James I. Evans v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 08-2133

JAMES I. EVANS, APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE .

On Appeal from the Board of Veterans' Appeals

(Decided August 4, 2011)

Kenneth L. LaVan, with whom Dianne E. Olson, both of Fort Lauderdale, Florida, was on

the pleadings for the appellant.

Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Edward

V. Cassidy, Jr., Deputy Assistant General Counsel, and Christopher O. Adeloye, all of Washington,

D.C., for the appellee.

Before MOORMAN, LANCE, and SCHOELEN, Judges.

MOORMAN, Judge, filed the opinion of the Court. LANCE, Judge, filed a dissenting

opinion.

MOORMAN, Judge: The appellant, James I. Evans, through counsel, appeals an April 17,

2008, Board of Veterans' Appeals (Board) decision that denied his claim of entitlement to service

connection for the residuals of a collapsed lung, remanded his claims of entitlement to service

connection for a back disorder and to a compensable evaluation for residuals of a fractured distal left

fibular shaft, and effectively dismissed his claims for asbestos exposure, hepatitis B, and hepatitis

C. Record (R.) at 3-4. On January 28, 2011, this panel issued a decision reversing in part the April

17, 2008, decision and remanding for further proceedings. On February 16, 2011, the Secretary filed

a motion for partial reconsideration of the January 28, 2011, decision. At the Court's invitation, on

March 31, 2011, the appellant filed a response in opposition to partial reconsideration.

The Court concludes that reconsideration is warranted based upon the Secretary's compelling

argument that the Court's January 2011 opinion, read broadly, held that the Secretary waives his

ability to dismiss claims if a claimant uses VA Form 9 and checks Box A of Block 9, indicating that

he wishes to appeal all issues listed in the Statement of the Case (SOC), and must adjudicate all

issues listed in the SOC even where the evidence of record may also indicate that the claimant

wished to limit his appeal to certain issues. Accordingly, the Court will grant the Secretary's motion

for partial reconsideration, withdraw the Court's January 28, 2011, opinion, and issue this opinion

in its stead.

This appeal is timely, and the Court has jurisdiction over the case pursuant to

38 U.S.C. §§ 7252(a) and 7266. The appellant does not present any argument concerning the denial

of his claim for the residuals of a collapsed lung. Accordingly, that claim is deemed abandoned. See

Ford v. Gober, 10 Vet.App. 531, 535 (1997). In addition, the Court will not discuss the claims

remanded by the Board, as the Court does not have jurisdiction over them and the appellant makes

no argument with respect to them. See Link v. West, 12 Vet.App. 39, 47 (1998); Marlow v. West,

11 Vet.App. 53, 55 (1998). For the reasons set forth below, the Court will vacate the April 17, 2008,

Board decision as to its dismissal of the appellant's claims of entitlement to service connection for

asbestos exposure, hepatitis B, and hepatitis C and remand those matters for further proceedings

consistent with this opinion. However, the Court will dismiss the appellant's appeal as to his claims

for memory loss, migraines, and plantar fasciitis that were not the subject of the Board decision on

appeal.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from August 1968 until August 1970.

R. at 573.

In July 2003, the appellant filed a claim with the St. Petersburg, Florida, regional office (RO),

seeking entitlement to service connection for a back condition, bilateral wrist conditions, hepatitis

C, carpel tunnel syndrome, a collapsed lung, drug addiction, and a lung condition due to asbestos

exposure. R. at 484-85. The appellant also sought a compensable rating for his service-connected

distal left fibular shaft fracture and the reopening of a previously denied claim for a forehead injury.

R. at 484. At a later date, the appellant added claims for an eye condition, hepatitis B, a stab wound

to the chest, and a heart condition. R. at 448, 450.

In February 2004, the RO issued a rating decision that disposed of 16 separate claims. R. at

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391. Within that decision, the RO continued the appellant's noncompensable rating for his fibular

shaft fracture, denied entitlement to a non-service-connected pension, and also denied reopening of

the appellant's claim for the residuals of a forehead injury. R. at 391. The decision further denied

entitlement to service connection for an eye condition, the residuals of a stab wound to the chest, the

residuals of a collapsed lung, asbestos exposure, heart trouble, drug and alcohol addiction, hepatitis

B and C, a back disability, carpal tunnel syndrome, a scar on the left wrist, and bilateral plantar

fasciitis. Id. The appellant timely filed a Notice of Disagreement (NOD) to the RO's decision with

respect to his claims for asbestos exposure, a back disability, a collapsed lung, hepatitis B and C, and

his distal left fibular shaft fracture. R. at 379-84. The appellant also raised new claims for a neck

condition, migraines, and memory loss. Id. However, the appellant did not express any

disagreement with the other ten claims decided by the RO in the February 2004 decision. Id.

