Walter Hall v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 19-8717

WALTER HALL, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided October 18, 2021)

Amy F. Odom and Alec Saxe, both of Providence, Rhode Island, were on the brief for the

appellant.

William A. Hudson, Jr., Principal Deputy General Counsel; Mary Ann Flynn, Chief

Counsel; Christopher W. Wallace, Deputy Chief Counsel; and Clifton A. Prince, all of

Washington, D.C., were on the brief for the appellee.

Before TOTH, LAURER, and JAQUITH, Judges.

TOTH, Judge: Marine Corps veteran Walter H. Hall appeals a November 2019 Board of

Veterans' Appeals decision that dismissed several service-connection claims for lack of

jurisdiction. He argues that the Board erred when it disclaimed jurisdiction to hear his appeal

because he submitted the wrong form. We agree: The particular form a claimant submits—correct

or otherwise—has no bearing on the Board's jurisdiction to hear an appeal. Although VA can

require a claimant to fill out a particular form and can dismiss nonconforming or untimely filings

in appropriate circumstances, none of this affects the Board's jurisdiction to hear appeals of

veterans benefits decisions. Only Congress (or the Constitution) can set the parameters for

jurisdiction, so an agency can neither expand nor limit its own jurisdiction through regulation. And

because there is no indication that Congress intended to limit the Board's jurisdiction to cases

where veterans fill out the correct form, we reverse the Board's finding that it lacked jurisdiction

and remand for further development.

I. BACKGROUND

Mr. Hall served in the Marine Corps from 1999 until 2001. In January 2018, he sought

service connection for ankle, foot, and hip conditions as secondary to a service-connected knee

disability. A month later, VA's regional office (RO) denied his claims and sent him a letter stating

that, if he disagreed with the decision, he must complete "a Notice of Disagreement, VA Form 21-

0958, by March 1, 2019, one year from the date of this notice." R. at 710 (emphasis omitted). The

RO enclosed a VA Form 21-0958 with the notification letter.

On February 19, 2019, the Veterans Appeals Improvement and Modernization Act of 2017

(VAIMA) went into effect, creating a new administrative appeal system for rating decisions issued

on or after that date. Pub. L. No. 115-55, § 2(x), 131 Stat. 1105, 1115 (Aug. 23, 2017). Thus,

VAIMA procedures apply only to claims that the RO addressed in a rating decision dated on or

after February 19, 2019, while those adjudicated before that date are deemed "legacy" claims.

Additionally, VA regulations require that veterans use a different Notice of Disagreement (NOD)

form, VA Form 10182, when seeking Board review of decisions issued on or after that date. See

38 C.F.R. § 20.202 (a), (d) (2021).

On February 19, 2019—the same day the VAIMA went into effect—Mr. Hall submitted

the VAIMA form (i.e., VA Form 10182) to appeal his February 2018 rating decision despite the

fact that this rating decision remained under the domain of the legacy system. The RO never issued

a Statement of the Case (SOC).

In April 2019, the Board informed Mr. Hall by letter that it had received his "Board Appeal

request (VA Form 10182)" and placed his appeal on its "Evidence Submission docket." R at 281.

However, in November 2019, the Board dismissed the veteran's claims after finding that he used

the wrong form, VA Form 10182, in filing his NOD. The Board held that it did not have

jurisdiction to hear the appeal and "the claims must be dismissed." R. at 8. This appeal followed.

II. ANALYSIS

Mr. Hall asks the Court to reverse the Board's finding that it lacked jurisdiction over his

appeal. He doesn’t dispute that he filed the wrong form but argues that the requirement to use VA

Form 21-0958 is not a jurisdictional hook and the Board waived that requirement when it accepted

and processed his appeal. He also asks the Court to ensure that an SOC is issued regarding his foot,

ankle, and hip conditions.

