Encarnacion v. McDonough
| Decision Date | 18 May 2023 |
| Docket Number | 21-1411 |
| Parties | Carmen L. Encarnacion, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee |
| Court | Court of Appeals for Veteran Claims |
Argued October 27, 2022 [*]
On Appeal from the Board of Veterans' Appeals
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.
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 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.
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 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 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.
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 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), "[...
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