# Hamilton v. Brown

> United States Court of Appeals for Veterans Claims · April 15, 1993 · 4 Vet. App. 528

URL: https://www.frixlaw.com/law-library/cases/6610713

## Case

- **Full name:** Stanley A. HAMILTON, Edward A. Contreras, and Elbert R. Powell v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** April 15, 1993
- **Citations:** 4 Vet. App. 528; 1993 U.S. Vet. App. LEXIS 139; 1993 WL 113572
- **Precedential status:** Published
- **Opinion:** Dissent by Kramer
- **Judges:** Farley, Holdaway, Ivers, Kramer, Mankin, Nebeker, Steinberg
- **Cited by:** 121 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6610713

## How later opinions describe it (automated extraction)

- holding that a veteran’s claims for osteoporosis, osteomyelitis, and premature aging, which remained pending before the RO during appeal of additional claims, could be separately appealed after the filing of a subsequent NOD
- holding statutory requirement (38 U.S.C. § 5101(a)(1)) for a formal application to be filed in order for benefits to be paid deemed waived (involuntarily) if Secretary did not adhere to his regulation (38 C.F.R. § 3.155(a) (1993)) and provide formal application form after info…
- noting that RO’s denial of claims on remand from Board was first adjudication of those claims and that, notwithstanding RO’s 30-day notice warning in SSOC, claimant was entitled to period of one year from date on which notice of adverse RO adjudication was sent in order to res…
- stating that adjudication of claims where a claimant has requested that VA pause adjudication "could prejudice a claimant's enjoyment of statutory and regulatory procedural rights"

## Opinion text

KRAMER, Associate Judge,
dissenting:
The majority opinion is built upon the premise that the law regarding notices of disagreement (NOD in singular) is unsettled and a vacuum needs to be filled:
In reaching the decision to abandon our Whitt multiple-NOD holding, the Court is not suggesting that the Federal Circuit’s Strott decision or Whitt action compels such a result. The Circuit has left unresolved how much of Whitt remains viable. Recognition of this vacuum has impelled the Court to reexamine the multiple-NOD concept in light of the substantial part of it that the Federal Circuit has clearly invalidated in Strott and Whitt, and to conclude that the better result under those circumstances is to abandon that concept altogether in favor of achieving the most rational construction of the statute consistent with the Federal Circuit’s actions invalidating subsequent putative NOD’s in Strott and Whitt.
Ante at 531. While the opinion is brilliantly written advocacy as to why the law should be changed and what it should be, the premise upon which it is built is fatally flawed because, except with respect to a single minor issue, see infra, the law is not unsettled and no vacuum needs to be filled.
Under that rubric, however, the effect of the opinion is to reverse obliquely the Fed *546 eral Circuit’s holding in Strott v. Derwinski, 964 F.2d 1124 (Fed.Cir.1992). That holding is as follows: First, Strott emphasized that an NOD can be filed only with respect to “an adjudicative determination of an agency of original jurisdiction.” Strott, 964 F.2d at 1127 (quoting 38 C.F.R. § 19.118 (1991)) (similar provision now codified at 38 C.F.R. § 20.201 (1992)) (emphasis in Strott). Second, Strott stated that “ ‘[t]he agency of original jurisdiction is the VA agency which adjudicated the claim before an appeal to the Board.’ ” Id. (quoting with approval from Prenzler v. Derwinski, 928 F.2d 392, 394 (Fed.Cir.1991) (emphasis in Strott)). Third, Strott determined that even where a previous NOD had been filed (“the NOD of October 18, 1985”),
[i]f ... a hearing and the subsequent decision of July 17, 1989 qualify as an “adjudicative determination of an agency of original jurisdiction,” then [another NOD] would be a jurisdiction-creating NOD. However, we hold that the June 5, 1989 hearing is part of the appellate process and as such, could not provide grounds for a jurisdiction-creating NOD.
Id. At this juncture, Strott has now determined that any NOD is valid for jurisdictional purposes as long as it is filed with respect to an adjudication rendered before the filing of an appeal to the Board of Veterans’ Appeals (BVA).
Finally, Strott concluded that where a VA Form 1-9 had been filed and a hearing held pursuant to such filing, a subsequent adjudication was made in “an appellate role”, rather than by “the ‘agency of original jurisdiction’ that “[accordingly, any written disagreement with that decision is not a valid NOD”; and that, “[t]o the extent that Whitt v. Derwinski suggests otherwise, 1 Vet.App. 40, 47 [1990], it is overruled.” Strott, 964 F.2d at 1128 . Thus, where Whitt , as decided by the U.S. Court of Veterans Appeals, had permitted a valid NOD to be filed (on or after November 18, 1988) to any adjudication made at any time during the processing of a claim, Strott limited the rule of Whitt to apply only to those adjudications made before the claim reached appellate status. In Whitt v. Derwinski, 979 F.2d 215 (Fed.Cir.1992) (single-judge order), the Federal Circuit simply inferred from its precedent in Strott that an adjudication rendered subsequent to the filing of a VA Form 1-9 is an adjudication rendered during appellate status. Except for the question of whether a VA Form 1-9 can serve as a valid NOD, see Strott, 964 F.2d at 1127 (“assuming arguendo that a Form 1-9 could ... serve [as a valid NOD]”), the law is settled and no vacuum needs to be filled. That law provides that a valid NOD is filed where the following conditions are met:
1. The NOD is filed on or after November 18, 1988.
2. The NOD is the first NOD filed to a particular adjudication. See Whitt, 1 Vet.App. at 45 (“While there can be more than one effective NOD involving a particular claim, there can only be one effective NOD with respect to each adjudicative determination of an agency of original jurisdiction and that must, of necessity, be the first document filed....”)
3. The adjudication to which the NOD was filed was rendered before the filing of an appeal to the BVA.
For the foregoing reasons, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6610713. Public record. Not legal advice.