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The Supreme Court has repeatedly emphasized the distinction between rules affecting

jurisdiction and mandatory "claims-processing" provisions that govern the orderly processing of

cases but otherwise do not create or withdraw jurisdiction. "Clarity would be facilitated if courts

and litigants used the label 'jurisdictional' not for claims-processing rules, but only for prescriptions

delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction)

falling within a court's adjudicatory authority." Kontrick v. Ryan, 540 U.S. 443, 455 (2004). The

court expanded on this distinction in Union Pacific R. Co. v. Brotherhood of Locomotive

Engineers, 558 U.S. 67, 81-82 (2009), explaining that

Recognizing that the word "jurisdiction" has been used by courts, including this

Court, to convey "many, too many, meanings," Steel Co. v. Citizens for Better

Environment, 523 U.S. 83, 90 (1998), we have cautioned, in recent decisions,

against profligate use of the term. Not all mandatory "prescriptions, however

emphatic, are properly typed jurisdictional," we explained in Arbaugh v. Y & H

Corp., 546 U.S. 500, 510 (2006). Subject-matter jurisdiction properly

comprehended, we emphasized, refers to a tribunal's "power to hear a case," a

matter that "can never be forfeited or waived." Id., at 514. In contrast, a "claim-

processing rule, . . . even if unalterable on a party's application," does not reduce

the adjudicatory domain of a tribunal and is ordinarily "forfeited if the party

asserting the rule waits too long to raise the point." Kontrick v. Ryan, 540 U.S. 443,

456 (2004) (cleaned up).

Jurisdictional rules are "drastic" because they center on the authority of the entity

adjudicating the claim—so the failure to comply with a jurisdictional rule requires dismissal

because the adjudicatory body no longer has the legal authority to even consider the claim.

Henderson ex. rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). For this reason, any ruling

on the matter would be ultra vires—that is, illegal. Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 94 (1998) ("'Without jurisdiction the court cannot proceed at all in any cause.

Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining

to the court is that of announcing the fact and dismissing the cause.'" quoting Ex parte McCardle,

7 Wall. 506, 514, 19 L. Ed. 264 (1868)).

Unlike jurisdictional rules, however, claims-processing rules are less stringent as they do

not affect a tribunal's "adjudicatory domain." Union Pacific, 558 U.S. at 81. So, even a mandatory

rule that requires an adjudicator to dismiss a case "should not be deemed jurisdictional unless it

governs a court's adjudicatory capacity, that is, its subject matter or personal jurisdiction."

Henderson, 562 U.S. at 435. In contrast, because they do not affect subject matter jurisdiction,

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claims-processing provisions generally are binding when properly asserted and not forfeited, and

so they differ from jurisdictional rules, which are not subject to waiver or forfeiture and can be

raised any time during a case or appeal. See Eberhart v. United States, 546 U.S. 12, 19 (2005) (per

curiam).

"Within constitutional bounds, Congress decides what cases the federal courts have

jurisdiction to consider." Bowles v. Russell, 551 U.S. 205, 212 (2007). Jurisdiction is a two-way

street, however, and so an adjudicatory body can no more renounce jurisdiction over an issue

Congress directed it to adjudicate than it can exercise jurisdiction when it is lacking. When

Congress grants jurisdiction to an adjudicatory body, it has "a virtually unflagging obligation ….

to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States,

424 U.S. 800, 817 (1976). For that reason, "there is surely a starting presumption that when

jurisdiction is conferred, a court may not decline to exercise it. The general rule applicable to courts

also holds for administrative agencies directed by Congress to adjudicate particular controversies."

Union Pacific, 558 U.S. at 71 (internal citations omitted).

As relevant here, 38 U.S.C. § 511(a) provides a cause of action and establishes that "[t]he

Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under

a law that affects the provision of benefits by the Secretary to veterans or the dependents or

survivors of veterans." It is absolutely clear that Congress intended to grant to the Secretary "the

power to declare the law" by adjudicating cases brought under section 511(a). Steel, 523 U.S. at

94. There's no dispute that Mr. Hall brings a claim for veterans benefits under section 511(a).

The Board's jurisdiction is derivative of the Secretary's. As with section 511(a), 38 U.S.C.

§ 7104(a), which sets out the Board's jurisdiction, uses the same mandatory shall in directing that

"[a]ll questions in a matter which under section 511(a) of this title is subject to a decision by the

Secretary shall be subject to one review on appeal to the Secretary." Taken together, sections 511

and 7104 offer no indication that Congress sought to eliminate VA's authority to adjudicate

veterans benefits disputes—i.e., its subject matter jurisdiction—whenever a claimant's pleading

fails to conform to form or timing requirements.

