Holland v. Brown

IVERS, Judge,

concurring in the result:

Although I agree that the appellant should remain in appellate status, I must respectfully dissent to the majority’s analysis in Part II.A.1. The reason I dissent is because the majority here, and the Court, perhaps on other occasions, has interpreted the holding in Hamilton v. Brown, 39 F.3d 1574 (Fed. Cir.1994), far too broadly. By broadly interpreting its holding, the majority has produced a result based upon a factual posture not contemplated by the Court in Hamilton .

In Hamilton , the Federal Circuit held that “[A] case which has been remanded to the unit which made the initial determination is automatically returned to the Board for further processing if full relief is not rewarded by the [RO] on remand.” Id. at 1585 . While it is true that on remand the appellant’s claim remains in appellate status with the RO acting as an arm of the BVA, once the RO readjudicates the claim on remand and decides each element of a claim, the outcome becomes a final, initial AOJ decision on that claim. (This Court has concluded that VA has fully adjudicated a claim when it decides all of the claim’s essential elements — the veteran’s status, disability, service connection, rating (even a noncompensable rating), and effective date. West v. Brown, 7 Vet.App. 329, 332 (1995) (en banc).) Once the West elements are adjudicated, the RO decision is final and may be reviewed only upon the filing of an NOD. See 38 U.S.C. § 7105 (a)-(e); see also Lyon v. Brown, 5 Vet.App. 507, 509 (1993).

*332 After the February 1993 BVA decision to remand, the appellant was granted benefits by the RO for a service-connected back disability rated at 10% disabling with an effective date of March 8, 1991. R. at 385-87. This grant constituted “full benefits” for purposes of 38 C.F.R. § 19.38 . R. at 390-92. See West, 7 Vet.App. at 332 . The grant, in effect, changed the nature of the claim from one in “appellate status” to one which has been finally adjudicated by an agency of original jurisdiction — namely the RO. See Strott v. Derwinski, 964 F.2d 1124, 1127 (Fed.Cir.1992) (agency of original jurisdiction is the VA agency which adjudicates the claim before an appeal to the Board); Premier v. Derwinski, 928 F.2d 392, 394 (Fed.Cir.1991).

The factual posture of this claim clearly distinguishes it from Hamilton and the cases which preceded it. In Hamilton , unlike the situation in this case, the appellant was denied benefits by the RO after the BVA remanded. Hamilton, 39 F.3d at 1578 . Hamilton was not granted service connection for PTSD by the RO on remand. His claim remained denied, and, under the language of 38 C.F.R. § 19.38 , he was denied “the allowance of all benefits sought on appeal.” Therefore, his claim remained in appellate status. In the instant case, the appellant was awarded service connection with a 10% rating and an effective date thereby granting him the “full benefits” he sought on his appeal. After that award, appellate status for the back claim no longer existed and the appellant’s original claim for service connection ended. From that point, the appellant could only pursue a claim for an increased rating or an earlier effective date and do so by filing a NOD.

Although at first glance, the language of the Hamilton opinion appears to encompass the facts in this case, the procedural facts of this case make the appellant’s back claim one of first impression for this Court. By applying a broad interpretation of the Hamilton holding to this case, the majority creates an outcome not contemplated by the Hamilton Court — one which would lead to disparate treatment of veterans who have received identical final decisions. While other appellants would be required to file an NOD in order to appeal a'final decision, this appellant, and those similarly situated, would be granted automatic review by the BVA.

Not only would the result reached by the majority grant disparate treatment of similarly situated veterans, it would fly in the face of long-established procedures, procedures followed by the RO and the BVA in this case, and it tortures the regulatory scheme to do so. It is clear from a reading of the regulations that they are in place to address claims where full benefits are not granted and not claims where benefits are fully granted and are, thus, finally decided claims.

The majority interprets the language of 38 C.F.R. § 20.302 (c) in such a manner as to support their conclusion that the appellant’s claim remains in appellate status. However, the same result could and should be achieved by simply acknowledging that full benefits were granted in April 1993 and that an NOD is required in order to start the appeal as to the back claim. By ignoring this simple fact without explanation, the majority forces itself to take a highly circuitous route to find a basis for the veteran’s appeal. In its analysis, the majority states that “[i]n view of the cross reference to § 20.302(c) in § 19.38, the Court must construe both sections together so that each is part of a ‘harmonious whole.’ ” Ante at 328 (citing Talley v. Derwinski, 2 Vet.App. 282, 286 (1992)). I disagree. The reference to section 20.302(c) simply provides procedural guidance for responding to an SSOC. No language, in either § 19.38 or § 20.302(c) suggests that the provisions are to be read as a “harmonious whole.”

In summary, the BVA properly found that the appellant’s claim had been fully adjudicated by the RO on remand. See R. at 2. The only error committed by the Board with respect to the appellant’s back claim was a failure to recognize the appellant’s September and November 1993 correspondence to-the VA as valid NODs. Although I disagree with the majority’s analysis, I do agree with the result because the appellant in this case did file correspondence in September and again in November of 1993, each constituting *333 a valid NOD for the back claim, and thereby initiating the appeal of the back claim.