Paul T. Urban , Jr. v. Anthony J. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 03-1329

PAUL T. URBAN , JR., APPELLANT ,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before IVERS, GREENE, and HAGEL, Judges.

ORDER

Paul T. Urban, through counsel, appealed to the Court a March 10, 2003, Board of Veterans'

Appeals (Board) decision in which the Board awarded him a rating of total disability based on

individual unemployability (TDIU) for his service-connected disabilities. The Secretary moved to

dismiss this appeal for lack of jurisdiction, asserting that the claim adjudicated by the Board was

granted, that the Board decision was not adverse to Mr. Urban, and that, therefore, no case or

controversy existed between the parties. Secretary's Motion at 1-2. On September 22, 2003,

Mr. Urban filed a response to the Secretary's motion to dismiss. He argued that he was adversely

affected by the Board's final decision because the Board either failed to assign an effective date, an

essential element of his claim for a TDIU rating, or failed to remand that matter to a VA regional

office (RO) with instructions to further develop the effective-date issue. Appellant's Response at

2-6. Relying on Stanley v. Principi, 283 F.3d 1350 (Fed. Cir. 2002), Mr. Urban contended that the

Board decision awarding a TDIU rating constituted a final Board decision over which the Court

could exercise jurisdiction. Response at 8.

On January 9, 2004, the Court granted the Secretary's motion and dismissed the appeal for

lack of jurisdiction. Urban v. Principi, No. 03-1329, 2004 U.S. Vet. App. LEXIS 136 (Jan. 9, 2004)

(single-judge order). In so doing, the Court concluded:

[Mr. Urban's] arguments lack merit. Under 38 U.S.C. § 7266(a), in order for a

claimant to obtain review of a Board decision by this Court, that decision must be

final and the person adversely affected by that decision must file a [Notice of Appeal]

within 120 days after the date on which notice of the Board decision was mailed. See

In re Quigley, 1 Vet.App. 1 (1990). Here, the award of a [total disability based on

individual unemployability] rating by the Board was not adverse to the claimant and

the issue of the effective date remains pending and thus is not final. If [Mr. Urban]

disagrees with an effective date assigned by the [regional office] and the Board and

the decision is final, he may appeal to the Court. Because there is no case or

controversy regarding entitlement to a [total disability based on individual

unemployability] rating, the Court lacks jurisdiction to entertain that claim. See

Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (Court adopts Article III case or

controversy rubric); see also Shoen v. Brown, 6 Vet.App. 456 (1994) (appellate

review requires case or controversy).

Urban, 2004 U.S. Vet. App. LEXIS, at *2.

On January 28, 2004, Mr. Urban filed a motion for reconsideration or, in the alternative, for

a panel decision. He argues that (1) under the opinion of the United States Court of Appeals for the

Federal Circuit (Federal Circuit) in Stanley, supra, the Board's March 10, 2003, decision was final

and (2) he was adversely affected by the Board's decision because the Board did not fully adjudicate

the final element of his claim by assigning an effective date nor did it remand the effective-date

element of his claim to the RO. Although Mr. Urban acknowledges in his motions that on March

25, 2003, the RO assigned an effective date for his award of a TDIU rating, he argues that he has

been denied the benefit of expedited consideration of his claim provided by section 302 of

theVeterans Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658,

now codified at 38 U.S.C. § 5109A, because he now must initiate a new appeal from the RO's

decision establishing an effective date.

Mr. Urban's reliance on the Federal Circuit's decision in Stanley, for the proposition that the

Board's decision is final, is misplaced. In Stanley, the Federal Circuit, in determining that the Board

had made a final decision when it concluded that the claim could be reopened based on new and

material evidence, was interpreting 38 U.S.C. § 5904(c)(1), the statute governing the award of

attorney fees. See Stanley, 283 F.3d at 1358-59. Notably, the Federal Circuit did not cite to 38

U.S.C. § 7266(a), the statute governing this Court's jurisdiction. Indeed, the Federal Circuit stated

that its interpretation of what constitutes a "final" decision did not affect whether the particular

Board decision would be "appealable to the [U.S.] Court of Appeals for Veterans Claims." Id. at

1359. Accordingly, Mr. Urban's argument is rejected.

Mr. Urban's remaining arguments concerning the Court's jurisdiction are without merit.