The final relevant statutory provision, 38 U.S.C. § 7105(a), does not discuss jurisdiction

expressly. Titled "[f]iling of appeal," it establishes the process by which veterans initiate an appeal

with the Board. To that end, it provides that appellate review “will be initiated by a notice of

disagreement and completed by a substantive appeal after a statement of the case is furnished as

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prescribed in this section." Subsection (d)(3) provides that "the claimant will be afforded a period

of sixty days from the date the statement of the case is mailed to file the formal appeal. This may

be extended for a reasonable period on request for good cause shown."

In Percy v. Shinseki, the Court noted that this timeliness provision regarding Substantive

Appeals is not jurisdictional in nature and serves as a claims-processing mechanism. 23 Vet.App.

37, 43 (2009). In other words, the Board couldn't merely cite a lack of jurisdiction and summarily

dismiss an appeal; it had to discuss why dismissal was appropriate under the relevant law. Id. And

while Percy did not directly address the jurisdictional nature of other provisions in section 7105

concerning the filing of an NOD (as opposed to a Substantive Appeal), none of those provisions

suggest that Congress intended to limit the Board's jurisdiction whenever a claimant uses the

wrong form to file an NOD.

The Secretary points to regulations such as 38 C.F.R. §§ 20.202 and 20.203 governing the

form of an appeal, but regulations are not jurisdictional in nature as only Congress may confer or

withdraw jurisdiction. Hamer v. Neighborhood Housing Servs. of Chicago, 138 S. Ct. 13, 17

(2017). Instead, VA's regulations are akin to claims-processing rules insofar as they govern the

processing of cases but do not implicate the agency's jurisdiction. So, the exercise of jurisdiction

requires VA to engage in requisite fact finding and explain the basis for dismissing the claim under

the appropriate laws. When the law precludes the type of relief a claimant seeks on procedural or

substantive grounds, the "right course on appeal is to take jurisdiction over the case [and] explain

why this is so." Mata v. Lynch, 576 U.S. 143, 149–50 (2015). See also Steel, 523 U.S. at 89 ("The

absence of a valid (as opposed to arguable) cause of action does not implicate subject matter

jurisdiction, i.e., the courts' statutory or constitutional power to adjudicate the case.").

In sum, the Board had jurisdiction here because Mr. Hall appeals the RO's denial of his

claim for benefits and because nothing in section 7105 suggests that Congress intended to limit

the Board's jurisdiction based on the specific form that the appellant used to file his NOD. Thus,

the Board erred in dismissing Mr. Hall's case on jurisdictional grounds. R. at 6 ("[T]he claims . . .

must be dismissed because the Board does not have jurisdiction over the issues." (emphasis

added)). This error effectively prevented Mr. Hall from participating in the adjudicative process

as the Board neither heard his appeal nor explained why any formal defect in the appeal merited

dismissal under a claims-processing rationale. See Simmons v. Wilkie, 30 Vet.App. 267, 279

(2018), aff'd, 964 F.3d 1381 (Fed. Cir. 2020). The Court thus remands for the Board to either hear

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Mr. Hall's appeal or to provide a rationale for declining to do so. If it dismisses his claim, the Board

should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture

is a relevant consideration, and any other relevant factors.

One final note: the RO never issued an SOC after Mr. Hall filed his NOD. Thus, if the

Board accepts Mr. Hall's legacy appeal, it has an obligation to ensure that the RO complies with

its duty to issue an SOC regarding Mr. Hall's foot, ankle, and hip conditions. See 38 C.F.R. §§

19.26 (2018), 19.29 (2018), 19.30 (2018) (stating that, once a claimant files an NOD, the RO must

reexamine the claim and issue an SOC).

III. CONCLUSION

For the foregoing reasons, the Court REVERSES the Board's finding that it lacks

jurisdiction over Mr. Hall's claims, VACATES the November 4, 2019, Board decision, and

REMANDS the matter for further adjudication consistent with this opinion.

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