In September 2004, the RO issued an SOC with respect to the six claims referenced in the

appellant's NOD. R. at 311-31. The RO also issued a rating decision with respect to the appellant's

newly filed claims for a neck condition, migraines, and memory loss. R. at 334-39. The record

before the Court does not reflect that the appellant filed an NOD with respect to the September 2004

rating decision; however, using a VA Form 9,1 the appellant filed a Substantive Appeal to the Board

in November 2004 concerning the "issues" outlined in the September 2004 SOC. R. at 309-10. On

his Form 9, the appellant checked Box A within Block 9, which stated: "I WANT TO APPEAL

ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY

SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO

ME." R. at 309. Box B within Block 9 is to be completed only if the claimant is appealing some but

not all of the issues on the SOC. Id. Below Box B is a space for the claimant to list the issues he

wishes to appeal. Although the appellant did not check Box B within Block 9, in the space provided

below Box B of Block 9 on the same Form 9, the appellant specifically listed the RO's denial of his

claims for an increased rating for his service-connected fractured distal fibular shaft and denial of

his claims for a back injury and residuals of a collapsed lung. Id.

1

The appellant's VA Form 9 that was submitted by the parties as part of the record of proceedings is attached

to this opinion. R. at 309. Although the printed instructions for completing the VA Form 9 were not included in the

record of proceedings, the Court is attaching a copy of the full text of VA's Form 9 including those instructions. This

is the same version of the form that was submitted by the appellant.

3

In the decision now on appeal, the Board fully addressed the three "issues" specifically

outlined in the appellant's Form 9 in the blank space below Box B in Block 9 and further in Block

10; however, the Board dismissed the appellant's claims for (or issues of) asbestos exposure,

hepatitis B, and hepatitis C. The Board, in the decision on appeal, observed that the appellant had

originally included these issues in his appeal. It then stated

However, in his October 2004 VA Form 9, the veteran stated that he was only

appealing the issues of entitlement to service connection for a back disorder and

residuals of a collapsed lung and for an increased evaluated (sic) for his residuals of

a fractured distal left fibular shaft. As such, the veteran has not filed a [S]ubstantive

[A]ppeal for the other issues. See 20 C.F.R. § 20.202.

R. at 4.

II. ANALYSIS

A. The Court's Jurisdiction

In his brief to the Court, the appellant argues that the Board erred by not adjudicating his

claims of entitlement to service connection for asbestos exposure, hepatitis B, hepatitis C, memory

loss, migraines, and bilateral plantar fasciitis. Appellant's Brief (Br.) at 7. Specifically, he asserts

that the Court's caselaw required the Board to liberally read his Form 9 Substantive Appeal and to

address all issues possibly raised within that appeal. Id. at 20-24. The Secretary counters that the

Court lacks jurisdiction over the appellant's asbestos, hepatitis, memory loss, migraine, and plantar

fasciitis claims because those claims were never properly raised before the Board. Secretary's Br.

at 7. In support of this contention, the Secretary argues that, under 38 U.S.C. § 7105(d)(5), 38 C.F.R.

§ 20.202, and this Court's caselaw, the Board was free to dismiss claims where the appellant did not

allege some error committed by the RO. Id. at 7-10.

The Court's appellate jurisdiction derives exclusively from the statutory grant of authority

provided by Congress, and the Court may not extend its jurisdiction beyond that which is permitted

by law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988); see

Henderson v. Shinseki, 131 S.Ct. 1197 (2011). Congress has established that the Court "shall have

power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate."

38 U.S.C. § 7252(a). Consequently, the Court's "jurisdiction is premised on and defined by the

4

Board's decision concerning the matter being appealed," and when the Board has not rendered a

decision on a particular issue, the Court generally has no jurisdiction under section 7252(a) to

consider the merits of the matter. Ledford v. West, 136 F.3d 776, 779 (Fed. Cir. 1998); see also

Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). Nonetheless, the Court exercises de novo

review over Board determinations that are critical to its jurisdiction. See Stokes v. Derwinski,

1 Vet.App. 201, 203-204 (1991) (finding that the Court may find facts "crucial to the proper

determination of whether this Court has jurisdiction"); see also Butts v. Brown, 5 Vet.App. 532, 539

(1993) (en banc) (Court reviews "questions of law de novo without any deference to the [Board's]

conclusions of law"). The Court reviews do novo whether a document constitutes a Substantive

Appeal. Gibson v. Peake, 22 Vet.App. 11, 15 (2007).

1. Claims (Issues) Dismissed by the Board

The Court has the power to review the Board's refusal to exercise its jurisdiction. Butts,

supra. In this case, the Court has jurisdiction to determine whether the Board acted properly in

dismissing the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C pursuant to

38 U.S.C. § 7105 and VA's implementing regulation, 38 C.F.R. § 20.202. For the reasons discussed

below, the Court concludes that the Board failed to provide an adequate statement of reasons or

bases for its conclusion that the appellant had not filed a Substantive Appeal on three of the six

issues that were identified on his NOD and the RO's SOC.

