Carmen L. Encarnacion v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 21-1411

CARMEN L. ENCARNACION, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued October 27, 2022 Decided May 18, 2023)

Julia N. Gieseking, of Grosse Pointe, Michigan, with whom Victoria R. Tamayo, of Largo,

Florida, was on the brief, for the appellant.

Amanda Radke, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief

Counsel; Drew A. Silow, Deputy Chief Counsel; and Lisa McCrea, were on the brief, all of

Washington, D.C., for the appellee.

Before TOTH, FALVEY, and JAQUITH, Judges.

TOTH, Judge, filed the opinion of the Court. JAQUITH, Judge, filed a concurring opinion.

FALVEY, Judge, filed an opinion concurring in part and dissenting in part.

TOTH, Judge: Carmen L. Encarnacion, surviving spouse of Army veteran Idilio R.

Aparicio, appealed a June 2020 Board decision that dismissed the veteran's claim for a higher

rating for a right knee condition. The Board concluded that it lacked jurisdiction to consider a July

2018 Notice of Disagreement (NOD) because it sought to challenge the implementation of a May

2018 Board decision by the agency of original jurisdiction (AOJ). On January 30, 2023, the Court

issued a decision vacating the 2018 and 2020 Board decisions and remanded the matter. We agreed

with the Board that an AOJ does not issue a "decision" of the Secretary affecting the provision of

benefits under 38 U.S.C. § 511 when it implements a Board decision without independently

resolving any issue. Because such actions are ministerial rather than adjudicative in nature, it is

not possible to appeal a pure implementation of a grant of benefits; there is technically no

"decision" to appeal. But we also concluded that the Board did not discharge its duty to consider

whether the attempt to appeal such implementation by filing an NOD could be understood as a



Syracuse University College of Law hosted oral argument. The Court thanks the law school for its hospitality.

request for reconsideration by the Board Chairman of the 2018 Board decision. So, we remanded

with instructions for the Board to do so.

The Secretary has moved for reconsideration of our decision on various grounds. First, he

contends that the Court failed to consider the effect of his Solze notice that the Board had already

construed the appellant's July 2018 NOD as a request to reconsider the May 2018 decision; thus,

vacatur of the June 2020 decision and remand for the Board to make the same determination again

serves no purpose. Second, the Secretary asserts that the Court had no jurisdiction over the May

2018 Board decision, and thus lacked the authority to vacate it, because that decision had not been

appealed. Third, and relatedly, the Secretary maintains that our vacatur of the May 2018 decision

interferes with the authority and ability of the Board Chairman to take appropriate action regarding

reconsideration of that decision. The Secretary urges us, once again, to affirm the June 2020

decision.

The Court grants reconsideration and agrees, at least in one aspect, with the Secretary. We

thus rescind the vacatur of the May 2018 Board decision. The Court declines, however, to alter its

analysis regarding vacatur of the June 2020 Board decision or the Agency's duty to consider

whether Ms. Encarnacion's July 2018 NOD constitutes a motion to reconsider the May 2018 Board

decision. Once an issue has been properly presented to the Court for resolution, the Board may not

wrest the issue from our consideration through unilateral action. If that was not clear from our

earlier decision, we make it so now.

Thus, we grant reconsideration, withdraw our prior decision, and issue this one in its stead.

What follows from here is principally a restatement of the earlier decision vacating the June 2020

Board decision, modified only slightly to address matters raised in the Secretary's reconsideration

motion.

I. BACKGROUND

This case carries a long and complex procedural history that we'll attempt to simplify. It

began in 2009 when the now-deceased veteran filed an informal claim for benefits, including a

request to reopen a previously denied compensation claim for a right knee condition.1 With relative

speed, VA reopened the claim, granted service connection, and assigned a 10% rating with an

1

While the veteran had over 10 matters pending before the Agency at the time he passed away, only the

right knee claim is at issue in this appeal.

2

October 14, 2009, effective date. The veteran appealed to the Board, seeking a higher rating and

an earlier effective date, but passed away while awaiting a decision.

Shortly after his death, Ms. Encarnacion filed two claims—one for dependency and

indemnity compensation (alleging that the veteran's death was service connected) and one for

accrued benefits (seeking substitution and the right to continue pursuing any pending claims).

"Although it does not appear that a formal determination was made, by the AOJ's actions it is clear

[it] approved her request to substitute and afforded her the appropriate notice rights." R. at 182.

Since Ms. Encarnacion filed the claims in 2011, the Board addressed the right knee claim five

times, dismissing it, remanding it, and finally deciding it. This appeal centers on the Board's May

2018 decision, which adjudicated the merits of the claim.

In that decision, the Board granted an initial rating of 10%, but no higher, for right knee

limitation of flexion. It attached a notice of appellate rights, which informed Ms. Encarnacion that

she need not do anything if she was satisfied with the outcome of her appeal and that her "local

VA office [would] implement the Board's decision." R. at 214. The notice further advised that, if

dissatisfied, Ms. Encarnacion could (1) appeal to this Court, (2) file a motion for reconsideration

of the Board's decision, (3) file a motion to vacate the Board's decision, or (4) file a motion to

revise the Board's decision based on clear and unmistakable error.

About a month later, the AOJ implemented the Board's decision as to the right knee rating.

It notified Ms. Encarnacion of this on June 14, 2018. R. at 125-27. Just over a month after that, on

July 18, she filed an NOD as to the AOJ's implementation, but only with regard to the rating issue.

This prompted two somewhat inconsistent responses from the Agency. On September 20, it issued

a Statement of the Case (SOC) on the merits of the right knee rating claim; on September 21, it

sent Ms. Encarnacion a letter rejecting the appeal of the June 2018 AOJ action because that action

simply implemented the Board's May 2018 decision. The September 21 letter also informed her

that she had "120 days from the date this [Board] decision was mailed . . . to file a Notice of

Appeal" with this Court. R. at 96.

Ms. Encarnacion responded to the September 20 SOC by filing a Substantive Appeal to

the Board; she did not respond to VA's letter informing her that it could not accept her NOD.

Thereafter, VA responded to Ms. Encarnacion's Substantive Appeal by certifying her case to the

Board and issuing another Board decision on the merits of the right knee rating claim. She appealed

that Board decision to the Court, and her appeal was terminated by the Court's grant of a joint

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motion for partial remand. In the joint motion, Ms. Encarnacion and the Secretary agreed that "the

Board erred by addressing the merits of the increased rating claim before determining whether the

[AOJ] properly found that it could not accept [the] July 2018 NOD." R. at 24.

At this point, we cannot proceed without commenting on the questionable utility to Ms.

Encarnacion of that joint motion to remand. Instead of challenging whether the Board's denial of

the increased rating was proper, the appellant agreed with the Secretary to a remand for the Board

to decide whether it had the authority to make any ruling in the first place. The only possible

outcomes were either dismissal of the appeal for lack of jurisdiction or an affirmation of

jurisdiction but with a substantial delay in the resolution of any appealed issue. How any of this

tactical jockeying could benefit Ms. Encarnacion remains a mystery to us.

On remand, in its June 2020 decision on appeal, the Board reasoned that it lacked

jurisdiction because an appellant "may not challenge the merits of a Board decision by expressing

disagreement with" the AOJ's implementation. R. at 4. Although the AOJ had erroneously issued

the September 2018 SOC with respect to the increased rating issue and subsequently allowed the

appeal to be returned to the appellate docket, the Board concluded that "the law prohibits an NOD

with respect to this type of implementation" and that the Board had "no jurisdiction to address an

issue without a valid NOD." R. at 5. In its decision, however, the Board did not address whether

the NOD should have been sympathetically construed as a motion for the Board to reconsider its

May 2018 decision.

II. ANALYSIS

Ms. Encarnacion argues that the Board erred in not accepting her NOD that sought to

appeal the Agency's implementation of the Board's earlier decision. For his part, the Secretary

defends the Board's decision to disclaim jurisdiction on the grounds that a pure implementation

cannot be appealed.

"It is well settled that the Court has jurisdiction to determine whether the Board had

jurisdiction to take the action it takes in a decision." Young v. Shinseki, 25 Vet.App. 201, 203

(2012) (en banc). To that end, "the Court exercises de novo review over Board determinations that

are critical to its jurisdiction." Evans v. Shinseki, 25 Vet.App. 7, 10 (2011). The Court must decide

whether an implementing action of the sort at issue here can be appealed and thus whether the

Board erred in finding it lacked jurisdiction. Two provisions, 38 U.S.C. §§ 511 and 7104(a), govern

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the jurisdictional question. Section 511 sets out the bounds of the subject matter within the

Secretary's jurisdiction; section 7104(a), in turn, establishes that the Board's jurisdiction is

derivative of the Secretary's.

We begin with the Secretary's jurisdiction. Under section 511(a), "[t]he Secretary shall

decide all questions of law and fact necessary to a decision by the Secretary under a law that affects

the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans."

A "decision" is a "judicial or agency determination after consideration of the facts and the law."

