Annette S. Hubbell v. Douglas A. CollinsAnnette S. Hubbell v. Douglas A. Collins
Appellant Annette S. Hubbell is the surviving spouse of Monte J. Hubbell, who served the Nation honorably in the United States Air Force from January 1965 to October 1968.1 On December 30, 2024, appellant, through counsel, filed a Notice of Appeal, challenging a November 7, 2024, Board of Veterans’ Appeals decision that denied entitlement to service connection for bilateral hearing loss and tinnitus.
On April 28, 2025, in connection with her appeal, appellant filed a request for class certification and class action (RCA). She seeks to certify a class of claimants who did not receive notice of their right to a predetermination hearing before the VA agency of original jurisdiction (AOJ). The Secretary opposes certification, arguing that appellant‘s class definition is too broad, that the requirements for class certification have not been met, and that appellant had actual notice of her right to a predetermination hearing. On May 20, 2025, the Court assigned a panel to decide the RCA. As explained below, because appellant has not met her burden of establishing that class certification is warranted, we will deny the RCA. We do not address the merits of appellant‘s appeal in this decision. We will do so in a separate decision in due course.
In this decision, we will first provide some background information on appellant‘s underlying appeal. We then will detail appellant‘s class certification request and the Secretary‘s response. Next, we will lay out the requirements for class certification and then explain why class certification is not appropriate here.
I. BACKGROUND
In May 2022, the veteran filed a claim seeking service connection for several disabilities, including hearing loss and tinnitus.2 While these claims were pending, the veteran unfortunately
In February 2024, VA denied service connection for tinnitus and deferred a decision on entitlement to service connection for bilateral hearing loss.6 Accompanying that decision was a VA Form 20-0998, a document entitled “Your Right To Seek Review Of Our Decision,” which laid out appellant‘s options for disagreeing with the denial of service connection for tinnitus.7 As appellant notes, this form does not include any information about obtaining a hearing in connection with submitting a supplemental claim, including a right to request such a hearing. In April 2024, VA denied service connection for hearing loss.8 The accompanying notice letter indicates that a VA Form 20-0998 was again enclosed and, just as before, that form does not provide any information about requesting a hearing when submitting a supplemental claim.9 In May 2024, appellant filed a Notice of Disagreement, appealing both the hearing loss and tinnitus claims to the Board and selecting the direct review docket, a selection that did not allow for the submission of additional evidence.10
In September 2024, the Board issued a decision on several of appellant‘s other pending claims.11 In October 2024, the AOJ implemented an award of benefits on those claims.12 That decision included a VA Form 20-0998 that was different from the version appellant received in February and April 2024. Specifically, unlike the forms VA sent appellant earlier in 2024, the October 2024 version explained that “You are entitled to a hearing at any time in the supplemental claim process.”13
In the November 2024 decision on appeal, the Board denied service connection for bilateral hearing loss and tinnitus.14 Appellant appealed that decision to the Court and filed her RCA in the context of this appeal.
II. REQUEST FOR CLASS CERTIFICATION
In her RCA, appellant seeks to certify a class of claimants who:
- received a decision from [a VA AOJ] under the framework of the [Veterans] Appeals Improvement and Modernization Act [of 2017] (AMA), dated prior to August []2024, the date [] VA altered its internal policy/process,
- who did not receive notice of their right to [a] predetermination hearing before the [AOJ],
- appealed the AOJ decision to the [Board],
- have not been granted by the AOJ or the Board a full grant of benefits regarding the claim to which they did not receive adequate notice for, and
- who have not had their cases remanded by the Board to correct the pre[]decisional fair process violation of failing to inform them of their right to a predetermination hearing under the AMA.15
Notes
Appellant argues that before August 2024, VA did not provide claimants with proper notice of their right under
In explaining why class certification is warranted, appellant contends that the class is limited to those who appealed a decision to the Board and, therefore, fall within the Court‘s prospective jurisdiction.20 She also asserts that the alternative class, which is limited to those who have appealed to the Court but not had their claims finally adjudicated, are subject to the Court‘s direct jurisdiction.21 Thus, appellant argues that all members of her proposed class “are under either the Court‘s prospective jurisdiction or the Court‘s direct jurisdiction.”22
She further argues that the proposed class meets the requirements of Rule 23(a) of the Court‘s Rules of Practice and Procedure (Rules).23 Appellant also maintains that proceeding as a