Pursuant to section 7105, the filing of an NOD initiates appellate review in the VA

administrative adjudication process, and the request for appellate review is completed by the

claimant's filing of a Substantive Appeal, after an SOC is issued by VA. 38 U.S.C. § 7105(a),

(d)(1), (d)(3); see Archbold v. Brown, 9 Vet.App. 124, 132 (1996); Rowell v. Principi, 4 Vet.App. 9,

14 (1993). The statute states in relevant part that

Copies of the "statement of the case" prescribed in paragraph (1) of this subsection

will be submitted to the claimant and to the claimant's representative. . . . The

claimant will be afforded a period of sixty days from the date the statement of the

case is mailed to file the formal appeal. This may be extended for a reasonable

period on request for good cause shown. The appeal should set out specific

allegations of error of fact or law, such allegations related to specific items in the

statement of the case. The benefits sought on appeal must be clearly identified.

38 U.S.C. § 7105(d)(3). It is well established that the Board must review all issues and theories that

5

are reasonably raised by the claimant or the evidence of record. See generally Robinson v. Peake,

21 Vet.App. 545 (2008) aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see

also Jarrell v. Nicholson, 20 Vet.App. 326, 331-32 (2006) (en banc); Myers v. Derwinski, 1 Vet.App.

127 (1991).

The issue before the Court is whether the Board erred in determining that a claimant limits

his appeal to certain specified issues when he files a VA Form 9 in which he checks the box

indicating his desire to appeal "ALL OF THE ISSUES LISTED ON THE [SOC]", but also specifies

on the Form 9 arguments as to some, but not all, issues listed in the SOC.

The September 2004 SOC covered the following six issues: (1) an increased rating for the

appellant's service-connected residuals of a fractured distal left fibular shaft, (2) service connection

for a back disability, (3) service connection for asbestos exposure, (4) service connection for

hepatitis B, (5) service connection for hepatitis C, and (6) service connection for the residuals of a

collapsed lung. R. at 313. In response to the SOC, the appellant submitted a Substantive Appeal in

the form of a VA Form 9, on which he checked Box A of Block 9 indicating that he wanted to appeal

"ALL OF THE ISSUES" stated in the SOC. R. at 309. However, on that same VA Form 9 in the

white space below Box B (which he did not check) within Block 9, the appellant specifically listed

the RO's denial of his claims for an increased rating for his service-connected fractured distal fibular

shaft and denial of service connection for a back injury and collapsed lung. Id.

This Form 9 was accepted as a Substantive Appeal, and the appellant's case went before the

Board.2 In May 2005, the appellant's representative from a veterans service organization submitted

a letter listing distal fibular shaft, back injury, and collapsed lung as the "[i]ssues [p]resented for

[r]eview." R. at 302. In January 2008, the appellant presented testimony at a Board hearing. R. at

124-152. At the outset of the hearing, the hearing officer, without further explanation, stated that:

"In our prehearing conference we determined that we have three issues on appeal today, those being

entitlement to service connection for a back disability, service connection for residuals of a collapsed

lung, and entitlement to a compensable (increased) evaluation for residuals of a fracture of the left

2

The record before the Court does not contain any evidence of whether all or only three of the six issues listed

in the September 2004 SOC were certified by the RO as on appeal to the Board. See 38 C.F.R. § 19.35 (2011)

(providing that a VA Form 8 "'Certification of Appeal' . . . is used for administrative purposes and does not serve to either

confer or deprive the Board . . . of jurisdiction over an issue").

6

distal fibular tip/shaft. Is that the correctly stated issues?" The appellant replied, "That's correct."

R. at 125. The hearing officer then concluded the hearing by asking the appellant: "Is there anything

that you would like to add at this time that you don't feel that we've discussed with regard to your

back, your lungs or, essentially, your left ankle?" R. at 151. The appellant declined to add anything.

Id.

In its April 2008 decision, the Board made no further mention of this dialog nor of the

"prehearing conference" in reaching the conclusion that the appellant had limited his appeal to solely

those three issues being discussed at the hearing. Notably, any statements made at the "prehearing

conference" are not a part of the record before this Court. The Board noted that

the veteran's appeal had originally included the issues of entitlement to service

connection for asbestos exposure, hepatitis B, and hepatitis C. However, in his

October 2004 VA Form 9, the veteran stated that he was only appealing the issues

of entitlement to service connection for a back disorder and residuals of a collapsed

lung and for an increased evaluat[ion] for his residuals of a fractured distal left

fibular shaft. As such, the veteran has not filed a [S]ubstantive [A]ppeal for the other

issues. See 38 C.F.R. § 20.202. Accordingly, the issues of asbestos exposure,

hepatitis B, and hepatitis C no longer remain in appellate status and no further

consideration is required.

