# Malgapo v. Derwinski

> United States Court of Appeals for Veterans Claims · July 17, 1991 · 1 Vet. App. 397

URL: https://www.frixlaw.com/law-library/cases/6608626

## Case

- **Full name:** Albina M. MALGAPO v. Edward J. DERWINSKI, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** July 17, 1991
- **Citations:** 1 Vet. App. 397; 1991 WL 149863
- **Precedential status:** Published
- **Opinion:** Concurrence by Steinberg
- **Judges:** Farley, Holdaway, Ivers, Kramer, Mankin, Nebeker, Steinberg
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled in part by Hamilton v. Brown, 4 Vet. App. 528 (1993).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6608626

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6608626. Public record. Not legal advice.