BLACK'S LAW DICTIONARY 511 (11th ed. 2019). Clearly, an action that does nothing more than

implement a grant of benefits already determined by another agency department falls outside the

definition of "decision" because it lacks the requisite assessment of legal or factual issues. Such

action is ministerial rather than adjudicative in nature; it merely effectuates an earlier judgment

and leaves no room during implementation for choice or discretion. See Griffin v. Sec'y of Veterans

Affairs, 288 F.3d 1309, 1323–24 (Fed. Cir. 2002); see also Love v. McDonough, 35 Vet.App. 336,

346 (2022) (noting the parties' agreement that issuing payment at a post-discontinuance disability

rate is not a "decision" under section 511(a) but a ministerial act simply giving effect to an earlier

discontinuance decision).

Section 7104 provides that the Board's jurisdiction is wholly derivative of the Secretary's.

Specifically, it establishes that "[a]ll questions in a matter . . . under section 511(a) of this title . . .

shall be subject to one review on appeal to the Secretary," and "[f]inal decisions on such appeals

shall be made by the Board." 38 U.S.C. § 7104(a) (emphasis added). Ultimately, the Board's

decision is deemed the "final and conclusive" determination of the Secretary as to any discrete

issue decided therein. 38 U.S.C. § 511(a).

Taken together, these statutory provisions show that the pure implementation of a Board

adjudication cannot be regarded as a decision "affect[ing] the provision of benefits" under section

511(a) and so cannot be appealed to the Board, which has already rendered the Secretary's final

determination on the matter.2

2

We have used the word "pure" to describe an implementation in which the AOJ need not make any further

determinations for an award of benefits to take effect. Of course, there are frequently instances where implementation

does require the AOJ to make additional determinations. The most obvious example is when a Board decision simply

grants service connection and, to implement that award, the AOJ must for the first time determine the proper disability

rating and effective date. In those circumstances, the AOJ does issue a "decision" that is appealable. Grantham v.

Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). This opinion does not pertain to what might be called "mixed"

implementation decisions, which ministerially implement a grant of service connection but adjudicate the "previously

undecided," "down-stream" rating and effective date issues. Id.

5

There are important exceptions to the finality of a Board decision. First, a claimant can file

a Notice of Appeal within 120 days of the Board's decision to seek review in this Court. 38 U.S.C.

§§ 7252(a), 7266. Alternatively, under 38 U.S.C. § 7103(a), a claimant can at any time request that

the Board reconsider its decision. Finally, a claimant can file a motion with the Board to revise its

decision on grounds that it was the product of clear and unmistakable error. 38 U.S.C. § 7111. A

critical qualification on the right to file motions to reconsider or revise is that the underlying Board

decision being challenged has not been reviewed and affirmed in relevant part by this Court. See

Disabled Am. Veterans v. Gober, 234 F.3d 682, 693 (Fed. Cir. 2000) (observing that, when this

Court affirms a Board decision as to a specific issue, this Court's decision replaces the Board

decision and there is no longer any Board decision subject to revision or reconsideration).

There is, however, no avenue to avoid finality by appealing to the Board the AOJ's

implementation of a decision already made by the Board. Such an appeal does not abrogate the

finality of a Board decision. Here, the implementation of the May 2018 Board decision by the AOJ

was accompanied by no new findings of fact or law that could affect the award of disability

benefits. The Board had already granted service connection and resolved the proper rating and

effective date. Even more importantly, the AOJ couldn't render new findings on factual or legal

issues already determined by the Board because that would place the AOJ in the untenable position

of reviewing the decision of a superior tribunal on those matters. See Donovan v. Gober,

10 Vet.App. 404, 409 (1997). In sum, the AOJ's purely ministerial implementation of the Board's

judgment was not a "decision" of the Secretary and thus could not be appealed through the filing

of an NOD.

The appellant nonetheless maintains that VA waived (or at least forfeited) any objection to

this jurisdictional defect because VA continued to adjudicate the claim by issuing an SOC and

transferring the appeal to the Board. But this misunderstands the nature of jurisdiction and waiver:

Only the violation of mandatory claims-processing rules can be waived. But here, without a

"decision" under section 511, there is simply nothing to review. A decision is required to confer

jurisdiction, and there is no action the Agency can perform to cure a lack of jurisdiction. Hall v.

McDonough, 34 Vet.App. 329, 332 (2021) (citing Henderson ex. rel. Henderson v. Shinseki, 562

U.S. 428, 435 (2011)). There are two sides to the jurisdiction coin. When Congress sets

jurisdictional boundaries, agencies, like courts, can neither retreat from the authority conferred on

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them (for example, by reading claims-processing rules as imposing limits on jurisdiction), nor step

over the line and assert their jurisdiction to adjudicate matters not properly before them.

As relevant here, the AOJ could not, through errant processing, turn an invalid attempt to

appeal into a valid one or "confer jurisdiction upon the Board over a claim that the Board was

never authorized to hear in the first place." Braan v. McDonald, 28 Vet.App. 232, 237 (2016). In

sum, the Board was correct that it had no authority to review any implementing action such as the

one in this case because the action did not constitute a decision of the Secretary.

Ms. Encarnacion is not without recourse, however, as it is possible to construe her

purported NOD as a motion for the Board Chairman to reconsider the May 2018 decision. When

a written expression of disagreement with a Board decision is filed with the AOJ during the 120-

day period to submit a Notice of Appeal to this Court, "the filing abates finality of the Board

decision for purposes of appealing to the Court." Ratliff v. Shinseki, 26 Vet.App. 356, 360 (2013).

Ratliff requires that an AOJ "forward written expressions of disagreement to the Board Chairman,

who is to 'determine[] the status of the document, that is, whether it is considered a motion for

Board reconsideration or not, and notif[y] the claimant of its determination.'" Gomez v. McDonald,

28 Vet.App. 39, 44-45 (2015) (quoting Ratliff, 26 Vet.App. at 360) (alterations in original). When

Ms. Encarnacion's written expression of disagreement was submitted to the AOJ in July 2018, the

finality of the May 2018 Board decision was abated, at least for purposes of appealing to this Court,

until the Board Chairman takes the appropriate steps under Ratliff. Because the Board should have

assessed whether Ms. Encarnacion's July 2018 submission qualifies as a motion to reconsider the

Board's decision, we will vacate the June 2020 decision and remand for it to do so.

The Secretary argues that this disposition is pointless because, as he advised the Court

before oral argument, the Board already construed the July 2018 NOD as a request for

reconsideration of the May 2018 Board decision. There is no need, he says, for the Court to order

the Board to do something it has already done. But this misunderstands the situation: the Court's

task on appeal was to determine whether the Board committed error in the June 2020 decision, and

we determined that it did by failing to address the Ratliff issue. That was the appropriate time for

the Board to consider the matter—not in October 2022, more than a year and a half after Ms.

Encarnacion filed her Notice of Appeal here and more than two weeks after our order notified the

parties that we were considering whether the July 2018 NOD should be construed as a motion for

Board Chairman reconsideration.

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The Board's unilateral action ignored our admonition in Cerullo v. Derwinski, 1 Vet.App.

195, 197 (1991), that "[o]nce an appellate body takes jurisdiction over a claim, the lower tribunal

may not consider the same issues." Not only is the concept of "concurrent or dual plenary

jurisdiction . . . impermissible," we explained, but "allowance of dual jurisdiction raises the

possibility that a court of appeals will expend extensive judicial time on a case only to have agency

reconsideration nullify its efforts." Id. In this case, we ordered the Board on October 21 not to take

action on any issue pending before the Court unless it was first granted leave to do so per the

procedures spelled out in Cerullo. The Secretary declined to seek such leave on the Board's behalf.

Given Cerullo and this Court's order, it should have been clear that the Board's belated attempt to

dispose of the Ratliff issue while the Court was actively considering the matter was of no legal

consequence. Regardless of what the Board purported, it could not construe the July 2018 NOD

as a request for reconsideration of the May 2018 Board decision until the Court addressed the

issue, over which we had taken jurisdiction. The Court having determined that Ratliff applied in

these circumstances and that the June 2020 decision must be vacated, the Board is now permitted

to construe the NOD as a motion for Board Chairman reconsideration.

This disposition clarifies not only juridical matters but practical ones. Action taken by the

Secretary on an issue that is pending before this Court risks confusion as to governing procedures

and deadlines. For example, the timing of a decision by the Chairman as to whether to grant or

deny reconsideration directly impacts the timeframe within which a VA claimant can appeal a

Board decision to this Court. In Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991), we established

that, unless a protective Notice of Appeal has been filed in this Court, VA must "advise the

claimant of the new 120-day judicial appeal period that commences, as to the underlying

substantive [Board] decision, on the date of the mailing of the [Board's] notice of denial of the

motion for reconsideration." Claimants, especially those who lack the assistance of capable

counsel, could easily lose track of what they must do to pursue their cases properly when a claim

or issue is being adjudicated simultaneously by two different tribunals.