R. at 4.

The Board's decision to dismiss the veteran's appeal as to three issues relied on VA regulation

38 C.F.R. § 20.202 (Rule 202. Substantive Appeal). That regulation cites as its statutory authority,

38 USC § 7105 (d)(3)-(5). Both are important to this decision. This Court has addressed both of

these provisions previously, noting that the language used in section 7105(d)(5) ("may dismiss") is

permissive in nature and merely allows the Board the latitude to dismiss appeals under certain

conditions. Gomez v. Principi, 17 Vet.App. 369, 372 (2003). However, dismissal is not mandated

in any case. It is helpful here to start with the provisions of Rule 202, which implements section

7105:

A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to

Board of Veterans' Appeals," or correspondence containing the necessary

information. If the Statement of the Case and any prior Supplemental Statements of

the Case addressed several issues, the Substantive Appeal must either indicate that

the appeal is being perfected as to all of those issues or must specifically identify the

issues appealed. The Substantive Appeal should set out specific arguments relating

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to errors of fact or law made by the agency of original jurisdiction in reaching the

determination, or determinations, being appealed. To the extent feasible, the

argument should be related to specific items in the Statement of the Case and any

prior Supplemental Statements of the Case. The Board will construe such arguments

in a liberal manner for purposes of determining whether they raise issues on appeal,

but the Board may dismiss any appeal which fails to allege specific error of fact or

law in the determination, or determinations, being appealed. The Board will not

presume that an appellant agrees with any statement of fact contained in a Statement

of the Case or a Supplemental Statement of the Case which is not specifically

contested. Proper completion and filing of a Substantive Appeal are the last actions

the appellant needs to take to perfect an appeal.

38 C.F.R. § 20.202 (2004 & 2010) (emphasis added).

The regulation states in pertinent part that the Substantive Appeal "should set out specific

arguments" and "to the extent feasible, the arguments should be related to specific items in the

[SOC]." The regulation further states: "The Board will construe such arguments in a liberal manner

for purposes of determining whether they raise issues on appeal" while noting that the "Board may

dismiss any appeal which fails to allege specific errors of fact or law . . . ." Id. In this portion of the

regulation, the Board is directed to assume the affirmative obligation of construing the arguments

in a liberal (pro-veteran) manner. And, the regulation only then notes the permissive option of

dismissal if "any appeal. . . fails to allege specific error."

The problem in the case before the Court is that the appellant created an ambiguity by

checking the box in Block 9 indicating that he wanted to appeal all of the issues identified in the

SOC and also inserted in the same Block 9 specific mention of three specific issues. This created

a situation not contemplated by the instructions accompanying this form. The instructions for

completion of Block 9 stated the following:

Block 9. Save what you want to tell us about why you are appealing for the

next block. This is the block where you tell us exactly what you are appealing.

You do this by identifying the "issues" you are appealing. Your local VA

office has tried to accurately identify the issues and has listed them on the

SOC and any SSOC it sent you.

If you think that your local VA office has correctly identified the issues

you are appealing and, after reading the SOC and any SSOC you

received, you still want to appeal its decisions on all those issues, check the

first box in block 9. Do not check the second box if you check the first box.

8

Check the second check box in block 9 if you only want to continue your

appeal on some of the issues listed on the SOC and any SSOC you received.

List the specific issues you want to appeal in the space under the second box.

While you should not use this form to file a new claim or to appeal new issues

for the first time, you can also use this space to call the [Board's] attention to

issues, if any, you told your local VA office in your Notice of Disagreement

you wanted to appeal that are not included in the SOC or a SSOC. If you want

to file a new claim, or appeal new issues (file a new Notice of Disagreement),

do that in separate correspondence.

Attachment at 4-5 (boldface emphasis added). Thus, in completing his VA Form 9, this appellant

created ambiguity in regard to the issues he was appealing. He checked Box A in Block 9, did not

check Box B in Block 9 (which states an intention to appeal only certain listed issues), and then in

the remaining free space in Block 9, which appears to be intended for use only in limited appeals for

which Box B is checked, he inserted comments concerning only three issues.

In analyzing the circumstances presented by the ambiguity created here with respect to the

Substantive Appeal, the Court notes significant principles that the Board failed to consider and apply.

First, this Court has long taken the position that VA must not confine its review of a document from

a pro se claimant to the four corners of the document itself. See, e.g., Douglas v. Derwinski,

2 Vet.App. 435, 439 (1992) (discussing this principle in the context of a Form1-9 Substantive

Appeal). Second, there is a "basic principle of the VA claims process that claims will be processed

and adjudicated in an informal, nonadversarial atmosphere, and that to ensure a just outcome under

this rubric VA will assist claimants in many ways." Id.; EF v. Derwinski, 1 Vet.App. 324, 326

(1991) (stating that although the arguments made in a Form 1-9 appeal to the Board often frame the

nature of that appeal: "there is nothing magical about the statements actually on the 1-9 form, given

the VA's non-adversarial process. The VA's statutory 'duty to assist' must extend this liberal reading

to include issues raised in all documents or oral testimony submitted prior to the B[oard] decision.").

