Opinion

Malgapo v. Derwinski

  • 1 Vet. App. 397
  • 1991 WL 149863
Court
United States Court of Appeals for Veterans Claims
Filed
Jul 17, 1991
Status
Published
Author
Steinberg
On the bench
Farley, Holdaway, Ivers, Kramer, Mankin, Nebeker, Steinberg
Cited by
14 cases
Authority
More cited than 13.1%

Overruled in part by Hamilton v. Brown, 4 Vet. App. 528 (1993)

holding, in portion not overruled by Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), that a Substantive Appeal form can function as NOD as to claim if there is no other NOD as to that claim

How later courts described this case

  • holding, in portion not overruled by Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc), that a Substantive Appeal form can function as NOD as to claim if there is no other NOD as to that claim
  • holding, in portion not overruled by Hamilton, 4 Vet.App. at 538, that Form 1-9 can function as NOD as to claim if there is no other NOD as to that claim
  • holding that VA Form 1-9 can be valid NOD
  • holding a VA Form 1-9 to be a valid NOD

Written by the judges who cited it.

Later courts went against this

  • Overruled in part by Hamilton v. Brown, 4 Vet. App. 528 (1993)

    Accordingly, we also overrule Malgapo, 1 Vet.App. at 398-99, to the extent that it holds that a 1-9 Appeal as to a particular claim can itself be an NOD if filed after an NOD has already been filed as to that claim.
    United States Court of Appeals for Veterans ClaimsApr 15, 1993in partRead it

The opinion

STEINBERG, Associate Judge,

concurring:

I write to make two points in response to the dissent of Judge Kramer, infra. First, the parenthetical phrase “(hereafter referred to as the ‘agency of original jurisdiction’)” in section 7105(b)(1) serves a cross-reference purpose and not a substantive one. (The cross-reference term is used in whole or in part four times thereafter in the section to refer to “the activity which entered the determination with which disagreement is expressed”.) I thus cannot agree with Judge Kramer’s conclusion that the statute “require[s] that an NOD must be filed with an activity that makes original decisions.” Second, to the extent that the Malgapo order, entered on July 17, 1991, might have been interpreted by some as permitting “a valid NOD to be filed to a Board of Veterans’ Appeals decision”, the Court’s per curiam statement, entered on September 12, 1991, that “it would be ... legal error ... for this Court to assume jurisdiction on the basis of a purported NOD which could not have been filed until the BVA review which an NOD was intended to generate already had ended in a final decision”, in Sudranski v. Derwinski, 1 Vet.App. 457 (per curiam order statement *400 1991), effectively eliminated the legitimacy of any such interpretation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.