One final matter. Counsel for the appellant attempts to resurrect a seemingly resolved

substitution issue. After briefing was complete and prior to oral argument, Ms. Encarnacion

obtained new counsel who attempted to raise a new argument about whether she received proper

notice regarding her eligibility to substitute into the veteran's claims that were pending when he

died. However, the Court declines to address this argument for two related reasons. First, as noted

8

above, the Board found that Ms. Encarnacion's request to substitute was granted by the AOJ. This

renders any potential notice argument moot. Second, this Court and the Federal Circuit "have

repeatedly discouraged parties from raising arguments that were not presented in an initial brief."

Norvell v. Peake, 22 Vet.App. 194, 201 (2008). Despite reiterating this warning, we have

sometimes—perhaps too many times—gone on to address late-raised arguments anyway. Given

the nature and timing of this argument, we will not do so here. The substitution issue is not of

jurisdictional import and is therefore deemed waived. See Carbino v. West, 168 F.3d 32, 34 (Fed.

Cir. 1999).

III. CONCLUSION

The Secretary's motion for reconsideration is granted. The Court withdraws its January 30,

2023, decision and issues this decision in its place.

For the reasons discussed above, the Court VACATES the June 15, 2020, Board decision

and REMANDS the matter for the Board to consider Ms. Encarnacion's July 2018 NOD in

accordance with Ratliff, since we deem any Board action taken on that issue while it was pending

before the Court to be void. The Court's October 21, 2022, order prohibiting the Board from taking

action related to this case while it has been under consideration here is revoked.

JAQUITH, Judge, concurring: I concur with all of the Court's opinion except the

penultimate paragraph. In my view, the substitution issue is neither moot nor waived—VA's

mishandling of it is an important aspect of the tortured history of this case and the spotty record

before the Court impedes review of the effect of that mishandling. For example, it is unclear

whether Ms. Encarnacion was notified of her right, as a substituted claimant, to a hearing at which

VA would "explain fully the issues and suggest the submission of evidence which the claimant

may have overlooked and which would be of advantage to the claimant's position." 38 C.F.R.

§ 3.103(c) (2011). The Court's remand affords the Board an opportunity to ensure that Ms.

Encarnacion's substitution rights were or are protected.

The substitution snafu is, however, only a part of the significant breakdown in this case of

the system for agency adjudication of veterans' benefits claims and independent judicial review of

that adjudication. VA has flouted the authority of the Board and this Court, and our dissenting

colleague says we are powerless to address the Agency's defiance. In my view, a contrary

9

conclusion is dictated by our status and function as a court created to provide independent judicial

review of decisions in a system founded on fair process.

A. Substitution

Under 38 U.S.C. § 5121(a), monetary benefits to which a veteran was entitled at death

under existing ratings or decisions or those based on evidence in the file at date of death—referred

to as "accrued benefits"—are payable to the veteran's spouse. If a veteran dies while a claim for

benefits is pending, a person who would be eligible to receive accrued benefits under section

5121(a) may "file a request to be substituted as the claimant for the purposes of processing the

claim to completion." 38 U.S.C. § 5121A(a)(1). Even if a surviving spouse submits no specific

request to substitute, the spouse's claim for accrued benefits, survivors pension, or dependency and

indemnity compensation (DIC) is deemed to include a request to substitute if such a claim was

pending before the agency of original jurisdiction or the Board when the claimant died. 38 C.F.R.

§ 3.1010(c)(2) (2014). Before VA promulgated § 3.1010, it deemed a surviving spouse's claim for

accrued benefits as also requesting substitution. See Reeves v. Shinseki, 682 F.3d 988, 993 (Fed.

Cir. 2012) ("'To request substitution, an eligible survivor may file either a claim for accrued

benefits or a request for substitution. Accrued benefits claims and requests for substitution shall

be treated as one and the same.'") (quoting VA Fast Letter 10–30 (Aug. 2010)); Reliford v.

McDonald, 27 Vet.App. 297, 303 (2015) (noting that Fast Letter 10-30 stated that "'receipt of a

VA Form 21–534 will be accepted as both a claim for accrued benefits and a substitution request'").

The regulation specifically provides that "the agency of original jurisdiction [AOJ] will

decide in the first instance all requests to substitute, including any request to substitute in an appeal

pending before the Board." 38 C.F.R. § 3.1010(e) (2014); see 38 C.F.R. § 20.1302 (2014). The

Secretary's determination that the AOJ, rather than the Board, must decide substitution in the first

instance "enable[s] a dissatisfied prospective substitute to obtain Board review of the substitution

issue on appeal." Nat'l Org. of Veterans Advocs., Inc. v. Sec'y of Veterans Affs., 809 F.3d 1359,

1364 (Fed. Cir. 2016).

Ms. Encarnacion's spouse, Army veteran Idilio Aparicio, tore the anterior cruciate ligament

and medial meniscus of his left knee while on active duty in 1970. R. at 2678, 3142. In October

2009, the veteran sought service connection or increased ratings for disabilities of his knees and

back and radiculopathy and neuropathy of his arms and legs; he characterized the conditions as

10

"all related" and asked for a compensation and pension (C&P) examination. R. at 2752. In March

2010, a C&P physician opined that the veteran's right knee condition was related to his service-

connected left knee condition, reasoning that a "long standing painful degenerative condition [of

one knee] commonly causes overloading of the other knee." R. at 2680. In August 2010, the San

Juan, Puerto Rico, regional office (RO) granted service connection for lumbar strain and

degenerative joint disease, rated at 40%; for right knee degenerative joint disease, rated at 10%;

and for left knee radiculopathy, rated at 0%—all effective in October 2009—but denied several

other claims. R. at 2595-96. The veteran submitted a statement in September 2010 disagreeing

with the ratings, effective dates, and denials of service connection. R. at 2576. A March 2011 SOC

reaffirmed the RO decisions. R. at 2539-50. Four days after the SOC, the veteran filed a VA Form

9 appealing all issues. R. at 2489. Although the block indicating that he did not want a Board

hearing was checked, the veteran specified: "Please continue my appeal procedure and schedule a

hearing as soon as possible." R. at 2489.

The veteran died in Puerto Rico on October 25, 2011. R. at 2363-64, 2408-09. The causes

of death were listed as a myocardial infarction, arterial hypertension, and a cerebral tumor. R. at

2363. The appellant submitted a statement on November 2, 2011, advising VA of the veteran's

death and asking that VA "evaluate for DIC benefits and continue his appeal for accrued benefits.”

R. at 2427. Later in November 2011, the appellant submitted a VA Form 21-534, Application for

Dependency and Indemnity Compensation, Death Pension and Accrued Benefits, indicating that

she and the veteran had married in July 1983, had two children, and remained married and lived

together continuously until the veteran's death, and that she had paid $3,000 in burial expenses. R.

at 2365-72.

VA denied the appellant's DIC claim. R. at 2236. In June 2014, less than two weeks after

she received notice of the denial, the appellant submitted a statement disagreeing with it,

emphasizing that the veteran's service-connected conditions "contributed substantially to his cause

of death" and that she was claiming accrued benefits and a total disability rating for her deceased

spouse based upon individual unemployability. R. at 2236. The Philadelphia RO replied that it

could not accept the appellant's statement as a NOD regarding denial of DIC because she already

had an appeal pending for that issue at the San Juan RO. R. at 2225. The appellant forwarded the

reply by the Philadelphia RO to the San Juan RO in September 2014 and asked for the SOC or

review of the case and a new decision. R. at 2219.

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Notwithstanding Fast Letter 10-30 and then § 3.1010(c)(2), there is no evidence that either

RO addressed the substitution issue at all. And that failure had consequences. A surviving spouse

who submits no specific request to substitute but rather a claim for accrued benefits, a survivors

pension, or DIC—which is deemed to include a request to substitute—"may waive the right to

substitute in writing." 38 C.F.R. § 3.1010(c)(2) (2014). In violation of VA's established procedure,

Ms. Encarnacion was not notified of her right to substitute or of her right to waive the opportunity

to substitute. See Reliford, 27 Vet.App. at 303-04.

Pursuant to section 5121, a surviving spouse's claim for accrued benefits is separate and

distinct from the deceased veteran's underlying claim. Id. at 301. An accrued-benefits claim "is

relegated to the beginning of the process, generally behind other pending claims, regardless of

where the underlying claim had been in the appeals process." Id. And "whether accrued benefits

should be awarded 'must be determined based on evidence that was either physically or

constructively in the [deceased claimant's] file at the time of his [or her] death.'" Id. at 301-02 (first

alteration in original) (quoting Ralston v. West, 13 Vet.App. 108, 113 (1999)).

In contrast, section 5121A enables the surviving spouse to proceed in the place of the

deceased veteran to the completion of the claim (for purposes of accrued benefits) and the

substituted spouse is "afforded the ability to further develop the record, including via the

Secretary's duty to assist." Id. at 302.

Even though section 5121A thus appears to be more favorable for claimants, the choice is

theirs. Id. at 304. Failing to notify Ms. Encarnacion that she could waive substitution constitutes

error. See id. Moreover, because the AOJ did not address substitution at all, it did not provide

"notice in accordance with § 3.103(b)(1)"—including the substitute's right to a hearing—as §

3.1010(e)(1) required.