In this regard, the Board has an obligation to read pro se filings liberally. See Comer v. Peake,

552 F.3d 1362, 1368 (Fed. Cir. 2009); Andrews v. Nicholson, 421 F.3d 1278, 1282-84 (Fed. Cir.

2005); Roberson v. Principi, 251 F.3d 1378, 1380-84 (Fed. Cir. 2001). This obligation also applies

to filings made by represented appellants in their direct appeals to the Board. Robinson v. Shinseki,

557 F.3d 1355, 1359 (Fed. Cir. 2009).

Third, the Secretary promulgated a regulation, 38 C.F.R. § 20.101(d), directing the Board to

9

seek clarification from a claimant when a claimant's Substantive Appeal is ambiguous as to the

issues raised on appeal. This regulation provides:

The Board may address questions pertaining to its jurisdictional authority to review

a particular case, including, but not limited to, determining whether . . . Substantive

Appeals are adequate . . ., at any stage in a proceeding before it, regardless of whether

the agency of original jurisdiction addressed such question(s). When the Board, on

its own initiative, raises a question as to a potential jurisdictional defect, all parties

to the proceeding and their representative(s), if any, will be given notice of the

potential jurisdictional defect(s) and granted a period of 60 days following the date

on which such notice is mailed to present written argument and additional evidence

relevant to jurisdiction and to request a hearing to present oral argument on the

jurisdictional question(s). . . .

38 C.F.R. § 20.101(d).3 Rather, the Board determined, on its own initiative and without notice to

the appellant, that: "the veteran has not filed a [S]ubstantive [A]ppeal for the other issues. See

38 C.F.R. § 20.202. Accordingly, the issues of asbestos exposure, hepatitis B, and hepatitis C no

longer remain in appellate status and no further consideration is required." R. at 4. VA's own

regulations, let alone a veteran-friendly, non-adversarial process, do not permit the Board ab initio

to dismiss certain issues within an appeal without first affording the appellant the benefit of the

procedure mandated by 38 C.F.R. § 20.101(d): to provide notice of the Board's perceived defect in

the Substantive Appeal created by a claimant's response on the Form 9 and an opportunity to present

argument and/or evidence on the issue of the adequacy of the Substantive Appeal.

On the facts of this case, where the appellant completed a VA Form 9 and checked Box A

of Block 9 stating that "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE

STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE

THAT MY LOCAL VA OFFICE SENT TO ME," but then further completed Block 9 by listing only

certain issues, the Board's unexplained statement that the appellant had limited his appeal by the

manner in which he completed his VA Form 9 constitutes error. It fails to adequately provide

reasons or bases for the dismissal of the remaining issues. Faced with the ambiguity created by the

appellant in the Substantive Appeal, the veteran-friendly process requires VA at the RO or Board

to seek clarification and communicate with the appellant as to any perceived concern about how the

3

In Percy v. Shinseki, 23 Vet.App. 37, 45 (2009), this Court held that the statutory period with regard to filing

a Substantive Appeal is discretionary and the time frame is not appropriately deemed "jurisdictional."

10

appellant had filled out the Form 9. Indeed, such action would be consistent with VA's obligation

under § 20.101(d).

However, the record before the Court contains no evidence of any effort by VA to clarify

whether the appellant was appealing all the issues in the SOC or only three issues. The Board failed

to comply with VA's own procedural requirements found in 38 C.F.R. § 20.101(d). This failure to

notify the appellant here was prejudicial to the appellant because the appellant had no opportunity,

prior to the Board decision, to present argument and/or evidence in support of his position with

respect to what issues he was appealing and any errors in the RO's adjudication of those issues. The

Board summarily declared that the appellant "stated that he was only appealing the issues of

entitlement to service connection for a back disorder and residuals of a collapsed lung and for an

increased evaluat[ion] for his residuals of a fractured distal left fibular shaft." R. at 4. Yet, no such

statement from the appellant can be found on any portion of the Form 9. See R. at 309.

The Court notes that the VA Form 9, Block 9, containing two apparently mutually exclusive

options, together with sufficient white space that a person checking Box A in Block 9 might also add

additional information in that block, invites ambiguity in a claimant's response. That is precisely the

ambiguity we deal with today. However, after the filing of this Form 9, the Board and the appellant

were not powerless to limit the issues on appeal in this case. As noted above, the Board could have

resolved any ambiguity by providing notice to the appellant of any potential defect in his Substantive

Appeal "at any stage in a proceeding before [the Board]." 38 C.F.R. § 20.101(d). Further, the

Secretary has specifically provided procedures for a withdrawal of an entire appeal or issues within

an appeal, which procedures specifically require that the withdrawal be in writing. 38 C.F.R.

§ 20.204. Thus, the issues on appeal could have been limited if the record was clear that the

appellant wished to do so. However, there is nothing in the record before the Court to make it clear

that the Board hearing officer informed the appellant that the manner in which he had completed his

VA Form 9 might lead to a conclusion that only three issues were on appeal.

