court not to recall mandate, arguing that Debra had the

opportunity to intervene in #16-2104 to advocate on her behalf and chose not to. However, that

Debra had the opportunity to intervene does not negate the injustice caused by the undisputed

procedural errors committed by VA during the development of the simultaneously contested claim,

notably, VA's failure to afford each of the contested claimants notice of and the opportunity to

address arguments and evidence submitted by the other claimant down below. And, as indicated

below, because those errors allowed Debra and Bettie to pursue separate paths to the Court, recall

of mandate is necessary to ensure that there is only one decision that adjudicates which appellant

is the surviving spouse of Donald Sapp.

Furthermore, recalling mandate will rejoin the issue of surviving spouse status with cause

of death as part of the single simultaneously contested claim for survivor benefits and prevent any

potential development or adjudication of the separate elements because of the Board's improper

bifurcation of the underlying contested claim. See Henderson v. West, 12 Vet.App. 11, 20 (1998)

("[W]here a decision on one issue would have a significant impact upon another, and that impact

in turn could render any review by this Court of the decision on the other [issue] meaningless and

a waste of judicial resources, the two [issues] are inextricably intertwined." (internal quotations

and alternations omitted)). Accordingly, the Court will recall mandate and withdraw the February

18

17, 2017, order granting the JMPR in #16-2104 that remanded the matter of entitlement to service

connection for the cause of the veteran's death and dismissed the appeal as to the remaining issue.

A consequence of recalling mandate and withdrawing the Court's order is that Bettie is no

longer a prevailing party in #16-2104. To be eligible for EAJA fees and expenses, an appellant

must be a "prevailing party" and an EAJA application is "completely dependent upon the fate of

the underlying case." Serra, 19 Vet.App. at 274. "[U]pon the recall of . . . mandate and withdrawal

of the Court's order in a particular case, there is no longer a decision of the Court in which the

appellant could be said to be a prevailing party." Id. (citing Kawad v. West, 12 Vet.App. 61 (1998)

(per curiam order)). As indicated above, the order must be withdrawn, and therefore, Bettie cannot

be said to have been a prevailing party in #16-2104. Thus, the Court concludes that the EAJA

mandate must also be recalled and the corresponding order withdrawn in #16-2104.

B. Consolidation of Appeals to Protect the Integrity of the Court's Process

Next, the Court turns to the issue of consolidation. The Secretary argues that the

consolidation of #16-3558 and #18-0701 is necessary for reasons of judicial efficiency and fairness

to both claimants. Secretary's Motion to Consolidate at 4. Specifically, he contends that

consolidation "would bring the affected parties under one docket number, would be consistent with

the principles of due process, and would allow the Court to issue one decision in this single,

mutually-exclusive, simultaneously contested claim now on appeal." Id. at 3. The Secretary

acknowledged that Bettie appealed her own Board decision in #16-2104, the same decision

appealed by Debra in #18-0701, but indicated that surviving spouse status was not subject to the

JMPR in #16-2104. Id. (noting that the JMPR "specifically requested that the Court 'not disturb

the Board's favorable determination' regarding recognition as the surviving spouse").

In opposition, Bettie argues that, although consolidation of the appeals "would technically

correct a notice defect," it would prejudice her and "provide no benefit to" Debra. Response in

Opposition to Motion to Consolidate at 1, 7. She asserts that Debra had ample prior notice and

opportunity to contest Bettie's decision in #16-2104 and that consolidation would deprive Bettie

of expeditious resolution of her claim. Id. at 6, 8; see id. at 3 (asserting that "the fundamental issue

of whether [Bettie] was the legal spouse of the [v]eteran has already been subject to repeated

litigation").

In response to Bettie's opposition, the Secretary argued that surviving spouse status was

not part of the appeal in #16-2104 because the Board made a favorable finding in that regard as it

applies to Bettie and, therefore, that issue was not subject to the #16-2104 JMPR. Secretary's

Response to the Court's April 26, 2018, Order at 4. In addition, he argues that, although Debra was

provided notice of Bettie's appeal in #16-2104 and an opportunity to intervene in that appeal,

because of the Board's favorable finding recognizing Bettie as the surviving spouse, had Debra

intervened, she would not have been able to contest the Board's finding, even though it was

unfavorable to her. Id. at 6-7.