The Board recognized that the AOJ was responsible for adjudicating substitution and twice

tried to get the AOJ to do so. In May 2016, the Board dismissed the veteran's appeal because he

had died before the Board issued a decision. R. at 1844. The Board noted—in bold letters—that

the appellant had submitted a statement and an NOD "that could be construed as a request to be

substituted as the appellant in this case," and that the issue of whether she might be substituted

"has not been specifically adjudicated by the AOJ," so the Board declared that the issue of whether

Ms. Encarnacion may be substituted "is referred to the AOJ for appropriate action." R. at 1844.

The Board simultaneously remanded Ms. Encarnacion's appeal for the RO to issue an SOC "as to

12

the issue of entitlement to accrued benefits" and to obtain treatment records, Social Security

records, the veteran's official military personnel file, and a medical opinion regarding whether the

veteran's service-connected disabilities "contributed significantly or materially to cause his death,"

and whether the causes of his death began in service or the year immediately following service or

were related to service. R. at 1835-39.

In September 2017, the Board found that the medical opinions regarding the cause of the

veteran's death were inadequate, that the appellant could "continue the claim on appeal" on behalf

of the veteran, that the appellant's DIC claim "encompasse[d] a claim to substitute," and that there

was confusion over the May 2016 Board decisions "given the apparent absence of any notice sent

to the appellant as to how she may pursue" her claims for accrued benefits. R. at 285-87. The Board

remanded the case for the RO (1) to provide the appellant "with the appropriate notice, informing

her as to what evidence she may submit to substantiate the claims on appeal" and provide her "an

adequate amount of time to submit any additional evidence," and (2) to refer the appellant's claims

file to another VA physician "to review and provide opinions as to the cause of the Veteran's

death." R. at 287.

In May 2018, the Board observed, for a third time, that the AOJ had not determined whether

the appellant was a valid substitute. R. at 182. The Board decided to overlook the regulatory

requirement without even acknowledging it, saying only this: "Although it does not appear that a

formal determination was made, by the AOJ's actions it is clear they approved her request to

substitute and afforded her the appropriate notice rights. See December 2017 letter." Id. But the

Board's decision to abandon its insistence on regulatory compliance did not dispel the confusion

it had found 8 months earlier. First, the Board began the paragraph giving up on its prior

determinations by mistakenly describing its prior remands as occurring in May 2015 and

September 2016. R. at 181-82. Those remands occurred in May 2016 and September 2017—unless

there were two additional remands not included in the record that were similar to the two that were

included. See R. at 283-89 (September 2017), 1830-40 (May 2016). Second, the contents of the

December 2017 letter the Board cited were not spelled out and the parties did not include it in the

record before the Court.

The appellant contended that the December 2017 Agency letter still did not include any

substitution determination—as the Board acknowledged, R. at 182—and that the absence of that

determination deprives the Board of jurisdiction. Though the Board concluded otherwise in May

13

2018, asserting that it had jurisdiction, id., in September 2017 the Board had said, "Jurisdiction of

this matter currently resides with the San Juan, Puerto Rico RO." R. at 285. And in May 2016, the

Board dismissed the veteran's appeal for lack of jurisdiction, citing § 20.1302. R. at 1845. Section

20.1302 provides both for dismissal of a veteran's appeal pending before the Board when the

veteran dies and for the substitution determination by the AOJ. Moreover, as the appellant has

highlighted, VA declared in its notice of its proposal to add § 3.1010 and amend § 20.1302 that

"the Board lacks original jurisdiction to decide a request to substitute in the first instance."

Substitution in Case of Death of Claimant, 76 Fed. Reg. 8666-01, 8667 (Feb. 15, 2011). On the

other hand, the appellant's counsel seemed to concede at oral argument that the substitution rules

are not truly jurisdictional, but argued that the AOJ's failure to address substitution means the issue

is still pending. Oral Argument (OA) 3:24-43, 11:06-35, 16:27-18:25, Encarnacion v.

McDonough, U.S. Vet. App. No. 21-1411 (held Oct. 27, 2022), https://www.youtube.com/

watch?v=F3kCvKwo9nQ.

It is not clear to me whether the statement that "[t]he substitution issue is not of

jurisdictional import," ante at 9, means that the Court has concluded that VA was wrong in saying

otherwise because the substitution rules are claims processing ones, or just that the Board's finding

that Ms. Encarnacion's (deemed) request to substitute was implicitly granted by the AOJ resolves

any jurisdictional question. Either way, I would not find the substitution argument waived by the

appellant under the circumstances here, where the counsel change apparently was a consequence

of oral argument being scheduled to be heard at Syracuse University College of Law, appellant's

new counsel raised the substitution issue 3 weeks after entering her appearance, and we expressly

included the issue in those for discussion at oral argument. However, the irregular initiation of the

argument, in both timing and form—in a "Solze notice," see Solze v. Shinseki, 26 Vet.App. 299,

301 (2013), rather than regular briefing—did impede its development. See Page v. McDonough,

35 Vet.App. 94, 97 n.3 (2022). And the muddled record leaves open to debate whether the error in

addressing substitution was harmless or prejudicial to the appellant. See Tadlock v. McDonough,

5 F.4th 1327, 1337-38 (Fed. Cir. 2021).

At oral argument, appellant's counsel asked how Ms. Encarnacion, who is elderly,

primarily speaks Spanish, and was unrepresented below, was supposed to understand what her

rights were, in light of the mixed messages she received from VA (regarding rating decisions being

made on a record that closed at the time of her husband's death and whether she could submit new

14

evidence), the lack of notice, the nuances of sections 5121 and 5121A, the length of time it took

to process her claim, and the impact of hurricanes in Puerto Rico on her financial situation. OA

5:22-43, 10:41-11:00, 17:09-55, 47:23-49:49. And appellant's counsel argued that the December

2017 letter did not include notice of the appellant's right to a hearing and afforded only 30 days to

submit evidence. OA 5:34-43, 47:55-48:08. The record before the Court does not include that

letter—or a reasonable answer to the question of how Ms. Encarnacion was supposed to understand

what her rights were. The appellant did, in October 2018, indicate that she did not want a Board

hearing. R. at 70. But that does not address the preceding 7-year broken road from the date of the

appellant's claim and (deemed) substitution request.

The Court's remand for the Board to determine whether the appellant's July 2018 NOD

should be construed as a motion for reconsideration of the May 2018 Board ruling affords the

Board another opportunity to clean this up. The Board should ensure that the appellant's

substitution rights are protected and she is afforded a meaningful opportunity to develop the record,

including through the Secretary's duty to assist, a hearing, and time to submit evidence, all so the

error in failing to do so beginning in November 2011 is not prejudicial.

B. The Court's Jurisdiction

As Judge Toth's thorough opinion on behalf of the Court explains, our jurisdiction comes

from the appeal of the June 2020 Board decision. See 38 U.S.C. § 7252(a). In that decision, the

Board dismissed Ms. Encarnacion's appeal of VA's evaluation of the veteran's right knee disability

because her NOD was aimed at the June 2018 RO rating decision that merely implemented the

May 2018 Board decision. R. at 110, 112-18, 176. Obviously, then, the propriety of VA's treatment

of the appellant's July 2018 NOD is the focus of this appeal.

1. Procedural Recap

The appellant initially argued that the Board provided an inadequate statement of reasons

and bases for its decision to dismiss her claim in that the Board failed to discuss the instructions

the RO provided to the appellant inviting her to appeal the June 2018 rating decision, R. at 99-100,

and the actions of the RO after she submitted her NOD—issuing an SOC, R. at 72-94, marking

her NOD and later appeal (on VA Form 9) as timely, R. at 63-64, and certifying her appeal to the

Board, R. at 65-67. Appellant's Br. at 6. The appellant also argued that the Board failed to discuss

whether the RO's actions afforded her due process. Id. at 1, 7. The Secretary countered that the

appellant was provided clear instructions on how to appeal the May 2018 Board decision, R. at

15

214-15, the RO's September 2018 letter explained that the RO could not accept the appellant's

NOD, R. at 95-97, and the Board adequately explained why the June 2018 RO decision could not

be challenged, "despite the errant SOC," R. at 6-7. Secretary's Br. at 8-9.

Then the appellant's new counsel argued that, because the RO never decided the substitution

question, the Board never had jurisdiction to adjudicate the appellant's claims and thus there is no

final Board decision for the Court to review. Appellant's Oct. 3, 2022, Solze Notice at 5-6. With

oral argument 3 weeks away, the Court ordered the parties to be prepared to discuss "the propriety

and significance of the Board's findings with regard to substitution" and whether the Board's

findings "marked a concession by the Secretary." Oct. 6, 2022, Order. Seven days later, the

Secretary advised the Court that the Board had issued a letter, that very day, informing the

appellant that it had construed her July 2018 NOD as a request for reconsideration of the May

2018 Board decision. Secretary's Oct. 13, 2022, Solze Notice at 1-2. The Court ordered that the

Board "take no action related to any claim or issue currently pending before this Court relating to

this case" without "mov[ing] to do so in accordance with the procedures spelled out in Cerullo,"

Oct. 21, 2022, Order (citing Cerullo v. Derwinski, 1 Vet.App. 195, 197, 200-01 (1991)). No such

motion was made.