The Secretary argues that the legislative and regulatory history of 38 U.S.C. § 7105 and

38 C.F.R. § 20.202 show that Congress never intended to relieve the claimant of the burden of

"identify[ing] issues they wish to appeal and assert[ing] specific error in the administrative decision."

Secretary's Motion for Partial Reconsideration at 2-8. He further argues that VA is not obligated to

11

inform the claimant that certain issues will be deemed abandoned on appeal upon the claimant's

failure to raise an assertion of error. Neither of these arguments addresses the unique circumstances

before the Court, in which the appellant's completion of the VA Form 9 clearly engendered an

ambiguity of which VA had a duty, under its own regulations, to notify the appellant and give him

an opportunity to present written argument and additional evidence relevant to the issue, actions

which may likely lead to clarification as to which matters are being appealed.

The comments received by VA during the development of regulations governing VA's

treatment of issues on appeal to the Board expressed concern that the regulations granted the

Secretary too much discretion to unilaterally dismiss an appeal. See 48 Fed. Reg. 6961, 6964 (1983),

57 Fed. Reg. 4088, 4093 (1992). In response to those concerns, VA noted that the Board

has been, and will continue to be, very liberal in this area. This Rule of Practice also

provides that "The Board will construe such arguments in a liberal manner for

purposes of determining whether they raise issues on appeal . . ." and § 20.203[4]

provides that appellants and representatives will be given notice and an opportunity

to contest the matter when the [Board] questions the adequacy of the Substantive

Appeal.

57 Fed. Reg. 4088, 4093 (1992).

As noted above, VA has a multitude of avenues available to clarify the issues on appeal that

are consistent with pro-veteran, claimant-friendly claim development. The entire veterans claims

adjudication process reflects the clear congressional intent to create an Agency environment in which

VA is actually engaged in a continuing dialog with claimants in a paternalistic, collaborative effort

to provide every benefit to which the claimant is entitled. In accordance with the Secretary's asserted

position, VA not only does not engage in such a dialog, but rather need not even communicate to a

veteran that he has not perfected an appeal as to certain issues he might otherwise believe are on

appeal to the Board until the veteran receives that message many years later in a final Board decision.

The veteran's only remaining chance to receive an initial Board adjudication on the merits of any

issue deemed abandoned by the Board is then to request Board reconsideration. However, the

4

In 2001, 38 C.F.R. § 20.203 was withdrawn and replaced with § 20.101(d), which permits the Board to

"dismiss any case over which it determines it does not have jurisdiction." 38 C.F.R. 20.101(d); 66 Fed. Reg. 17840,

17841 (2001); 66 Fed. Reg. 53339 (2001). However, § 20.101(d) requires that the Board first provide the claimant with

notice of any perceived defect of an entire Substantive Appeal and the opportunity to contest the asserted defect.

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Board's standard for granting reconsideration is a burdensome standard for the veteran to meet. The

Chairman of the Board or his delegate has the sole discretion to choose the decisions that will be

reconsidered and limits the decision to a review to the following grounds: (a) upon allegation of

obvious error of fact of law; (b) upon discovery of new and material evidence; or (c) upon allegation

that an allowance of benefits by the Board has been materially influenced by false or fraudulent

evidence. 38 C.F.R. § 20.1000 (2011).

The Secretary further argues that the appellant "explicitly abandoned" the issues of

asbestos exposure, hepatitis B, and hepatitis C during his January 2008 hearing before the Board.

Secretary's Br. at 13-14. However, it is the Board that is required to provide a complete statement

of reasons or bases, and the Secretary cannot make up for its failure to do so. See

Martin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 156 (1991) (" '[L]itigating

positions' are not entitled to deference when they are merely appellant counsel's 'post hoc

rationalizations' for agency action, advanced for the first time in the reviewing court."). The Board

does not discuss the January 2008 hearing in its decision. There is simply no indication that any

statements that the appellant or his representative made at that January 2008 hearing influenced the

Board's decision. The Secretary cannot support the Board's determination by providing reasons for

the Board's decision that were not stated by the Board.

In sum, the Board's only explanation for its decision is the cursory statement that the

appellant "stated" on the Form 9 that he intended to limit his appeal. A review of the appellant's

Substantive Appeal indicates that he did not actually state that he was limiting his appeal to three

issues. The Board's summary conclusion is inadequate because it does not provide this Court or the

appellant with an explanation of how the Board considered and weighed the conflicting information

on the VA Form 9. The Secretary again attempts to bolster the Board's decision by arguing that the

Board exercised its discretion under § 20.202 and dismissed the appeal as to the claims for asbestos

exposure, hepatitis B, and hepatitis C because the Board determined that the Substantive Appeal did

not contain any specific allegations of error of fact or law regarding these claims. In doing so, the

Secretary again makes a post hoc rationalization for the Board's decision. There is no mention in the

Board decision that it was dismissing the appeal for this reason. The Board decision does not

include any discussion of the specificity requirement of section 7105. Rather, the Board declared

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that the appellant "stated that he was only appealing [three of the six] issues in his Substantive

Appeal." The Board then concluded that the appellant limited his appeal and did not file a

Substantive Appeal as to the three disputed issues.

