# 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/6610714 ## 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 Farley - **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/6610714 ## 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 FARLEY, Associate Judge, dissenting: When a veteran files a Notice of Disagreement (NOD) with an adverse decision on a claim for benefits, the Department of Veterans Affairs (VA) Regional Office (RO), also referred to as the agency of original jurisdiction (AOJ), is specifically authorized to “develop and review the claim again.” 38 C.F.R. § 19.119 (a). As has been demonstrated by numerous records on appeal, the AOJ often considers additional evidence submitted with an NOD and/or conducts a hearing and/or “review[s] the claim again” with the end result being another adjudication at the AOJ level. The prior denial is usually confirmed but, one must suppose, the AOJ may on occasion grant the claim. “Appellate review will be initiated by a notice of disagreement and completed by a *547 substantive appeal after a statement of the case is furnished_” 38 U.S.C. § 7105 (a). The corresponding regulation, 38 C.F.R. § 19.117 , provides that an NOD, by itself, is insufficient to change the status of a claim from the adjudicatory to the appellate level: “An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal.” The latter requirement is fulfilled by the filing of a YA Form 1-9 which perfects the appeal. In Whitt v. Derwinski, 1 Vet.App. 40 (1991), the Court specifically noted that an AOJ often renders multiple adjudications on a claim prior to the perfection of an appeal to the Board of Veterans Appeals (BVA or Board). See Whitt, 1 Vet.App. at 42 ; see also separate opinion of Farley, J., concurring in part and dissenting in part, 1 Vet.App. at 47-48 . In recognition of these multiple adjudications at the AOJ level, we held in Whitt that there can, but need not, be multiple NODs. Having so held, we then considered motions to dismiss in four distinct consolidated appeals in which multiple NODs had been filed. We denied the motions in two appeals because the NODs were timely and granted the motions in two where the NODs were not timely. Subsequently, in Strott v. Derwinski, 964 F.2d 1124 (1992), the United States Court of Appeals for the Federal Circuit, in a narrowly-drawn holding, ruled that, when the AOJ conducts a hearing in response to a request made by checking a block on the “appeal perfecting” VA Form 1-9, the “field office is acting in an appellate role [and] is no longer the ‘agency of original jurisdiction.’ Accordingly, any written disagreement with that decision is not a valid NOD ...” Strott, 964 F.2d at 1128 . To the extent that it “suggests otherwise,” Whitt was expressly overruled. Id. The Federal Circuit did not specifically rule on the issue whether there could be multiple NODs arising from multiple AOJ adjudications. However, in dicta, it did opine that “[i]f such a hearing [at the AOJ] and the subsequent decision of July 17, 1989 qualify as an ‘adjudicative determination of an agency of original jurisdiction,' then it would be a jurisdiction-creating NOD.” Id. 964 F.2d at 1127 . In a single-judge Order dated July 31, 1992, which states that it “is not citable as precedent,” the Federal Circuit granted the motion of the Secretary to vacate this Court’s decision in Whitt . The Order confines itself “to that portion of the Court of Veterans Appeals decision addressing Whitt’s appeal” and it is premised upon the belief that “Whitt’s appeal raises the same issue that this court addressed in Strott.” Whitt v. Derwinski, 979 F.2d 215 (Fed.Cir. 1992). Although the issues were not exactly the same (Whitt involved a request for a hearing by the AOJ, not a request for VA Form 1-9 hearing), the Federal Circuit premised its decision upon that supposition and, even assuming that the issue was identical in both cases, the threshold analysis and holding of Whitt remains unchanged by any Federal Circuit decision. As the majority is compelled to concede, there is nothing that the Federal Circuit has done, either in Strott or in the single-judge vacation of the “decision addressing Whitt’s appeal,” which requires this Court to venture from its holding that there can be multiple NODs from multiple adjudications by the AOJ. The departure from the multiple adjudications/multiple NODs rule today by the majority thus is not compelled by Federal Circuit decisions; nor is it required by any new law or a change in existing law. Instead, the rule of Whitt is being abandoned for a single and simple reason: the majority prefers to do so. While I do not question the power of the majority to take such a step, I cannot join the majority because I find its analysis unpersuasive and its conclusion violative of the principles of stare decisis. As Justice Brandéis himself observed, ... in commenting on the presumption of stability in statutory interpretation: “Stare decisis is usually the wise policy because in most matters, it is more important that the applicable rule of law be settled than that it be settled right.... This is commonly true, even where the *548 error is a matter of serious concern, provided correction can be had by legislation.” Square D. Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 424 , 106 S.Ct. 1922, 1930 , 90 L.Ed.2d 413 (1986) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 , 52 S.Ct. 443 , 76 L.Ed. 815 (1932) (Brandeis, J., dissenting).) While I do not believe that the doctrine of stare decisis would serve as a bar to this Court changing a rule of law in appropriate circumstances, I do believe that the principles of the doctrine require that any such change be effected only when necessary and then only with a full explanation. One searches the majority opinion in vain for a discussion of either the necessity of or the reason for abandoning Whitt . These omissions are particularly glaring in light of the counsel of Justice Brandéis on the importance of the doctrine of stare decisis. In my view, it is even more important that the “applicable rule of law be settled” in the new and emergent body of veterans law. In place of the multiple adjudications/multiple NODs rule of Whitt , the majority has substituted a rule of decision which ignores the fact that the VA adjudicates and readjudicates claims daily at the AOJ level. Moreover, as evidenced by its enigmatic discussion of the retroactivity of its new rule in part I.G., the majority may have given rise to more questions than it resolved. In any event, I am unpersuaded by the majority’s eloquence, its analysis, or its purporting to have “achiev[ed] the most rational construction of the statute.” Ante at 548. I remain of the view that Whitt was and remains better reasoned and more reflective of the VA’s claims adjudication process. Until today, our holding in Whitt remained in force, was not reversed, and, in my view, is as consistent with the governing statutes and regulations as it was when it was handed down. Because I would not depart from the analysis and holding of Whitt , I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6610714. Public record. Not legal advice.