Although Debra is unopposed to the Secretary's motion to consolidate and did not respond

to Bettie's response, she advances similar arguments regarding #16-2104, namely that the Court

did not have jurisdiction in #16-2104 to address the propriety of the Board's determination that

19

Bettie was the veteran's surviving spouse. Appellant's Supplemental Memorandum of Law at 1-5.

She thus contends that, even if she had intervened in #16-2104, she would not have been able to

contest the Board's finding. Id. at 1-2.

The Court finds Bettie's arguments unpersuasive. Consolidation of appeals in this Court is

governed by Rule 3(e) of the Court's Rules. U.S. VET. APP. R. 3(e). Pursuant to that Rule,

"[a]ppeals may be consolidated by order of the Court on its own initiative or on a party's motion."

Id. We further note that the Federal Rules of Civil Procedure provide that, when "actions . . .

involve a common question of law or fact, the court may . . . consolidate the actions." FED. R. CIV.

P. 42(a); see Demery v. Wilkie, 30 Vet.App. 430, 442 (2019) (per curiam order) (looking to the

Federal Rules of Civil Procedure for guidance). This Court has consolidated appeals on its own

initiative to address specific questions of fact or law. See, e.g., Bove v. Shinseki, 25 Vet.App. 136,

137 (2011) (per curiam order) (sua sponte consolidating four appeals "for the sole purpose of

addressing whether the 120-day filing period is subject to equitable tolling"); Young v. Shinseki,

22 Vet.App. 461, 464 (2009) (noting that the Court had ordered the consolidation of two pending

appeals stemming from two different Board decisions on the same claim for disability benefits);

Jones v. Derwinski, 2 Vet.App. 7, 7 (1991) (en banc order) (sua sponte consolidating appeals "for

all purposes").

As noted above, the Secretary and Debra support consolidation of #16-3558 and #18-0701

to "allow the Court to issue one decision in this single, mutually-exclusive, simultaneously

contested claim now on appeal." Secretary's Motion to Consolidate at 3-4; see Appellant's Reply

Br. in #16-3558 at 1. Both argue, however, that the additional consolidation of #16-2104 is not

needed because surviving spouse status was not addressed in #16-2104. Bettie opposed

consolidation in any combination because the propriety of the Board's determination recognizing

her as the veteran's surviving spouse has already been litigated. Response in Opposition to Motion

to Consolidate at 3.

All parties overlook that the simultaneously contested claim is not the narrow question of

who is properly recognized as the surviving spouse, but instead is a claim for survivor benefits.

Moreover, because the Secretary's motion to consolidate #16-3558 and #18-0701 does not address

the effect of the appeal in #16-2104—namely, the Court order granting the JMPR that did not

disturb the Board's finding recognizing Bettie as the veteran's surviving spouse—the Court

concludes that the Secretary's motion must be denied. See U.S. VET. APP. R. 3(e).

The Secretary is correct that the Court should issue one decision in this simultaneously

contested claim for survivor benefits—and given that fact, we must withdraw mandate in #16-2104

so that all appeals regarding the issue of which appellant is the surviving spouse of Donald Sapp

for VA benefit purposes may be consolidated and remanded as one to the Board for the conduct

of proper notice and procedures and issuance of a single Board decision. See Overton, 20 Vet.App.

at 435 ("Any error that renders a claimant without [a] meaningful opportunity [to participate

effectively in the processing of his or her claim] must be considered prejudicial because such error

would indeed have affected the essential fairness of the adjudication."); see also 38 U.S.C.

§ 7252(a).

20

C. Recognition of Bettie as Mr. Sapp's Surviving Spouse

As noted above, the parties argued that recall of mandate in #16-2104 was not needed

because the Board's recognition of Bettie as Mr. Sapp's surviving spouse was not subject to the

JMPR because it was a favorable finding. Specifically, the Secretary noted that the parties cited to

the Court's decisions in Sheets and Medrano and expressly requested that the Court not disturb the

Board's favorable determination regarding recognition of Bettie as the surviving spouse.

