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.
The opinion
KRAMER, Associate Judge,
dissenting:
I would grant the appellee’s motion for review en banc, not because of the rationale expressed in the motion, but because the July 17, 1991, per curiam order in this case deviates from the precedent that this Court established in Whitt v. Derwinski, 1 Vet.App. 40 , reh’g en banc denied, 1 Vet.App. 94 (1990). In Whitt , we held that a notice of disagreement (“NOD”) which meets the requirements of 38 C.F.R. § 19 .-118 (1990) (“regulation”) is valid for the purposes of conferring jurisdiction on this Court. The regulation requires, in relevant part, that an NOD must be filed in response to “an adjudicative determination of an agency of original jurisdiction (the VA regional office, medical center or clinic which notified the claimant of the action taken)_” In Whitt , we deemed this language to be the key “operative words” in determining whether an NOD was valid for jurisdictional purposes. Whitt , at 42.
The per curiam order in the instant case, however, stated that the regulation is too narrow and that 38 U.S.C. § 7105 (b)(1) (formerly § 4005(b)(1)) “permits a valid NOD to be filed with any activity (not limited to those listed in the regulation) which ‘entered the determination with which disagreement is expressed’.” Malgapo v. Derwinski, 1 Vet.App. 40 (per curiam order granting jurisdiction, 1991) (emphasis in original) (citing 38 U.S.C. § 7105 (b)(1)). Unfortunately, however, the per curiam order neglected to finish the quoted statutory sentence which, correctly stated, reads:
[The NOD shall] be filed with the activity which entered the determination with which disagreement is expressed (hereafter referred to as the “agency of original jurisdiction”).
38 U.S.C. § 7105 (b)(1) (emphasis added). The term “agency of original jurisdiction” is not itself further defined by statute. In the context of § 7105(b)(1), the word “original” appears to be a limitation on the word “activity”, and hence the regulation is consistent with the statute in that both require that an NOD must be filed with an activity that makes original decisions. Although it is unclear from the regulation whether the entities listed therein (“VA regional office, medical center, or clinic”) exclusively constitute those entities which can be “agencies of original jurisdiction”, or are only examples thereof, what is clear is that both the statute and the regulation require that an NOD can only be filed in rsponse to an adjudication of an original decision maker. The per curiam order does not, however, determine whether the adjudication in the instant case made by the “Director, Compensation and Pension Service of the VA’s Veterans Benefit Administration”, Malgapo v. Derwinski, 1 Vet.App. 40 (per curiam order granting jurisdiction, 1991), is such an adjudication.
I cannot accept a rationale which permits a valid NOD to be filed with “any activity”. By implication, the majority order “un- Whitt ingly” permits a valid NOD to be filed to a Board of Veterans Appeals’ decision and thus completely obliterates the already shaky rationale expressed in the per curiam statement in Sudranski v. Derwinski, U.S.Vet.App. No. 90-451 (order denying motion for reconsideration or review en banc, Sept. 12,1991) even before the ink thereon has dried.