Hamilton v. Brown

• Decision Date: 08 November 1994
• Docket Number: 93-7091,Nos. 93-7090,s. 93-7090
• Citation: 39 F.3d 1574
• Parties: Stanley A. HAMILTON and Michael J. Hermann, Claimants-Appellants, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1574

39 F.3d 1574

Stanley A. HAMILTON

and

Michael J. Hermann, Claimants-Appellants, v. Jesse BROWN, Secretary of Veterans Affairs, Respondent-Appellee.

Nos. 93-7090, 93-7091.

United States Court of Appeals, Federal Circuit.

Nov. 8, 1994.

Gershon M. Ratner, National Veterans Legal Services Project, of Washington, DC, argued for claimant-appellant, Hamilton. Of counsel were Ruth Eisenberg and Arnette L. Georges. Glen Patrick McGrath, Lawrence J. Smith & Associates, of New Orleans, LA, was on the brief for claimant-appellants, Hermann.

Martin F. Hockey, Jr., Attorney, Commercial Litigation Branch, Dept. of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Frank W. Hunger, Asst. Atty. Gen., David M. Cohen, Director and Thomas W. Petersen, Asst. Director. Of counsel were Donald E. Zeglin and Nicole Sideris, Dept. of Veterans Affairs, Washington, DC.

Before ARCHER, Chief Judge ¹, MAYER, Circuit Judge, and PLAGER, Circuit Judge.

PLAGER, Circuit Judge.

These consolidated appeals raise the question whether, for jurisdictional purposes, there can be more than one Notice of Disagreement (NOD) relating to the same claim. Stanley A. Hamilton appeals the judgment of the Court of Veterans Appeals dismissing his appeal for lack of jurisdiction. That judgment was entered May 13, 1993, 4 Vet.App. 528, pursuant to the opinion of the court dated April 15, 1993. Hamilton v. Brown, 4 Vet.App. 528 (1993) (in banc ). Michael J. Hermann appeals the judgment of the Court of Veterans Appeals dismissing his appeal for lack of jurisdiction. That judgment was entered June 2, 1993, 5 Vet.App. 275, pursuant to the court's May 6, 1993 order dismissing the appeal for lack of jurisdiction in light of the decision in Hamilton, supra. Hermann v. Brown, 5 Vet.App. 275 (1993). We affirm.

BACKGROUND

1.

The Veterans Administration, now the Department of Veterans Affairs (DVA or Agency), long utilized a document called the Notice of Disagreement (NOD) as the vehicle by which a veteran, aggrieved by the initial determination of a DVA office, would announce the intention to administratively appeal that initial determination. As 38 U.S.C. Sec. 7105(a) (Supp. IV 1992) ² provides, "[a]ppellate review will be initiated by a notice of disagreement...." A NOD is defined by DVA regulations as "[a] written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction [AOJ] and a desire to contest the result...." 38 C.F.R. Sec. 20.201 (1993). ³ An AOJ is defined as the DVA "regional office, medical center, clinic, cemetery, or other Department of Veterans Affairs facility which made the initial determination on a claim...." 38 C.F.R. Sec. 20.3(a).

An administrative appeal proceeds through an elaborate set of steps before ending up in the Board of Veterans' Appeals (BVA or A statement of the case shall include the following:

Board) for final disposition. First, the Agency reviews the NOD and attempts to resolve the dispute. See 38 U.S.C. Sec. 7105(d)(1). If that is not possible, the Agency issues a "statement of the case" (SOC) to the veteran. See 38 U.S.C. Sec. 7105(d)(1)-(3). The SOC essentially sets forth the Agency's legal and factual position in relation to the disagreement. Its function is to give the veteran information with which to evaluate the feasibility of pursuing his claim. As the statute puts it:

(A) A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed.

(B) A citation to pertinent laws and regulations and a discussion of how such laws and regulations affect the agency's decision.

(C) The decision on each issue and a summary of the reasons for such decision.

38 U.S.C. Sec. 7105(d)(1); see also 38 C.F.R. Sec. 19.29.

Then, assuming the veteran continues to dispute the claim, the veteran perfects the appeal by filing a "substantive appeal." See 38 U.S.C. Sec. 7105(a)-(d)(3). Agency regulations define a "substantive appeal" as a "properly completed VA Form 1-9, 'Appeal to Board of Veterans' Appeals,' or correspondence containing the necessary information." 38 C.F.R. Sec. 20.202. Under applicable law, this documentation "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. Sec. 7105(d)(3); see also 38 C.F.R. Sec. 20.202. It is not uncommon for the BVA to then remand cases to the AOJ for further findings, and for readjudication of the case. When there is additional development of the record on remand, the Agency will issue a "supplemental statement of the case" (SSOC). See 38 C.F.R. Sec. 19.31. The SSOC is essentially an update of the Agency's position in light of the additional development.