Secretary's Response to the Court's September 24, 2018, Order at 4-5; see February 2017 JMPR at

1-2 (citing Sheets, 20 Vet.App. at 466-67, and Medrano, 21 Vet.App. at 170).

The Court found those arguments unpersuasive because the parties overlooked that

surviving spouse status is not, by itself, a claim for benefits, but is instead one element of the claim

for survivor benefits. However, the Court additionally stresses that our decision today does not run

afoul of the proscription against disturbing or reversing findings of fact favorable to claimants as

espoused in Sheets and Medrano.

Although the Court is recalling mandate in #16-2104 and setting aside both February 2016

Board decisions, the Court has not reviewed the merits of the Board's factual determination

regarding surviving spouse status. The Court has determined, based on the undisputed arguments

from all parties, that the Board erred in not ensuring that VA complied with the heightened

procedural safeguards implicated in simultaneously contested claims. Because the process by

which the Board reached its factual findings was defective and prejudicial, the Board must

readjudicate the simultaneously contested claim. However, the Court expresses no opinion

regarding the merits of the Board's factual findings regarding surviving spouse status. Certainly,

we are not setting aside or reversing any factual determination based on finding it clearly

erroneous. See 38 U.S.C. § 7261(a)(4) (providing that the Court may only set aside or reverse a

finding of material fact if such a finding is clearly erroneous). Although the Court's action will

result in the Board revisiting its factual determinations regarding surviving spouse status, it is free

to arrive at the same factual conclusion, or an alternative conclusion, after it ensures that the

heightened procedural safeguards are satisfied.

Moreover, although the Court in Sheets and Medrano instructed that the Court may not

disturb or reverse factual findings favorable to a claimant, that prohibition is not implicated in this

case. The statute governing the Court's scope of review provides that the Court, "to the extent

necessary to its decision and when presented, shall . . . in the case of a finding of material fact

adverse to the claimant . . . hold unlawful and set aside or reverse such finding if the finding is

clearly erroneous." 38 U.S.C. § 7261(a)(4) (as amended by the Veterans Benefits Act of 2002,

Pub. L. No. 107-330, § 401 (Dec. 6, 2002) (providing for the Court to reverse or set aside only

findings of fact "adverse to the claimant")); see Roberson v. Principi, 17 Vet.App. 135, 138-42

(2003) (per curiam order) (discussing the addition of the words "adverse to the claimant" to section

7261(a)(4)).

Section 7261(a)(4) clearly provides the Court the authority to set aside or reverse a factual

finding adverse to the claimant. In Roberson, the Court, relying on the addition of the language

"adverse to the claimant" to section 7261(a)(4), stated that "the Court is clearly without authority

to reverse findings of fact that are beneficial to claimants." 17 Vet.App. at 139. In Sheets, the

21

Court, relying on Roberson, stated that the Court "cannot disturb a factual finding that is favorable

to the appellant." 20 Vet.App. at 466-67. And in Medrano, the Court, relying on section 7261(a)(4)

and Roberson, stated that "[t]he Court is not permitted to reverse findings of fact favorable to a

claimant." 21 Vet.App. at 170. In reaching that conclusion, the Court focused on what is outside

the Court's scope of review based on affirmative statutory language defining the Court's scope of

review. In those cases, which all involved a single appellant, it was proper for the Court to make

such an inference because whether a material finding of fact is favorable or adverse to a single

appellant is a mutually exclusive determination.

However, such exclusivity is not present in simultaneously contested claims. The very

nature of a simultaneously contested claim means that a material factual determination will be

favorable to one claimant while at the same time being adverse to another. See Mason, 743 F.3d

at 1374; 38 C.F.R. § 20.3(l). As exemplified here, the factual findings that led the Board to

conclude that Bettie was the surviving spouse were favorable to her and adverse to Debra. We do

not read Roberson and its progeny as precluding the Court, in reviewing a simultaneously

contested claim, from disturbing a factual finding adverse to the claimant seeking reversal even

though that finding was favorable to the other appellant. Holding otherwise would deprive the

adversely affected appellant of her right to meaningful judicial review.

