# Smith v. Brown

> United States Court of Appeals for Veterans Claims · June 13, 1994 · 8 Vet. App. 217

URL: https://www.frixlaw.com/law-library/cases/6612722

## Case

- **Full name:** Cynthia A. SMITH v. Jesse BROWN, Secretary of Veterans Affairs
- **Court:** United States Court of Appeals for Veterans Claims
- **Decided:** June 13, 1994
- **Citations:** 8 Vet. App. 217; 1994 U.S. Vet. App. LEXIS 1124; 1995 WL 593073
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Mankin
- **Judges:** Ivers, Kramer, Mankin
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ORDER
MANKIN, Judge.
On January 10, 1994, appellant filed a Notice of Appeal (NOA) from a September 28, 1993, Board of Veterans’ Appeals (Board) decision. The NOA did not list the date on which she filed her Notice of Disagreement (NOD). On March 21, 1994, the Secretary filed a motion to dismiss asserting that appellant’s NOD was jurisdictionally invalid.
On April 6, 1994, appellant filed an opposition to the Secretary’s motion to dismiss in which she asserts; (1) a valid NOD was filed on June 9, 1989, (2) the Secretary did not challenge the timeliness or appropriateness of the NOD in her first appeal before the Court (Docket No. 90-926), and (3) since the matter of subject matter jurisdiction was not asserted by the Secretary on the first appeal; the Secretary may not raise the matter on this second appeal. On May 2, 1994, in response to the Court’s order, the Secretary *218 filed a preliminary record which contained a copy of appellant’s NOD dated July 18,1988. The statement of the case indicates that the NOD was filed on July 19, 1988.
There can be only one valid NOD as to a particular claim until a final regional office or Board decision has been rendered in that matter, or the' appeal has been withdrawn by the claimant. Hamilton v. Brown, 4 Vet.App. 528, 538 (1993) (en banc). Review of the preliminary record indicates that appellant first filed an NOD, relating to whether the veteran’s fatal injuries sustained were the result of his own willful misconduct for VA purposes, on July 19, 1988. PR. 7. The purported NOD in June 1989 related to appellant’s disagreement with the hearing officer’s decision which confirmed the original rating decision. PR. 16. In March 1992 the Court vacated and remanded the Board’s May 1990 decision, and the Board issued its final decision on this particular claim on September 28, 1993.
The Court has jurisdiction only over appeals in which an NOD was filed on or after November 18, 1988, see Veterans’ Judicial Review Act, Pub.L. No. 100-687 § 402 (1988) (found at 38 U.S.C. § 7251 note).
On consideration of the foregoing, it is
ORDERED that the Secretary’s motion is granted and this appeal is dismissed for lack of jurisdiction.
Before KRAMER, MANKIN, and IVERS, Judges.
ORDER
PER CURIAM.
On June 13, 1994, in a single-judge order, this case was dismissed for lack of jurisdiction. On June 24, 1994, appellant filed a motion for review by a three-judge panel. In her motion, appellant argues that under the doctrine of res judicata, since the Court exercised jurisdiction over her first appeal before the Court, the Court now has jurisdiction to review this second appeal.
There can be only one valid notice of disagreement as to a particular claim until a final regional office or Board of Veterans’ Appeals decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. Hamilton v. Brown, 4 Vet.App. 528, 538 (1993).
On consideration of the foregoing, it is
ORDERED that appellant’s motion for review is denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6612722. Public record. Not legal advice.