Sapp v. Wilkie, 16-2104

CourtCourt of Appeals for Veteran Claims
Writing for the CourtPER CURIAM.
Docket Number16-3558,18-0701,16-2104
PartiesDEBRA B. SAPP, APPELLANT, v. ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, APPELLEE. BETTIE A.P. SAPP, INTERVENOR. AND BETTIE A.P. SAPP, APPELLANT, v. DAVID J. SHULKIN, M.D., SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Decision Date27 November 2019

DEBRA B. SAPP, APPELLANT,
v.

ROBERT L. WILKIE, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

BETTIE A.P. SAPP, INTERVENOR. AND BETTIE A.P. SAPP, APPELLANT,
v.

DAVID J. SHULKIN, M.D., SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Nos. 16-2104, 16-3558, 18-0701

United States Court of Appeals For Veterans Claims

November 27, 2019


Before SCHOELEN, BARTLEY, and MEREDITH, Judges.

ORDER

PER CURIAM.

Here the Court addresses the issue of three docketed appeals that are related to a simultaneously contested claim for survivor benefits. Pending before the Court is the Secretary's opposed February 13, 2018, motion to consolidate two separate appeals by appellant Debra B. Sapp (Debra), #16-3558 and #18-0701. Bettie A.P. Sapp (Bettie), who has intervened in both appeals, filed an opposition.[1] In #16-3558, the Court docketed Debra's appeal of a February 17, 2016, Board of Veterans' Appeals (Board) decision that denied her surviving spouse status and, as a consequence, also denied entitlement to survivor benefits. In #18-0701, the Court docketed Debra's appeal of a separate February 17, 2016, Board decision that recognized Bettie as the veteran's surviving spouse, but denied her entitlement to survivor benefits.

In a third docket that is outside the Secretary's motion to consolidate, #16-2104, Bettie appealed her Board decision, the same Board decision currently on appeal in #18-0701. See Sapp (Bettie A.P.) v. Shulkin, U.S. Vet. App. No. 16-2104 (unpublished order, Feb. 17, 2017). On February 17, 2017, mandate issued in #16-2104 when the Court granted Bettie and the Secretary's joint motion for partial remand (JMPR), vacated Bettie's Board decision as to entitlement to service connection for the veteran's cause of death and remanded that matter, and dismissed the appeal as to the issue of surviving spouse status.

This matter sua sponte was referred to a panel of the Court to address the consolidation motion and to consider the related issues of the import of Bettie's appeal and mandate in #16-2104 and whether VA's undisputed failure to comply with simultaneously contested claims procedures was prejudicial error. We hold that, because, in a simultaneously contested claim context, relevant statutory and regulatory provisions provide heightened notice requirements and special procedures that protect each claimant's opportunity to participate, VA's failure to comply with such procedures in Debra's and Bettie's simultaneously contested claim renders the adjudication process that occurred here unfair and therefore prejudicial.

Although the Secretary asks us to consolidate only Debra's appeals (#16-3558 and #18-0701), the Court concludes, for the reasons discussed below, that consolidation of those appeals is not sufficient to repair the evident prejudice. Rather, because mandate issued in Bettie's own appeal (#16-2104), we conclude that the only way to ensure fundamental fairness is for VA to readjudicate this simultaneously contested claim and ensure that VA's heightened procedural requirements for simultaneously contested claims are satisfied for both Debra and Bettie. Moreover, despite Debra's appeals being at different stages in the appellate process, in light of VA's undisputed failure to follow its own heightened procedural requirements, the Court concludes that dispositive action is proper at this juncture. Accordingly, the Court will deny the Secretary's motion to consolidate #16-3558 and #18-0701; recall mandate in #16-2104; consolidate all three appeals (#16-2104, #16-3558, and #18-0701); set aside both February 17, 2016, Board decisions; and remand these matters for further development, if necessary, and adjudication in accordance with the procedures that govern simultaneously contested claims.

I. BACKGROUND[2]

A. Procedural Background Prior to the February 2016 Board Decisions

Veteran Donald W. Sapp served in the U.S. Army from April 1968 to December 1969, including service in the Republic of Vietnam. Appellant's Brief (Br.) in #16-3558 at 2.[3] In a February 2006 rating decision, a VA regional office (RO) granted him service connection for type II diabetes mellitus, hypertension, upper extremity peripheral neuropathy, left leg amputation, and erectile dysfunction. Intervenor's Br. at 2-3. On April 30, 2010, Mr. Sapp died. Secretary's Br.[4]at 3.