Contrary to the Secretary's argument, it is impossible to determine from the Board's

conclusory language that it determined that the Substantive Appeal was insufficient because it

contained no specific allegations of error of fact or law. The Court expects that if the Board intends

to dismiss an appeal for failure to comply with the specificity requirement of section 7105, the Board

would clearly state this and explain the basis of its decision. Therefore, the Court finds the

Secretary's argument that the Board correctly dismissed the appellant's appeal under § 20.202

unavailing. Moreover, as noted above, the Board did not discuss 38 C.F.R. § 20.101(d). These

fundamental deficiencies in the Board's statement of reasons or bases require that we vacate the

Board decision that the appellant did not file a Substantive Appeal and remand the matter for

readjudication.

Accordingly, the Court will vacate the Board's dismissal of the issues of asbestos exposure,

hepatitis B, and hepatitis C under 38 C.F.R. § 20.202 for failure to state adequate reasons or bases

and for failure to comply with the Secretary's own regulations and will remand the

matter for appropriate action consistent with VA's regulations. See 38 C.F.R. § 20.101(d);

Robinson v. Shinseki, 557 F.3d at 1359.

2. Claims Not Addressed by the Board

To the extent that the appellant makes arguments concerning his claims for memory loss,

migraines, and fasciitis, which were not decided by the Board, the Court has no jurisdiction to

consider these claims on the merits absent a Board decision addressing them. See Jarrell,

20 Vet.App. at 331 (noting that the Board does not have jurisdiction over a claim until the RO first

issues a decision on it); see also 38 U.S.C. § 7104(a). The Court notes that it is not apparent from

the record that the appellant ever filed an NOD as to these claims after the RO decided them. To the

extent that the appellant believes he has a pending appeal as to these claims, he should raise this

issue to VA. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006). If the Board determines that no

timely NOD was filed or if it denies the claims on the merits, the appellant can appeal by filing a

Notice of Appeal with the Court within 120 days of the Board's decision. 38 U.S.C. § 7266(a).

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B. Appellant's Merit Argument

The Court acknowledges the appellant's argument that VA did not meet its duty to assist with

respect to his claim for service connection for a lung condition caused by asbestos exposure.

Appellant's Br. at 24. However, as this claim has not been considered on the merits by the Board,

the Court will not address this issue, but will allow the Board to consider it in the first instance. See

Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (finding that the Court "may hear legal

arguments raised for the first time with regard to a claim that is properly before the court, [but] it is

not compelled to do so in every instance").

Accordingly, the Court will vacate the April 17, 2008, Board decision with respect to the

appellant's claims for asbestos exposure, hepatitis B, and hepatitis C and remand those matters for

further proceedings consistent with this opinion. However, the appellant's appeal for service

connection for memory loss, migraines, and plantar fasciitis is dismissed for lack of jurisdiction

because those conditions were not the subject of the Board decision now on appeal. On remand, the

appellant is free to submit additional evidence and argument, including the arguments raised in his

briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per

curiam order), and the Board must consider any such evidence or argument submitted. See Kay v.

Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with

38 U.S.C. §§ 5109B, 7112 (requiring Secretary to provide for "expeditious treatment" of claims

remanded by Board or Court).

IV. CONCLUSION

Based on the foregoing analysis, the appellant's and the Secretary's briefs, and a review of

the record on appeal, the Secretary's motion for partial reconsideration is granted; the Court's

January 28, 2011, opinion is WITHDRAWN; and this opinion is issued in its stead. The Board's

April 17, 2008, decision is VACATED with respect to the Board's dismissal of the issues of asbestos

exposure, hepatitis B, and hepatitis C, and the matters are REMANDED to the Board for further

proceedings consistent with this opinion. The appeal as to the appellant's claim for service

connection for memory loss, migraines, and plantar fasciitis is DISMISSED for lack of jurisdiction.

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LANCE: Judge, dissenting: I believe that the Court's original opinion was correct and should

stand. Therefore, I must dissent. The new majority's opinion upon reconsideration is flawed in both

application and analysis. In application, the Board should not be permitted another opportunity to

dismiss the claims that it did not properly dismiss the first time. I fear that in two years the Court

will be reversing another improper dismissal and remanding these claims for a decision on the merits

that is already overdue. More importantly, the analysis in the new opinion is hopelessly muddled

and will lead to rampant confusion in future cases as to how the Board should approach these issues.

The essential flaw in this new opinion is that fails to differentiate between the requirements

for a valid Substantive Appeal and the requirements for a valid withdrawal of an appeal. The result

is an opinion that seriously undermines our recent en banc decision in Ortiz v. Shinseki, 23 Vet.App.