2. The Role of the Court

Our dissenting friend says we should not sally forth looking for wrongs to right. Post at 27.

I am more concerned that we not shirk our responsibility "to provide our nation's veterans and their

families with independent judicial review of Board decisions," Am. Legion v. Nicholson, 21

Vet.App. 1, 3 (2007), and, in fulfilling that responsibility, do the right thing in the right way for

the right reason.

The first notes of the dissent's bugling retreat are that Ms. Encarnacion did not argue that

her July 2018 NOD should have been treated as a motion for reconsideration. It is true that she did

not make that argument specifically; her arguments went well beyond that. Ms. Encarnacion

argued that remand is required because the Board provided an inadequate statement of reasons or

bases for finding her July 2018 NOD void and dismissing her appeal, and the Board failed to

discuss how the RO's actions—in encouraging, accepting, handling, and certifying her appeal—

were "compliant with due process." Appellant's Br. at 6-8. The appellant also faulted the Board

for nonetheless accepting and reviewing the appeal, and for failing to ensure that the RO complied

with the Board's prior remand order "to determine 'whether the RO properly found that it could

16

not accept Appellant’s July 2018 NOD.'" Id. At oral argument, appellant's new counsel focused on

VA's failure to issue a substitution decision, but she also argued that VA's handling of the

appellant's July 2018 NOD was unfair to the appellant and the Board "couldn't just dismiss for lack

of jurisdiction" because "the facts of this case are so lopsided against . . . a widow." OA 50:30-

54:03. Viewed in the context of the appellant's actual arguments for remanding the Board's

decision, it takes no sallying for the Court to consider whether the July 2018 NOD should have

been treated as a motion for reconsideration.

Moreover, though "the refusal to consider arguments not raised is a sound prudential

practice . . . there are times when prudence dictates the contrary." Davis v. United States, 512 U.S.

452, 464 (1994). And it is beyond dispute that "the court is not limited to the particular legal

theories advanced by the parties, but rather retains the independent power to identify and apply the

proper construction of governing law." Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991);

see Mason v. Shinseki, 25 Vet.App. 83, 94 (2011). The dissent rests on a case that acknowledges

that "a court is not hidebound by the precise arguments of counsel" but cannot radically transform

a case by taking it over, ordering non-parties to address issues the parties had not raised, and then

decide the case based on one of those issues—circumstances that bear absolutely no relationship

to what is happening in this case. United States v. Sineneng-Smith, 140 S. Ct. 1575, 1581 (2020).

Here, "[u]nlike the Ninth Circuit in Sineneng-Smith, the Court did not sideline the parties in favor

of soliciting arguments from strangers to the litigation. Rather, the Court asked the parties—and

only the parties—to address the issues that it felt needed addressing." United States v. Powell, 467

F. Supp. 3d 360, 384 n.13 (E.D. Va. 2020). We need not and should not don the dissenter's judicial

blinders and fail to identify and fairly apply governing law. See Wolfe v. Wilkie, 33 Vet.App. 25,

41 (2020) (Falvey, J., concurring) ("[W]e must resolve the legal issues before us according to the

law. . . . even if the parties don't cite that law.").

3. Motions for Reconsideration

The dissent's second contention is that the Court has no jurisdiction to say that the Board

erred in not addressing whether the July 2018 NOD constituted a motion for reconsideration

because only the Chairman can order reconsideration, the Chairman is not the Board, and thus

reconsideration is outside the statutory appellate structure. Post at 27-28. But the limits of that

argument stop it well short of the circumstances in this case.

17

As the dissent acknowledges, the Court may review the Chairman's denial of

reconsideration when the Court has jurisdiction over the underlying Board decision. Wolfe, 33

Vet.App. at 31, 39; see Manning v. Principi, 16 Vet.App. 534, 539 (2002) ("[T]he Court has

jurisdiction to review denials of reconsideration if the Court has jurisdiction over the underlying

[Board] decision."), aff'd, 85 F. App'x 216 (Fed. Cir. 2004), and Engelke v. Gober, 10 Vet.App.

396, 399 (1997) (same). That was the situation in Wolfe, Manning, and Engelke, but the case they

and the dissenter rely upon—Mayer v. Brown, 37 F.3d 618, 620 (Fed. Cir. 1994)—is not quite so

limited. Mayer concerns an appeal from the Chairman's denial of a motion for reconsideration

made more than 17 months after a Board decision that was not appealed. Mayer, 37 F.3d at 619.

Mayer simply held that 38 U.S.C. § 7261, the statute that describes the scope of the Court's review,3

"may allow the [Court] to review actions of the Chairman in cases where it already has jurisdiction

by virtue of a timely appeal from a final board decision, [but] it does not independently grant

jurisdiction over such actions." Mayer, 37 F.3d at 620; see Palomer v. McDonald, 27 Vet.App.

245, 255–56 (2015) ("[When] the Court declines to exercise its jurisdiction over an [untimely]

appeal from a Board decision, the Court does not have independent jurisdiction over an appeal

from a denial for reconsideration by the Board Chairman."), aff'd, 646 F. App'x 936 (Fed. Cir.

2016). Mayer therefore actually supports jurisdiction to review the failure of the Chairman to

address the claimant's written expression of disagreement in the context of the June 2020 Board

decision finding her NOD to be void and ineffective. See Mayer, 37 F.3d at 620. Wolfe also

supports jurisdiction in this case because Ms. Encarnacion submitted a written expression of

disagreement with a Board decision within 120 days, so here, as in Wolfe, the Court has jurisdiction

at least to require the Board to determine whether the appellant satisfied the grounds for abating

the finality of the prior Board decision under Rosler, contrary to the Board's determination in June

2020 that the appellant's written expression of disagreement was a nullity. See Wolfe, 33 Vet.App.

at 29-32; Rosler v. Derwinski, 1 Vet.App. 249 (1990).

4. The Ratliff Rule

Our dissenting friend's views of the process for adjudicating motions for reconsideration

are a tick off the issue before the Court today, which calls for the application of the express holding

in Ratliff:

3

In exercising its exclusive jurisdiction to review Board decisions, the Court is empowered to set aside

decisions by the Chairman of the Board that do not accord with law. 38 U.S.C. §§ 7252(a), 7261(a)(3).

18

[W]hen a written expression of disagreement with a Board decision is filed at the

RO during the 120–day period to file an NOA, the filing abates finality of the Board

decision for purposes of appealing to the Court until one of the following actions is

taken: (1) The Secretary determines the written disagreement is an NOA and returns

it to the claimant with information concerning the proper location to file an appeal

or forwards it to the Court and so notifies the claimant; (2) the Board Chairman

determines the status of the document, that is, whether it is a motion for Board

reconsideration, and notifies the claimant of his determination; or (3) the claimant

files an NOA with the Court and, assuming the Court becomes aware that before

the NOA was filed a written disagreement was filed with the RO within the Court's

appeal period, the Court determines that the written disagreement was a misfiled

NOA and not a motion for Board reconsideration. . . . [I]f the Secretary returns the

written disagreement to the claimant or the Board determines that the written

disagreement does not constitute a motion for Board reconsideration, the Secretary

must notify the claimant that the Board decision, as of the date of notification to the

claimant, is now deemed final and that the claimant has a new 120–day appeal

period beginning with the date of the mailing of the notification.

Ratliff v. Shinseki, 26 Vet.App. 356, 360–61 (2013). The Ratliff issue was squarely before the

Board in June 2020 when it decided the significance and effect of the appellant's July 2018 NOD.

And there can be no doubt that deciding the significance and effect of the appellant's NOD is what

the Board did; the Board said it got the case upon the remand of a prior Board decision because

the prior Board decision "erred in failing to determine whether the RO properly found that it could

not accept the July 2018 NOD" and proceeded to conclude that "the July 2018 NOD is void." R.

at 4-5. But the Board in June 2020 did not consider Ratliff, even though the appellant submitted "a

written expression of disagreement with [the May 2018] Board decision . . . during the 120–day

period to file an NOA." Ratliff, 26 Vet.App. at 306, R. at 107-11. The infirmity of the Board's

failure to apply Ratliff in this case does not depend on whether the Board has a role in the

reconsideration process. The Board in June 2020 was obliged to determine (1) whether the

claimant filed a timely written expression of disagreement with the prior Board decision; (2) if so,

whether that expression of disagreement was addressed and the claimant notified of the outcome;

and (3) the effect of the expression of disagreement and the follow-up on the finality of the prior

decision and the appeal period. The Board plainly failed to fulfill that obligation.

Moreover, to the extent the reconsideration process is significant in this case, that process is

not as solitary as the dissent posits. The Chairman is a member of the Board, 38 U.S.C. §§ 7101(a),

7101A, and reconsideration decisions affect the provision of benefits to veterans and their

survivors. See 38 U.S.C. § 511(a). Beyond that, notwithstanding 38 U.S.C. §§ 7103(a) and (b), a

19

reconsideration order need not emanate from the Chairman; under 38 C.F.R.§ 20.109(b) (2022),

reconsideration authority "may also be exercised by the Vice Chairman of the Board and by Deputy

Vice Chairmen of the Board"—who are also members of the Board and each "may also be known

as a Veterans Law Judge." 38 C.F.R. § 20.101 (2022). In addition, under 38 U.S.C. § 7103(c),

"[t]he Board on its own motion may correct an obvious error in the record." And 38 C.F.R.