Effective September 1, 1989, Congress established the Court of Veterans Appeals to provide for the first time a judicial appeals process to be utilized in veterans benefits matters. See Sec. 301(a) of the Veteran's Judicial Review Act (VJRA), Pub.L. No. 100-687, Sec. 301(a), 102 Stat. 4105, 4113-4121 (1988) (codified as amended at 38 U.S.C. Sec. 7251 et seq. (1988)). Exclusive but limited appellate jurisdiction to review Court of Veterans Appeals decisions was bestowed upon the Court of Appeals for the Federal Circuit. Id.

Congress was concerned that the Court of Veterans Appeals would be overwhelmed with cases already in the pipeline. 134 Cong.Rec. S16650 (daily ed. October 18, 1988) (statement of Sen. Cranston). The DVA was not noted for swift disposition of its administrative appeals, so that a substantial number of stale cases were still working their way through the bureaucracy. See Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991). Accordingly, Congress mandated that only cases "in which a notice of disagreement [has been] filed under section 7105 ... of title 38, United States Code, on or after [November 18, 1988]" would be heard by the Court of Veterans Appeals. See Veteran's Judicial Review Act Sec. 402; 38 U.S.C. Sec. 7251 note.

Since that time, a number of pre-1988 cases have arisen in which an initial Agency determination was made adverse to the veteran; the veteran filed a NOD prior to November 18, 1988; the case eventually proceeded through the various review steps and was remanded by the Board to the unit that made the initial decision for further findings. Then, if the veteran was still dissatisfied, the case would work its way back up through the system to the BVA for final disposition. Along the way, the veteran would file one or more written documents objecting to the determination on remand. If, as occurred in a number of cases, these new documents were executed on or after November 18, 1988, the veteran would claim entitlement to be heard before the Court of Veterans Appeals on the theory that there was a post-November 17, 1988 NOD.

In Whitt v. Derwinsky, decided by the Court of Veterans Appeals in 1990, the court rejected the argument of the Secretary that the only valid jurisdictional NOD is the first NOD filed in response to the initial AOJ adjudicative determination. 1 Vet.App. 40, 42-43, in banc review denied, 1 Vet.App. 94 (1990) (with Steinberg, J., dissenting from denial). The court held that "there can be more than one NOD filed under certain circumstances with respect to the same claim." Id. at 42. As a consequence, any document that meets the regulatory definition, i.e., a written communication expressing disagreement with an "adjudicative determination" of the AOJ, was considered valid for purposes of conferring jurisdiction on the court.

In 1992, this court decided Strott v. Derwinski, 964 F.2d 1124 (Fed.Cir.1992). In Strott, the question was whether any one of two documents executed by Mr. Strott qualified as a post-November 17, 1988 jurisdictional NOD. The first was filed in 1985, and clearly failed the test. The second--a Form 1-9, indicating Strott's dissatisfaction with the regional office's determination on remand from the BVA--was filed in 1989. An appeal was taken to the Court of Veterans Appeals from the final decision of the BVA; the court held that the 1989 document did not qualify as a NOD for several reasons. We affirmed. ⁴

Subsequently, the government moved to vacate the decision in Whitt on the ground that the facts in Whitt were essentially identical to those in Strott, and therefore Strott decided the Whitt matter. This court in a single judge nonprecedential order granted the government's motion, and remanded the case to the Court of Veterans Appeals with instructions to dismiss Whitt's appeal. Whitt v. Derwinski, 979 F.2d 215 (Fed.Cir.1992) (Table).

2.

Hamilton served in the United States Army from September 1967 to September 1969. He was stationed in Vietnam from January to September 1969 with the principal duty assignment of small arms repairman in a maintenance battalion assigned to the 1st Infantry Division. In May 1985, he filed a claim with the Manchester, New Hampshire regional office (RO) of the DVA alleging service connected post-traumatic stress disorder (PTSD). In September 1985, the RO denied the claim after concluding that the alleged disability "is the result of the veteran's own misconduct--alcoholism." In April 1986, Hamilton filed a statement seeking to reopen the claim. In May 1986, the RO affirmed its previous denial.

Hamilton then filed a NOD dated June 17, 1986. The RO responded with a SOC dated June 30, 1986. In that document, the Agency concluded that "[s]ervice connection for a nervous condition to include Post-Traumatic Stress Disorder is not warranted." In July 1986, Hamilton perfected an appeal to the Board by filing a Form 1-9 in which he requested an oral hearing.

A hearing was conducted at the RO on September 24, 1986. Hamilton participated as a witness. On February 20, 1987, the Agency...