When reviewing Mr. Urban's claim, the Board was obligated to consider all reasonably raised

matters regarding the issue on appeal. In its decision, the Board identified the issue before it as

entitlement to a rating of TDIU. The Board awarded Mr. Urban a TDIU rating and ordered payment

to him "subject to controlling laws and regulations applicable to payment of VA benefits."

Mr. Urban has not alleged that he raised to the Board, the issue of the assignment of a particular

effective date and the Board decision did not specifically address that issue, thereby properly leaving

it for the RO to determine. See Richard v. Brown, 9 Vet. App. 266, 269 (1996) (holding that issue

regarding effective date is not ripe for review by the Court until the Board renders a final decision

addressing that issue). Mr. Urban advises that he has filed a Notice of Disagreement (NOD) as to

the RO's March 25, 2003, decision assigning him an effective date. Consequently, that issue remains

under consideration by VA and is not yet ripe for review. See Mokal, 1 Vet.App. at 15; cf. Breeden

v. Principi, 17 Vet.App. 475, 478 (2004) (holding that Board's remand of the veteran's claim to RO

was not an adverse final decision over which Court had jurisdiction). Concerning Mr. Urban's

contention that the Board was required to provide remand instructions to the RO and to specifically

identify the further development required pursuant to 38 C.F.R. § 19.9 (2003), that argument became

moot when the RO issued its decision on March 25, 2003.

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To the extent that Mr. Urban is arguing that the Board must assign, sua sponte, an effective

date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing

unless an NOD is then of record as to the downstream issue of an effective date for the assignment

of that rating. See Collaro v. West, 136 F.3d 1304, 1308 (1998) ("There are five common elements

to a veteran's application for benefits: status as a veteran, the existence of disability, a connection

between the veteran's service and the disability, the degree of disability, and the effective date of the

disability. Disagreement between the agency and the veteran about any of these may create an issue

about which the agency reaches an adjudicative determination and which forms the substance of the

veteran's [Notice of Disagreement]."); see also 38 U.S.C. § 7105(a) (appellate review by Board "will

be initiated by a [N]otice of [D]isagreement and completed by a [S]ubstantive [A]ppeal after a

[S]tatement of the [C]ase is furnished"); 38 C.F.R. § 20.200 (2003). Because Mr. Urban has neither

alleged nor shown that an NOD relating to the assignment of an effective date was filed before the

Board's March 2003 decision, the Board did not err by not addressing that issue. See 38 U.S.C.

§ 7105(a); Garlejo v. Brown, 10 Vet.App. 229, 232 (1997) (Board did not err in refusing to

adjudicate matter as to which no NOD was filed); see also Herlehy v. Principi, 15 Vet.App. 33, 35-

36 (2001) (per curiam order) (Board's jurisdiction is dependent on claimant having filed timely

NOD); Buckley v. West, 12 Vet.App. 76, 82 (1998) (Board's jurisdiction derives from claimant's

NOD). Furthermore, it is also unclear what effect the Board's adjudication of the issue of effective

date in the first instance would have on Mr. Urban's right to an administrative appeal. See 38 U.S.C.

§ 7104(a); see Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1341 (Fed. Cir.

2003) (invalidating 38 C.F.R. § 19.9(a)(2) because "it allows the Board to consider additional

evidence without having to remand the case to the [agency of original jurisdiction] for initial

consideration [or] without having to obtain the appellant’s waiver [of such remand]" contrary to

38 U.S.C. § 7104(a) which mandates that all decisions on a matter are subject to one review on

appeal to the Secretary).

In sum, because the March 2003 Board decision was not adverse to Mr. Urban and because

the Court does not have jurisdiction to review directly an appeal from an RO decision, the Court

does not possess jurisdiction over this appeal. See 38 U.S.C. §§ 7252, 7266; Hibbard v. West,

13 Vet.App. 546, 548 (2000) (per curiam order) (Court's jurisdiction is statutorily limited to appeals

of final Board decisions adverse to claimant).

Upon consideration of the foregoing and the parties' prior pleadings, it is

ORDERED that Mr. Urban's motion for a panel decision is granted, the Court's order filed

on January 9, 2004, is vacated, and this order is issued in its stead. It is further

ORDERED that the alternative motion for reconsideration is dismissed as moot. It is further

ORDERED that the Secretary's motion to dismiss is granted and this appeal is DISMISSED

for lack of jurisdiction.

DATED: June 29, 2004 PER CURIAM.

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