§ 20.904 empowers an individual Board member to decide whether remand or referral to correct a

procedural defect or take any other action is essential for a proper appellate decision, or the matter

may be addressed by the Board.

When the appellant submitted her July 2018 NOD, requests for reconsideration were to be

addressed to the Board's Director, Office of Management, Planning and Analysis. 38 C.F.R. §

20.1001(b) (2018). VA's manual for handling appeals and reviews provides that "[t]he Board

determines the adequacy of MFR,4" "[o]nly the Board can act on an MFR," "the Board will

determine whether [documents] are true MFRs or misfiled NOAs," and "[t]he Board decides

whether the communication from a claimant is an acceptable MFR." VA APPEALS AND REVIEWS

MANUAL (M21-5), ch. 7, secs. G.2.c., d., and e. VA recognizes that documents disagreeing with a

Board decision often are not sent to the Board. M21-5, ch. 7, sec. G.2.f. The appellant's NOD was

stamped as received by VA's Evidence Intake Center. R. at 107. In such circumstances, M21-5

provides that a claims processor reviews the documents and presents them (in person or

electronically) to the local Appeals Coach or designee. M21-5, ch. 7, sec. G.2.f. The Appeals

Coach reviews VA's database "to determine the action needed." Id. "If the Board has rendered a

final decision on any appeal," the claims processor prepares a "Disagreement with BVA Decision

letter" and sends it to the appellant. Id. "If the Board has never rendered a decision on any appeal,

but there is an appeal pending," the claims processor forwards the appellant's documents to the

Board or the RO appeals personnel, depending on where the appeal is. Id.

The applicable M21-5 provisions make clear that the process of identifying and handling

documents that disagree with Board decisions involves gatekeeping determinations by VA

employees other than the Chairman—at the Board and otherwise. For example, a claims processor

or Appeals Coach must ensure that a document expressing disagreement with a Board decision

gets to the Board and someone at the Board must determine whether the document is a motion for

reconsideration under 38 C.F.R. § 20.1002 or a motion to vacate under 38 C.F.R. § 20.1000. Only

4

"MFR" is an initialism for motion for reconsideration.

20

§ 20.1002(c) provides for review and action by the Chairman; § 20.1000 does not. See Wolfe, 33

Vet.App. at 42 (Bartley, C.J., dissenting in part) (collecting cases where the Chairman referred

motions for reconsideration to a Board member for consideration as a motion to vacate). In this

case, the breakdown in communications appears to have begun when the RO both invited Ms.

Encarnacion to appeal the June 2018 rating decision, R. at 99-100, and said the RO could not

accept appellant's NOD, R. at 95-97. Then the RO demonstrated that it considered the right knee

rating decision to be on appeal, issuing an SOC regarding its denial of an increased evaluation for

the veteran's right knee disability, R. at 72-94, marking her NOD and later appeal as timely, R. at

63-64, and certifying her appeal to the Board, R. at 65-67. The Board in May 2019 identified no

issue with Ms. Encarnacion's July 2018 NOD but denied her appeal. R. at 34-35. It was only at

this Court that the parties agreed that remand was warranted because "the Board erred by

addressing the merits of the increased rating claim before determining whether the RO properly

found that it could not accept Appellant's July 2018 NOD." R. at 24. Back at the Board in June

2020, a second veterans law judge declared the NOD void—in the sentence right after noting that

"a final determination by the Board may only be reconsidered by the Board upon motion." R. at 5.

Apparently no claims processor, appeals coach, RO adjudicator, or Board member

considered whether the appellant's July 2018 NOD was a written expression of disagreement that

might constitute a motion for reconsideration, much less sent it to the Chairman for consideration

and action. Even when the Board purported to act on the appellant's July 2018 NOD in October

2022, the letter advising her that the Board had construed her NOD as a request for reconsideration

of the May 2018 Board decision came from the Board's Office of Litigation & Customer Support,

did not mention the Chairman, and said nothing of who had decided to construe the appellant's

NOD as a request for reconsideration over two years after the Board had determined that her NOD

was void. Secretary's Oct. 13, 2022 Solze notice.

In Mayer, Wolfe, and Manning, the Board denied claimants' motions for reconsideration

and they appealed. In Ratliff, the Court addressed the situation here—where a claimant submits a

written expression of disagreement with a Board decision within 120 days but the Board does not

consider or address it as motion for reconsideration. Ratliff, 26 Vet.App. at 359-61. The surviving

spouse in Ratliff filed her appeal to the Court 39 months after the Board decision but the Court

found it timely because the finality of that decision had been abated by her August 2008 written

expression of disagreement to the RO, which said, "I want to appeal." Id. at 357-61.

21

In this case, the appellant's July 2018 NOD sought to continue her appeal of the Board's

May 2018 decision that did not increase the veteran's right knee rating. R. at 108. The Board in

June 2020 concluded that it had no jurisdiction to address the appellant's disagreement with the

May 2018 Board decision because her July 2018 NOD was void. This Court's jurisdiction always

"includes the power to review a determination by the Board that it lacks jurisdiction over a

particular claim." King v. Nicholson, 19 Vet.App. 406, 409 (2006); see Mintz v. Brown, 6 Vet.App.

277, 281 (1994) ("[T]he Secretary's refusal to exercise jurisdiction . . . clearly presents a case or

controversy within the purview of the Court's jurisdiction."). That is what the Court is doing here—

exercising its well-established jurisdiction to apply the principles set forth in Ratliff. See Threatt

v. McDonald, 28 Vet.App. 56, 60-61 (2016). The Board in July 2020 acknowledged its power to

reconsider the May 2018 Board decision upon motion but failed to recognize or fulfill its obligation

to determine whether the appellant's July 2018 written disagreement amounted to such a motion.

That obligation did not depend on the appellant calling her NOD a motion or filing it with the

Board. See Ratliff, 26 Vet.App. at 359-61; Kouvaris v. Shinseki, 22 Vet.App. 377, 381 (2009) ("In

light of the veteran-friendly nature of the veterans benefits system, . . . strict compliance as to

where within the Board, or even within VA, [a] motion for reconsideration must be filed is not

required.").5 Nor does the Court's jurisdiction to address the Board's failure in June 2020 to

determine whether the appellant's NOD constituted a motion for reconsideration that abated the

finality of the May 2018 Board decision depend on the Court currently having jurisdiction over

the May 2018 Board decision. See Kouvaris, 22 Vet.App. at 381 (holding that the claimant's NOD

was a motion for reconsideration that abated the finality of the Board decision and dismissing the

appeal for lack of jurisdiction with the assurance that the claimant would "have 120 days from the

issuance of any unfavorable decision of the Board Chairman on the motion for reconsideration to

file an appeal in this Court").

This appeal is no freestanding claim of error by the Chairman. There is nothing in the

record to suggest that the Chairman ever saw the appellant's NOD, much less considered it a

5

Kouvaris illustrates that the Court is empowered to decide whether an appellant's filing constitutes a motion

for reconsideration that abates the finality of the underlying Board decision and thus dismiss the appeal for lack of

jurisdiction. Id. Dismissal of this appeal is not appropriate because it did not come to the Court on a Notice of Appeal

from the May 2018 Board decision but on a Notice of Appeal from the June 2020 decision. So vacating the July 2020

Board decision and remanding the matter for the Board to consider Ms. Encarnacion's July 2018 NOD in accordance

with Ratliff is the right result here. As in Kouvaris, any consideration by the Court of the underlying May 2018 Board

decision, whether reconsideration is granted or denied, is downstream.

22

motion for reconsideration and denied it. The actions and inaction on the appellant's NOD were

by the RO in June 2018, VA's intake center, and the Board in June 2020, and the latter is

accountable for failing to even consider or address whether that written expression of disagreement

constituted a motion for reconsideration, and for the effect of that failure on the finality of the May

2018 Board decision.

5. VA's Disregard of Cerullo and the Court

The Board's unilateral action in construing the appellant's July 2018 NOD as a request for

reconsideration in October 2022 was squarely prohibited by Cerullo v. Derwinski, 1 Vet.App. 195

(1991), and is void. And VA's heedlessness of that defining case grew to disregard of the authority

and jurisdiction of this Court.

Ms. Encarnacion's Notice of Appeal of the June 2020 Board decision to this Court was

dated and docketed in February 2021. In September 2022, this case was scheduled for oral

argument the next month. On September 27, 2022, the parties made a joint motion for clarification

of the issues to be addressed at oral argument. Two days later, the Court granted the parties' motion

and ordered that the issues that the parties should be prepared to discuss included the following:

"if a claimant files an NOD as to the RO's implementation within 120 days of the Board's decision,

does VA have a duty to sympathetically construe that NOD as a motion for reconsideration?" Court

Order, Sep. 29, 2022. Two weeks after the Court's order—and 2 weeks before oral argument—the

Secretary notified the Court that the Board had issued a letter that very day informing the appellant

that it had construed her July 2018 NOD as a request for reconsideration. Secretary's Solze Notice,

Oct. 13, 2022. The Secretary's notice specifically cited the Court's question regarding whether VA

has a duty to sympathetically construe that NOD as a motion for reconsideration.