The matter is complicated in this case, however, by the Board's undisputed failure to follow

proper procedures when it, among other errors, adjudicated the simultaneously contested claim in

separate decisions. Although the Board's errors led it to issue two separate decisions, it made the

same findings of material fact in determining that Bettie was the proper surviving spouse. Compare

Bettie's February 2016 Board decision at 3 with Debra's February 2016 Board decision at 4.

Although the Board did not list each appellant on the other appellant's Board decision, these

findings were favorable to Bettie in both decisions and adverse to Debra in both decisions. The

Board's error in issuing separate Board decisions, however, would not affect our scope of review.

D. Set Aside and Remand Both Board Decisions

Having found prejudicial error in VA's failure to comply with the special procedures that

are required as to this simultaneously contested claim, the Court consolidates appeals #16-2104,

#16-3558, and #18-0701, and concludes that both February 17, 2016, Board decisions (Bettie A.P.

Sapp, BVA 12-04 871 (Feb. 17, 2016), Debra B. Sapp, BVA 12-04 871 (Feb. 17, 2016); see supra

n. 7-8) should be set aside and remanded for further development, if necessary, and readjudication

in accordance with the procedures that govern simultaneously contested claims. See 38 U.S.C.

§ 7261(a)(3)(A).

On remand, both appellants are free to submit additional evidence and argument in

accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See

Kay v. Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination

of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397

(1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112

(expedited treatment of remanded claims). In particular, the Board should consider whether

corrective measures can be taken to cure the prejudicial effect of certain evidence (e.g., hearing

testimony) that was developed without adherence to the procedural safeguards for simultaneously

22

contested claims or if such prejudicial effect is incurable and that evidence must be developed

anew.

IV. CONCLUSION

Upon consideration of the foregoing, it is

ORDERED that the Secretary's February 13, 2018, motion to consolidate the appeals in

#16-3558 and #18-0701 is denied. It is further

ORDERED, in #16-2104, that the Court's February 17, 2017, mandate and March 30, 2017,

EAJA mandate are RECALLED. It is further

ORDERED, in #16-2104, that the February 17, 2017, order granting a joint motion for

partial remand and dismissing the remaining issue and March 30, 2017, order granting Bettie's

application for attorney fees under EAJA are WITHDRAWN. It is further

ORDERED that the appeals in #16-2104, #16-3558, and #18-0701 are consolidated. It is

further

ORDERED, in #16-2104, #16-3558, and #18-0701, that the respective February 17, 2016,

Board decisions are SET ASIDE. It is further

ORDERED, in #16-2104, #16-3558, and #18-0701, that the matters addressed in the

respective Board decisions are REMANDED for further development, if necessary, and

readjudication in accordance with the procedures that govern simultaneously contested claims.

DATED: November 27, 2019 PER CURIAM.

23

Appendix

BETTIE A.P. Sapp's claim for DEBRA B. Sapp's claim for

survivor benefits survivor benefits

April 30, 2010

Veteran Donald W. Sapp dies

Bettie files claim May 2010 Debra files claim

RO denies claim July 2010 RO denies claim

Bettie files NOD and requests Debra files NOD and requests

DRO hearing DRO hearing

January 2011 Debra testifies at a DRO hearing

Bettie testifies at a DRO hearing April 2011

RO issues SOC to Bettie December 2011 RO issues SOC to Debra

Bettie perfects her appeal and Debra perfects her appeal and

requests Board hearing requests Board hearing

Bettie testifies at a Board Debra testifies at a Board

October 2012

hearing hearing

July 2013

Board issued a single decision remanding for further development

Debra testifies at a second

September 2013

Board hearing

Board informed Bettie of her

right to a new hearing; Bettie August 2014

waives

Board informed Debra of her

November 2014 right to a new hearing; Debra

requests third hearing

January 2015

Board issued a single decision remanding to afford Debra the third hearing

Debra testifies at a third Board

November 2015

hearing

Board denies Bettie's claim February 17, 2016 Board denies Debra's claim

Board Chairman receives

April 19, 2016 Debra's request for

reconsideration

Bettie (represented) files an

NOA at the Court regarding her June 16, 2016

Board decision (#16-2104)