In May 2010, Debra and Bettie each filed an application for entitlement to survivor benefits as the veteran's surviving spouse. Id. at 3. In July 2010, the RO issued two separate decisions. Intervenor's Br. at 3. One decision was issued only to Bettie, denying her surviving spouse status. Id. And a separate decision was issued only to Debra, denying her surviving spouse status on a different basis. Id. Both appellants submitted timely Notices of Disagreement (NODs) as to their respective decisions and each requested a decision review officer (DRO) hearing. Id. at 3-4.

In January 2011, Debra testified at a DRO hearing and in April 2011 Bettie testified at a DRO hearing. Secretary's Br. at 5. In December 2011, the RO issued separate Statements of the Case (SOCs) to Bettie and Debra, continuing its denials of spousal status on separate bases. Id. at 6. Neither SOC referenced VA's procedures on simultaneously contested claims nor did VA send the individual SOCs to both parties. Id. at 6, 16. Both timely perfected their independent appeals to the Board the next month. Id. at 6.

In October 2012, Bettie and Debra testified at separate Board hearings on different days before the same Board member (Board member John Crowley); however, due to technical difficulties with VA's recording system, Debra's hearing was not properly recorded and a transcript could not be rendered. Id. at 6.[5] Therefore, Debra was offered an opportunity to appear at a second Board hearing, and she responded indicating that she wished to appear at a second hearing. Accordingly, in July 2013, the Board issued a single decision captioned with both appellants' names and sent to both appellants, remanding the case to allow Debra to appear at a second Board hearing. Id. at 7.

In September 2013, Debra testified at a second Board hearing before Board member Eric Leboff. Id.[6] In August and November 2014, the Board informed Bettie and Debra respectively of their right to a new hearing because they participated in separate hearings before two different Board members and the law required that the Board member who conducts a hearing on appeal must participate in any decision made on that appeal. Id. Bettie waived her right to another Board hearing and Debra requested a third Board hearing. Id. In January 2015, the Board issued a single decision, captioned with both appellants' names and sent to both appellants, remanding the case to conduct Debra's hearing, which occurred in November 2015 with Board member Crowley. Id. at 7-8; see Debra's February 2016 Board decision at 2.

On February 17, 2016, the Board issued two separate decisions, but both contained the same Board docket number. The first decision, rendered by Board member Crowley, granted Bettie recognition as the veteran's surviving spouse, but denied her entitlement to service connection for the cause of the veteran's death.[7] The second decision, rendered by a panel of three Board members including Board members Crowley and Leboff, denied Debra surviving spouse status and denied entitlement to survivor benefits as a matter of law.[8] The Board provided a copy of the first decision to Bettie only and a copy of the second decision to Debra only. Secretary's Br. at 8.

B. Procedural History Following the February 2016 Board Decisions

Following the Board's issuance of two separate decisions, the appellants took different paths to contest the portions of the separate Board decisions that were adverse to their respective claim for survivor benefits, which resulted in three docketed appeals: #16-2104 (Bettie's appeal of her Board decision); #16-3558 (Debra's appeal of her Board decision); and #18-0701 (Debra's appeal of Bettie's decision). Below, the Court will describe the key events involved in all three docketed appeals, in chronological order. For clarity purposes, the Court will also provide a timeline of key events in an appendix.

On April 19, 2016, the Board Chairman received self-represented Debra's motion for reconsideration as to her February 2016 decision. #16-2104 Secretary's Opposed Motion to Stay Proceedings (July 22, 2016) Exhibit 2.

On June 16, 2016, Bettie, through counsel, filed a Notice of Appeal (NOA) with this Court as to her Board decision, and the Court thereby opened #16-2104. U.S. Vet. App. Docket No. 16-2104.

On July 22, 2016, the Secretary filed, in #16-2104, an opposed motion to stay proceedings pending disposition of Debra's motion for reconsideration, because the disposition "could affect the nature of the appeal before the Court." #16-2104 Secretary's Opposed Motion to Stay Proceedings at 2.

On August 26, 2016, the Court granted the Secretary's motion to stay proceedings in #16-2104 and ordered the Secretary to advise the Court of the Board Chairman's decision on Debra's motion for reconsideration. #16-2104 August 26, 2016, Court Order.

On September 9, 2016, the Board Chairman denied Debra's motion for reconsideration. #16-2104 Secretary's Response (Sept. 26, 2016) at 3-4. The Chairman also noted that an August 8, 2016, letter had been sent in error and was superseded by the September 9 letter.

On September 26, 2016, the Secretary notified the Court of the Board Chairman's denial of Debra's motion for reconsideration. #16-2104 Secretary's Response (Sept. 26, 2016).

On October 17, 2016, the Court lifted the stay of proceedings in #16-2104 pursuant to the Board Chairman's denial of reconsideration and ordered Bettie to file her principal brief within 60 days. #16-2104 Court Order (Oct. 17, 2016).

Also on October 17, 2016, self-represented Debra filed an NOA...

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