353 (2010) (en banc). In Ortiz, we clearly held that a mere expression of intent is not enough to

satisfy the Substantive Appeal requirement. Id. at 357. Yet, the current opinion discusses the

"ambiguity" as to whether the appellant intended to appeal all issues as if that mattered in

determining whether the Board's dismissal was proper. It simply does not. As the majority notes,

the Board decision on review held that "the veteran has not filed a [S]ubstantive [A]ppeal for the

other issues." R. at. 4. The correctness of this determination cannot be measured by the appellant's

intent but only by examining whether the requirement to "set[] forth—however inartfully—a

particular theory of error" was satisfied or waived. Ortiz, 23 Vet.App. at 357.

In this case, there is no question that the appellant did not offer any argument, inartful or

otherwise, as to the claims in dispute. He merely checked Box A on VA Form 9, which states: "I

WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE

AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE

SENT TO ME." R. at 309. Thus, the question of whether the Substantive Appeal requirement was

satisfied turns on the issue of whether checking this box was an acceptance of an offer by the

Secretary to waive the argument requirement.

In my view, the only reasonable interpretation of Box A is that it is an offer to waive the

argument requirement. As a legal matter, such an interpretation is consistent with both the claimant-

friendly nature of the veterans benefits system, see Henderson v. Shinseki, 131 S. Ct. 1197, 1200

(2011) (reiterating that VA's adjudicatory process is meant to function with a high degree of

16

informality and solicitude for the claimant), and the more general principle that ambiguity in a

document should be construed against the drafter, see E.L. Hamm & Associates, Inc. v. England,

379 F.3d 1334, 1341-42 (Fed. Cir. 2004) (discussing the contract interpretation rule of contra

proferentem, which states that ambiguity is generally construed against the drafter of a contract).

As a practical matter, a veteran would be completely shocked to check this box in a case and then

to receive a Board decision dismissing his appeal for failure to state an argument.

The majority opinion spends a lot of time trying to decipher the effect that should be

accorded to the specific arguments that the appellant makes in box B of the form. The correct

answer is none. The appellant's specific arguments cannot alter the meaning of box A. The meaning

of that box is necessarily uniform in every case where that Form 9 is used and the appellant's choice

to add arguments in box B cannot magically turn box A into something other than an offer to waive

the argument requirement. By giving weight to the appellant's additional arguments in interpreting

box A, the majority implies that the meaning of the pre-printed language in the Secretary's form is

not fixed, but varies depending upon how the form is filled out. This is simply inconsistent with

bedrock principles of law. Cf. Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("Without

standard word meanings and rules of construction, neither Congress nor the Secretary can know how

to write authorities in a way that conveys their intent and no practitioner or–more

importantly–veteran can rely on a statute or regulation to mean what it appears to say."). Thus, the

new majority opinion errs to the extent that the confusing new analysis implies that box A on this

version of VA's Form 9 is not a waiver of the argument requirement in this case or in general.

There is arguably a separate issue of whether the appellant abandoned his appeal. As the

majority opinion notes, this was not the holding of the Board decision and the Secretary is raising

this issue for the first time on appeal. Slip op. at 13. That could easily be the end of the matter.

Even if we were to entertain this argument, our case law is clear that the appellant's actions were not

sufficient to withdraw these claims. See Kalman v. Principi, 18 Vet.App. 522, 524 (2004) (reversing

Board finding that claimant withdrew his appeal where his statement regarding the "only issue

remaining," in context, referred to resolving the location of a video hearing and not limiting the

issues on appeal); Verdon v. Brown, 8 Vet.App. 529, 533 (1996) (setting aside Board finding that

claimant withdrew his appeal where (1) the claimant's letter to his service representative stated he

17

had "come to an agreement" in regard to the disability rating for his right leg, and (2) the service

representative's presentation to the Board omitted mention of the right leg rating, but (3) the

presentation of the claimant's other service representative mentioned the right leg rating); Isenbart

v. Brown, 7 Vet.App. 537, 541 (1995) (finding that, where claimant enumerated certain issues and

stated that there are "no additional issues" at hearing, Court found that "these few words spoken

orally" did not provide "the formality or specificity that withdrawal of [a Notice of Disagreement]

requires."). Therefore, remanding this matter for the Board to provide additional reasons or bases

on an issue where the record is clearly insufficient to support a finding against the appellant merely

risks needless delay and an unnecessary appeal to this Court in the future.

Finally, I note that this new opinion adds some additional discussion of the Board's

procedures for notifying appellants of potential jurisdictional problems and giving them an

opportunity to respond. Slip op. at 12 (discussing 38 C.F.R. § 20.101(d) (2011)). Although these

procedures should not be overlooked in relevant cases, procedural errors are simply irrelevant on

issues where the veteran should prevail on the merits. Thus, there is no need to discuss them in this

case as they merely provide another opportunity to unnecessarily prolong this matter on remand.

For these reasons, I would remand these claims with directions to the Board to decide them

on the merits and I dissent from the majority's more limited remand.

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