Secretary files an opposed

motion to stay proceedings

pending the Board Chairman's July 22, 2016

decision on Debra's motion for

reconsideration

24

BETTIE A.P. Sapp's claim for DEBRA B. Sapp's claim for

survivor benefits survivor benefits

Court grants the Secretary's

August 26, 2016

motion

Board Chairman denies Debra's

motion for reconsideration and

notes that an August 8, 2016,

September 9, 2016

letter had been sent in error

and was superseded by this

letter.

Secretary informs Court that

Debra's motion for

September 26, 2016

reconsideration has been

denied

Debra (self-represented) files

Court lifts stay in #16-2104 October 17, 2016 NOA with Court regarding her

Board decision (#16-3558)

Secretary informs Court of

Secretary informs Court of potential party of interest

potential party of interest November 21, 2016 (Bettie) in #16-3558

(Debra) in #16-2104

Bettie files notice to intervene

Court orders parties to initiate

November 30, 2016

Rule 33 Conference

Court changes caption of

December 14, 2016 #16-3558 to reflect Bettie as

intervenor

Rule 33 Conference held January 5, 2017

Parties file JMPR February 6, 2017

Court grants JMPR

Court issues mandate in February 17, 2017

#16-2104

Bettie's attorney files for EAJA

February 26, 2017

fees

March 6, 2017 Debra files informal brief

Court grants EAJA application

Court issues EAJA mandate and March 30, 2017

closes #16-2104

April 19, 2017 Secretary files brief

Counsel files appearance on

May 8, 2017

behalf of Debra

Counsel files motion for leave to

May 10, 2017

file a substitute brief

25

BETTIE A.P. Sapp's claim for DEBRA B. Sapp's claim for

survivor benefits survivor benefits

Court grants motion for leave to

May 24, 2017

file a substitute brief

Court orders parties to initiate

May 26, 2017

Rule 33 Conference

July 6, 2017 Rule 33 Conference held

October 2, 2017 Debra files substitute brief

Secretary files opposed motion

January 4, 2018 to stay proceedings due to a

possible joint resolution

Bettie files opposition to the

January 5, 2018

Secretary's motion

Court denies the Secretary's

January 16, 2018

motion

Debra (represented) files an

NOA regarding Bettie's Board February 12, 2018

decision (#18-0701)

Secretary files opposed motion Secretary files opposed motion

to consolidate #18-0701 with to consolidate #16-3558 with

#16-3558 and an opposed 18-0701 and an opposed

February 13, 2018

motion to stay proceedings motion to stay proceedings

pending resolution of the pending resolution of the

motion to consolidate motion to consolidate

Secretary files responsive brief,

February 15, 2018

including a proposed JMR

Debra files a reply brief,

February 28, 2018

agreeing to the proposed JMR

Bettie files opposition to

Secretary's motion to

consolidate

March 12, 2018

Bettie files opposition to

Secretary's motion to stay

proceedings

April 16, 2018 Bettie files intervenor brief

April 26, 2018

Court issues single order, staying proceedings in both #16-3558 and #18-0701 and ordering the

Secretary to respond to Bettie's opposition to the motion to consolidate

May 10, 2018

Secretary files response to Court's April 26, 2018, order

Court submits #18-0701 to

July 31, 2018

panel for consideration

Bettie files notice to intervene August 20, 2018

Court submits #16-3558 to

September 5, 2018

panel for consideration

26

BETTIE A.P. Sapp's claim for DEBRA B. Sapp's claim for

survivor benefits survivor benefits

Court changes caption of #18-

0701 to reflect Bettie as September 20, 2018

intervenor

September 24, 2018

Court orders all parties to submit memoranda of law

January 3, 2019

Court orders all parties to submit memoranda of law

27