Since the Court's infancy, it has embraced and applied the principle of federal appellate

law that "the filing of an NOA confers plenary jurisdiction6 upon an appellate court." Cerullo,

1 Vet.App. at 196. The Court did so by specific reference to the Supreme Court's holding that

"'[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction

on the court of appeals and divests the district court of its control over those aspects of the case

involved in the appeal.'" Id. (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58

6

Plenary jurisdiction is "[a] court's full and absolute power over the subject matter and the parties in a case."

Jurisdiction, BLACK'S LAW DICTIONARY (11th ed. 2019). "Plenary" means "[f]ull; complete; entire." Plenary, BLACK'S

LAW DICTIONARY (11th ed. 2019).

23

(1982)). Timely filing of a Notice of Appeal transfers jurisdiction to the appellate court. Cerullo,

1 Vet.App. at 197. Simply put, "[o]nce an appellate body takes jurisdiction over a claim, the lower

tribunal may not consider the same issues." Id.

The dissent's assertion that Cerullo's prohibition of agency action on the issues on appeal

is "too broad and legally incorrect," as well as unworkable in the system for adjudicating claims

for veterans benefits, post at 30, is belied by over three decades of the Court reaffirming and

successfully applying Cerullo. See, e.g., Monk v. Wilkie, 32 Vet.App. 87, 95 n.3 (2019) (en banc)

(relying on the Cerullo principle "that once this Court exercises jurisdiction over a matter, the

Board may not consider the same issue" to stay in the mainstream of Federal appellate court

practice), aff'd in part, dismissed in part on other grounds sub nom. Monk v. Tran, 843 F. App'x

275 (Fed. Cir. 2021); Westfall v. McDonald, 27 Vet.App. 341, 347 (2015) ("[I]f the Board acted

on the remand before the case at the Court was final, then any action that the Board took would

have questionable validity" because Cerullo holds that once the Court has jurisdiction "the Board

is without jurisdiction to take action on the same issues."). The dissent's attack on Cerullo relies

on examples far afield from this case, but when there has been tension between the rules for fair

and functional independent judicial review and the unique aspects of the system for affording

veterans and their survivors opportunities to secure benefits, it is the separation of issues that has

made the process work. See Monk, 32 Vet.App. at 95-97; Young v. Shinseki, 25 Vet.App. 201,

204–05 (2012) (noting that the Court's exercise of jurisdiction was "consistent with the fact that

parts or theories of a claim can be decided finally and subject to appeal to the Court, while other

theories or parts of the same claim are remanded to the RO for additional development" and did

not contravene Cerullo's prohibition of court and agency action on the same issues). Most

importantly, whatever difficult questions of applying longstanding precedent to evolving law may

await us, the question before the Court today is an easy one. By taking unilateral action on an issue

at the heart of this appeal—action obviously aimed at foreclosing a judicial answer to the

reconsideration question the Court posed for discussion at oral argument—the Board violated

Cerullo.

What's more, the Board and the Secretary know that the unilateral action here was

improper. The Board explains to claimants: "If you file a Notice of Appeal with the Court before

you file a motion with the Board, the Board will not be able to consider your motion without the

Court's permission or until your appeal at the Court is resolved." R. at 6 (emphasis added). VA's

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appeals manual instructs that a claimant's submission that is related to an issue already before the

Court is not to be processed beyond being forwarded to the litigation staff. M21-5, ch. 7, sec. J.1.d.

Even after the Board's unilateral action, the Secretary acknowledged, at oral argument, that the

reconsideration issue was before the Court. When our dissenting colleague asked how this decision

should be written, the Secretary expressly suggested that the Court "hold that if a notice of

disagreement form is filed, the Board should determine whether the duty to sympathetically and

liberally read and construe pro se pleadings would require it to interpret this particular notice of

disagreement as a motion for reconsideration." OA at 45:10-45:34. And that is what the Court is

doing.7

C. Conclusion

A panoramic view of the landscape here is unsettling. The RO ignored the Board's order to

determine substitution and VA denied Ms. Encarnacion's right to notice and an opportunity to

choose whether to be substituted. When she submitted her July 2018 NOD, VA processed it as an

appeal of the RO's June 2018 implementing decision. Twenty months into Ms. Encarnacion's

appeal to this Court and 2 weeks before oral argument, the Board disregarded foundational law

and took unilateral action to reclaim jurisdiction to head off a decision by the Court that might

answer a question the Court had posed regarding whether VA had a duty to sympathetically

construe the appellant's NOD as a motion for reconsideration. The Court declared that the Board's

unilateral action was null and ordered that, for any such action to be effective while the matter

remained pending before the Court, the Board must move for remand so it could take the action,

"in accordance with the procedures spelled out in Cerullo, 1 Vet.App. at 200-01." Court Order,

Oct. 21, 2022. The Board ignored that order. Nonetheless, the Secretary suggested (at oral

7

The dissent's agreement with the parties' statements at oral argument on the application of Cerullo highlights

the importance of adherence to that case. The appellant argued that the Court should remand the case with an order

"direct[ing] VA to issue a decision on substitution and then proceed with the claims with the proper notice," which

would take the case back years before the May 2018 Board decision. OA 20:42-20:52. But the appellant also expressed

concern that, based solely on the Secretary's letter saying he will docket it to consider reconsideration, "it's not clear

how that's going to proceed," since it has "taken decades for the Board to even acknowledge [the appellant's claims]"

and the appellant is concerned that if she appeals the Board's reconsideration decision the Secretary will "argue that

reconsideration was unlawful because it was done while some of the issues were pending before this Court." OA

19:18-20:39. And the Secretary suggested the very Court decision the Secretary then said the Court had no jurisdiction

to render. After the Court remanded the case for the Board to consider whether the appellant's NOD amounted to a

request for reconsideration, as the Secretary said the Court should do, the Secretary argued that VA's decision to treat

the NOD as a motion for reconsideration had stripped the Court of jurisdiction—an assertion that Cerullo expressly

rejected. 1 Vet.App. at 198. We are not holding this up to flex our muscles, post at 30; we must exercise, preserve,

and insist on the Court's jurisdiction to secure compliance.

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argument) that the Court decide that the Board should determine whether the NOD amounted to a

motion for reconsideration. Then, when the Court so decided, Encarnacion v. McDonough,

36 Vet.App. 31, 37–38 (2023), the Secretary moved for reconsideration and argued that the Court

had no jurisdiction to do so. Now, on reconsideration clarifying the Court's decision and its

grounding on Ratliff and Cerullo, the dissent joins VA's "no jurisdiction" chorus.

It is difficult to hear fair process and independent judicial review in their song. What echoes

is the admonition of our predecessors that acceding to VA's assertion that it has the power to

unilaterally order reconsideration of an issue before the Court "would give [VA] the power to

defeat meaningful judicial review and thereby subvert the intention of Congress in enacting the

Veterans' Judicial Review Act." Cerullo, 1 Vet.App. at 198. This decision must reaffirm that

fidelity to the Court's creation and function—to provide independent judicial review—requires

that Cerullo be followed and fairness requires that Ratliff be applied.

FALVEY, Judge, concurring in part and dissenting in part: I agree with the majority that

the Board correctly determined that Ms. Encarnacion could not appeal a ministerial rating decision.

But I disagree with the majority's conclusion that the Board should have assessed, as part of its

decision, whether the July 2018 NOD was a motion for reconsideration (MFR). And thus I

respectfully disagree with the majority's decision to remand.

To start, a remand appears to serve little purpose and it will not affect Ms. Encarnacion's

claim. VA informs us that the Chairman has construed the July 2018 NOD as an MFR. If the

Chairman grants reconsideration, Ms. Encarnacion can pursue her claim before VA. And if the

Chairman denies her MFR, she can appeal the May 2018 Board decision to the Court. A remand

does not affect either of these outcomes.

If anything, a remand only adds steps to the process and orders the Board to determine

whether the July 2018 NOD is an MFR, a determination that the Chairman has already made. But

rather than let the Chairman act on the MFR, the panel decision today puts Ms. Encarnacion a step

back into a strange limbo so that the Board can figure out how to refer a matter to the Chairman

based on an improper appeal from a decision over which the Board lacks jurisdiction. Ms.

Encarnacion would be better off if we affirmed the Board decision on appeal and let the Chairman

act on the motion. That seems like the right thing to do—let her case get to a resolution as quickly

as possible.

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More importantly, I do not believe the decision to remand is legally sound. First, Ms.

