Hassan v. McDonough
| Decision Date | 19 March 2021 |
| Docket Number | 20-2556 |
| Parties | John P. Hassan, Appellant, v. Denis McDonough, Secretary of Veterans Affairs, Appellee. |
| Court | United States Court of Appeals For Veterans Claims |
Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.
John P. Hassan VA General Counsel
Before MEREDITH, Judge.
The pro se appellant, John P. Hassan, appeals a March 30, 2020, Board of Veterans' Appeals (Board) decision that dismissed his appeal as to entitlement to special monthly compensation (SMC) based on loss of use of the left eye. Record (R.) at 2-7. This appeal is timely, and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App 23, 25-26 (1990). For the following reasons, the Court will vacate the Board's decision and remand the matter for further proceedings consistent with this decision.
The appellant served on active duty in the U.S. Army from June 1952 to April 1954. R. at 3272. He has been service connected for residuals of chorioretinitis of the left eye from April 1954. R. at 103-04. On January 28, 2014, he requested SMC and asserted that he was totally blind in his left eye, R. at 1726-27, 1730; at the time, his left eye condition had been evaluated as 10% disabling from July 1973, R. at 103. A VA regional office (RO) denied entitlement to SMC, R. at 1514-16, 1526-30, and he perfected an appeal to the Board, R. at 1379-83, 1473-91, 1512-13.
In August 2017, the Board denied entitlement to SMC. R. at 1323-25. On appeal, the Court granted the parties' joint motion for remand, R. at 1286-97, and the Board later remanded the matter to the RO for additional development, R. at 1273-77. In a January 23, 2020, rating decision, the RO granted entitlement to SMC based on loss of use of the left eye and increased the appellant's schedular disability rating for his left eye disability from 10% to 30%, both effective from January 28, 2014, the date the appellant requested SMC. R. at 103-09.
The RO also issued a Supplemental Statement of the Case (SSOC) on January 24, 2020, in which it initially identified the issue on appeal as entitlement to a rating in excess of 10% prior to July 11, 1973, for residuals of chorioretinitis of the left eye, and indicated that the appeal had been remanded by the Board in August 2018. R. at 88; see R. at 86-96. However, in the decision portion of the SSOC, the RO addressed both a rating in excess of 10% prior to July 1973 and a rating in excess of 30% from January 28, 2014. R. at 94-95. The SSOC also informed the appellant that (1) if he continued to disagree with the decision, he may opt in to the modernized appeals process and (2) "[a] separate action has been taken to increase the evaluation of this condition[ and that he] will receive a separate notification of the award action when it is taken." R. at 95.
In February 2020, the appellant submitted a Notice of Disagreement (NOD) seeking direct review by a veterans law judge at the Board, and attached a handwritten statement expressing entitlement to retroactive benefits for loss of use of his eye. R. at 33-36. The RO issued another SSOC the following month, which again referred to the Board's August 2018 remand. R. at 16; see R. at 12-22. However, the RO then noted that the "purpose" of the SSOC was to inform the appellant that the January 2020 SSOC had been issued in error and should be disregarded. R. at 22. The RO further noted that the issue listed above-entitlement to a rating in excess of 10% prior to July 11, 1973, for residuals of chorioretinitis of the left eye-"was not on appeal." R. at 22.
On March 30, 2020, the Board dismissed the appellant's appeal as to entitlement to SMC based on the loss of use of his left eye. R. at 3-4. In this regard, the Board stated that, in the R. at 4. Regarding the January 2020 SSOC, the Board noted that it was purportedly issued in connection with the SMC issue remanded by the Board, but instead "identified the issue as entitlement to an increased rating for the [appellant's] left eye disorder"; the Board stated that "[n]o such issue is on appeal." R. at 4. Accordingly, the Board found that there is no case or controversy within its jurisdiction and dismissed the appeal. R. at 4. This appeal followed.
In his informal brief, which the Court liberally construes, the pro se appellant argues in part that the Board, in dismissing his appeal, ignored that he had requested retroactive compensation and asserts that he is entitled to SMC prior to January 28, 2014. Informal Brief (Br.) at 1-3; see De Perez v. Derwinski, 2 Vet.App. 85, 86 (1992). He thus asks the Court to order VA to assign an earlier effective date and to provide him with competent representation.[1] Informal Br. at 3.
In response, the Secretary asserts that there is no authority for VA to appoint a representative for the appellant, but he otherwise concedes that the Court should vacate the Board's decision and remand the matter for additional proceedings. Secretary's Br. at 5-12. In that regard, the Secretary maintains that the appellant filed an NOD seeking SMC prior to January 28, 2014, and thus the Board failed to adequately explain why there is no case or controversy. Secretary's Br. at 7-8. The Secretary further concedes that because SMC is an issue within an increased rating claim, the Board should have considered whether the appellant filed a claim for an increased disability rating for his left eye condition earlier than January 2014 or, at a minimum, considered 38 C.F.R. § 3.400(o)(2), which allows under certain circumstances an effective date up to 1 year prior to the date of a claim for increase. Secretary's Br. at 9.
"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 order) (per curiam). "This 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). Here, the Board's determination that no case or controversy exists is tantamount to a determination that there is no matter over which it may assert jurisdiction, which the Court reviews de novo. Evans v. Shinseki, 25 Vet.App. 7, 10 (2011) (); see Harper v. Wilkie, 30 Vet.App. 356, 359 (2018).
As indicated above, the Board determined that the January 2020 grant of SMC as of "the date [the appellant's] claim for SMC was received by VA . . . is considered to be a total grant of benefits sought" and thus concluded that there is no case or controversy within the Board's jurisdiction. R. at 4. The Court disagrees. As the Secretary concedes and the record reflects, the appellant filed, in February 2020, an NOD seeking direct review of the effective date assigned to his award of SMC. R. at 35 (); see Palmer v. Nicholson, 21 Vet.App. 434, 436 (2007) (); see also R. at 33-36; Secretary's Br. at 7. The Board did not acknowledge the appellant's NOD or otherwise explain why there is no controversy regarding the effective date for the grant of SMC. See King, 19 Vet.App. at 410 ("[T]he Board-even when it is denying jurisdiction-is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record . . . .").
In that regard, the Secretary further concedes that, to the extent that SMC may be considered part of a claim for increased compensation, see Akles v. Derwinski, 1 Vet.App 118, 121 (1991) (), the Board should have addressed whether the appellant sought SMC through an increased rating claim for his left eye disability prior to January 2014 or whether 38 C.F.R. § 3.400(o)(2) applied. See Secretary's Br. at 8-10. The Court will accept the Secretary's concession, vacate the Board's decision, and remand the matter for consideration of the appellant's February 2020 NOD and the issues conceded by the Secretary. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ()....
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