Encarnacion did not raise the issue. In briefing, she did not argue that the Board erred by not

considering whether the July 2018 NOD was an MFR. Instead, we injected this issue into the

appeal when we ordered the parties to be prepared to discuss it at oral arguments. But we should

not "takeover [an] appeal" by departing from the issues framed for decision by the parties. United

States v. Sineneng-Smith, 140 S. Ct. 1575, 1581 (2020). "[O]ur adversary system is designed

around the premise that the parties know what is best for them, and are responsible for advancing

the facts and arguments entitling them to relief." Castro v. United States, 540 U.S. 375, 386 (2003)

(Scalia, J., concurring in part and concurring in judgment). That's why "[w]e do not, or should not,

sally forth each day looking for wrongs to right. We wait for cases to come to us, and when they

do we normally decide only questions presented by the parties." United States v. Samuels, 808 F.2d

1298, 1301 (8th Cir. 1987) (R. Arnold, J., concurring in denial of reh'g en banc). And even after

the Court raised the issue here, Ms. Encarnacion still didn't take the bait at oral argument to argue

that the Board erred by failing to consider whether her July 2018 NOD was an MFR.

What's more, it is unclear how the majority obtains jurisdiction to say that the Board erred

in not addressing whether the July 2018 NOD was an MFR. Our jurisdiction derives from decisions

of the Board. 38 U.S.C. § 7252(a). And as the majority explained, the Board reviews all decisions

of the Secretary made under 38 U.S.C. § 511(a). 38 U.S.C. § 7104(a). But determining whether to

grant reconsideration is a Chairman action. 38 U.S.C. § 7103. And "[a]n action by the Chairman

is not a decision of the [B]oard." Mayer v. Brown, 37 F.3d 618, 620 (Fed. Cir. 1994), overruled on

other grounds by Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998). In other words, reconsideration,

and whether something is a document asking for reconsideration, does not fall under the appellate

structure laid out in sections 511, 7104, and 7525, at least not without an appeal of the May 2018

decision.

This is not to say that the Chairman is insulated from appellate review; we do have limited

jurisdiction to review Chairman actions. Wolfe v. Wilkie, 33 Vet.App. 25, 39 (2020). But to review

such actions, the Court must have jurisdiction over the underlying Board decision. Id.; see also

Mayer, 37 F.3d at 620 (explaining that the Court may review action by the Chairman if it has

jurisdiction through an appeal of the underlying Board decision). We all agree that the decision

underlying the July 2018 NOD/MFR–the May 2018 Board decision–is not one over which we

have jurisdiction. So how can we exercise jurisdiction over Chairman actions on it?

27

If the concern is that, without our intervention, Ms. Encarnacion is without remedy, that is

simply not true. If Ms. Encarnacion believed that the Chairman's inaction was undue delay, she

could have petitioned the Court to issue a writ in aid of our jurisdiction. See Monk v. Shulkin,

855 F.3d 1312, 1318 (Fed. Cir. 2017) (noting that the Court can issue writs in aid of its

jurisdiction). I can think of no better example of where a writ would be appropriate than if VA sat

on a motion without action. After all, an unaddressed timely MFR can keep our appellate

jurisdiction in limbo. But Ms. Encarnacion did not ask for a writ.

In short, Ms. Encarnacion did not argue that the Board erred by not considering whether

her July 2018 NOD was an MFR. She did not appeal the May 2018 Board decision underlying the

July 2018 NOD/MFR. And she did not seek a writ arguing that the Chairman's inaction in deciding

whether her July 2018 NOD was an MFR amounted to undue delay. So I do not see how or why

the Court is addressing whether the Board should have considered whether the July 2018 NOD

was an MFR.

To justify our consideration of the issue, the majority reads Ratliff v. Shinseki, 26 Vet.App.

356 (2013), to impose on the Board, as part of its appellate review, a duty to decide whether a

document is an MFR. But Ratliff did not decide the Board's role in the reconsideration process.

Instead, the Court in Ratliff grappled with whether to dismiss an appeal of a July 2008 Board

decision when an NOA was filed with the Court in 2011–well outside the 120-day appeal deadline.

Id. at 357. The Court noted that within a month of the July 2008 Board decision, Ms. Ratliff sent

a document to the RO that said, "I want to appeal," but the RO took no action. Id. We explained

that even though "the Secretary did not take any action with regard to Ms. Ratliff's August 2008

written disagreement, the finality of the July 2008 Board decision remained abated when she filed

an October 2011 NOA with the Court." Id. at 361. Thus, we found that the document was a timely,

but misfiled, NOA, and allowed Ms. Ratliff's appeal to proceed. Id. And we held that,

when a written expression of disagreement with a Board decision is filed at the RO

during the 120–day period to file an NOA, the filing abates finality of the Board

decision for purposes of appealing to the Court until . . . the Board Chairman

determines the status of the document, that is, whether it is a motion for Board

reconsideration, and notifies the claimant of his determination . . . .

Id. at 360-61. But the Board's role in deciding whether a filing is an MFR was not at issue in Ratliff,

nor did the Court decide the matter. Thus, as far as the majority relies on Ratliff to impose on the

Board a duty as part of its appellate review process to consider whether a document is an MFR, it

at best relies on dicta to do so. See United States v. Scophony Corp. of America, 333 U.S. 795, 809

28

(1948) ("Any such ruling necessarily could be no more than dictum, since no such issue was

presented by the facts.").

At their core, our cases like Ratliff or Kouvaris v. Shinseki, 22 Vet.App. 377 (2009), deal with

situations when a claimant has appealed a Board decision to this Court, but the finality of the

decision on appeal has been abated by the filing of a document that could be considered an MFR.

They do not deal with whether the Board errs by not sua sponte deciding if a document is an MFR,

like the majority concludes here.

This is not to say that the Board or the RO acted correctly by ignoring Ms. Encarnacion's

filings. But when that happened in Ratliff, it did not call for a remand. And for good reason–much

as here, a remand would have been pointless. That's because referral of the motion has already

happened and Ms. Encarnacion's MFR is already with the Chairman. Still, the majority invokes

Cerullo v. Derwinski, 1 Vet.App. 195 (1991), to argue that VA's recent actions over the MFR are

invalid. Although Cerullo can be broadly read to stand for the principle that the Board may not

consider an issue over which the Court has exercised jurisdiction, that principle is inapplicable

here.

Cerullo dealt with "whether the Chairman of the Board of Veterans' Appeals may order

reconsideration of a [Board] decision after an NOA from that decision has been filed with this

Court." Id. at 196 (emphasis added). But that's not what happened here. Ms. Encarnacion has not

even tried to appeal the May 2018 Board decision to this Court. So again, how can we exercise

jurisdiction over that unappealed decision and the July 2018 NOD/MFR of that decision, and

prohibit VA from acting on it?

On this point, both parties completely agree that Cerullo does not prohibit the Chairman's

recent actions construing the July 2018 NOD as an MFR because the underlying decision–the May

2018 Board decision–is not on appeal. See Oral Argument (OA) 18:45-19:20, Encarnacion v.

McDonough, U.S. Vet. App. No. 21-1411 (held Oct. 27, 2022), https://www.youtube.com/

watch?v=F3kCvKwo9nQ (counsel for Ms. Encarnacion arguing that Cerullo does not apply and

her current appeal at the Court does not affect the Board's reconsideration of the May 2018 Board

decision); id. at 27:44-27:54 (counsel for the Secretary stating that "we agree with the appellant

that Cerullo . . . would not be applicable here because the 2018 decision has not yet been appealed

to the Court"). I too agree with the parties.

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Ms. Encarnacion has appealed the June 2020 Board decision. Nothing suggests that the

Chairman plans to reconsider that decision. And why would he? We all agree it's correct. Instead,

the Chairman may order reconsideration of the May 2018 Board decision. No NOA from that

decision has been filed with the Court. Cerullo simply does not prohibit the Chairman from

reconsidering a decision that we agree is not on appeal and that we have no jurisdiction over.

Moreover, any reading of Cerullo as prohibiting the agency from acting on any issue that may

relate to any issue before the Court is too broad and legally incorrect.

For starters, the Veterans Appeals Improvement and Modernization Act allows for claims

to be in multiple places at once. So an interpretation of Cerullo that prohibits VA from taking

action on any issue when the same issue is here would throw a major part of the modernized

appeals system out the window. Congress specifically allowed for concurrent proceedings on the

same issue before the agency and a federal court. Mil.-Veterans Advoc. v. Sec'y of Veterans Affs.,

7 F.4th 1110, 1144 (Fed. Cir. 2021).

And, even under the legacy appeals process, VA could split different theories of entitlement

to have the same issue of service connection or effective date simultaneously pending before

various parts of the system. Cerullo could not reasonably be read as prohibiting VA from resolving

a remanded TDIU effective date under 38 CFR § 4.16(a) on a schedular basis while this Court

considers whether the earlier effective date could be granted on an extraschedular basis under

4.16(b). True, VA could moot the effective date question by rendering a decision. But no one

would read Cerullo as prohibiting such a result simply because effective date was before this Court

and VA at the same time.

Ultimately, we are exceeding our jurisdictional limits to adjudicate an argument that neither

party raised to needlessly remand Ms. Encarnacion's claim. Ms. Encarnacion's path forward is

unaffected by our disposition here. If anything, a remand puts her a step further back on that path.

And holding her up to flex our jurisdictional muscles and prove an unnecessary point to the Board

is not doing the right thing in the right way for the right reason. Thus, I respectfully dissent.

30