The Secretary contends that appellant‘s class definition is too broad, in part, because it includes claimants over whom the Court does not have jurisdiction.26 Specifically in that regard, the Secretary argues that the class definition includes claimants who have not received a final Board decision.27 Although the Secretary concedes that the numerosity requirement is met, he argues that appellant has failed to meet her burden of establishing that all Rule 23(a)‘s elements are met.28 For instance, the Secretary argues that commonality and typicality are not met because (1) appellant insufficiently addresses these elements by providing only one sentence of argument for each element and (2) the question about whether notice was adequate requires an individualized assessments of each claimant‘s case.29 In fact, the Secretary notes that this need to consider individual circumstances for each claimant with respect to whether any defective notice prejudiced the claimant is the precise reason that a precedential decision, rather than class certification, is the superior way to address this appeal.30
III. ANALYSIS
A. Legal Landscape
Appellant filed her RCA in the context of an appeal before this Court. Therefore, we only have jurisdiction to certify a class of claimants who have all received a final Board decision.31 In Skaar, the Federal Circuit held that the Court‘s authority to establish a class action mechanism “does not provide a cognizable basis for circumnavigating the limits of the Veterans Court‘s statutory jurisdiction.”32 Because our Court has “only one source of jurisdiction:
In addition to this jurisdictional hurdle in the appeal context, to certify a class, the Court must ensure that the requirements of Rule 23(a) of the Court‘s Rules are met.37 The prerequisites for class certification under Rule 23(a) are:
- the class is so numerous that consolidating individual actions in the Court is impracticable;
- there are questions of law or fact common to the class;
- the legal issue or issues being raised by the representative parties on the merits are typical of the legal issues that could be raised by the class;
- the representative parties will fairly and adequately protect the interests of the class; and
- the Secretary or one or more official(s), agent(s), or employee(s) of the Department of Veterans Affairs has acted or failed to act on grounds that apply generally to the class, so that final injunctive or other appropriate relief is appropriate respecting the class as a whole.38
A party seeking class certification must prove, by a preponderance of the evidence, that he or she meets each requirement under Rule 23(a).39 If a claimant fails to meet even one of the requirements, the Court will deny the RCA.
The Court must also consider whether a class action is superior to “a precedential decision granting relief on a non-class action basis.”40 This inquiry involves its own nonexclusive list of factors, which we will discuss below.41
Having set the stage, we will now explain why we conclude that certification of a class in this appeal is not warranted.
We begin with an overarching problem with appellant‘s RCA: It is woefully underdeveloped. And this flaw is no mere technicality because appellant bears the burden of showing why a class should be certified.42 For example, her analysis addressing commonality is set out in a single sentence: “The ‘class question’ raised by this case is whether notice issued to thousands of claimants prior to August []2024 is adequate.”43 This is a 22-word “analysis” that asserts a position with essentially no support. The same is true of her discussion of typicality-- she provides a single sentence on the issue (although this sentence is 26-words long): “As the harm Ms. Hubbell suffered is identical to that of the proposed class, Ms. Hubbell‘s interests are directly aligned with the interests of the class.”44 Again, appellant gives a conclusion on typicality with nothing to back it up. Such a terse analysis of these two important Rule 23(a) factors fails to establish by a preponderance of evidence that class certification is warranted and, as we discuss below, fails to grapple with the larger issues in certifying her proposed class. To state what should be obvious, simply saying something is so isn‘t a substitute for the rigorous analysis the class certification process requires.45
Additionally, as noted above, the Court is required, in the context of an appeal, to ensure that every member of a certified class has a final Board decision.46 In the RCA, appellant acknowledges this limitation on our jurisdiction but still included claimants whose claims are “within the Court‘s prospective jurisdiction” as part of her proposed class.47 Her analysis conflates the Court‘s jurisdiction in the context of a writ of mandamus with Skaar II‘s jurisdictional requirements in the context of an appeal. Skaar made clear that prospective jurisdiction over a claim is not enough to justify including such prospective jurisdiction claimants in a class.48 Appellant largely fails to engage with the Federal Circuit‘s jurisdictional requirements in her RCA, further highlighting the RCA‘s underdevelopment.49
Appellant attempts to bolster her arguments in her reply to the Secretary‘s response to the RCA. For example, she provides more in-depth analysis of commonality and typicality, spanning multiple pages, rather than addressing those requirements in two sentences as she did in the RCA.50 Appellant clarifies her reasons why a class is superior to a precedential decision; however, she still fails to engage with the Skaar I factors.51 It is inappropriate for appellant to expand the arguments in her RCA through her reply brief. This Court will not consider arguments raised in a reply brief for the first time, as it results in piecemeal litigation and deprives the Secretary of an opportunity to respond to these new arguments.52
We could stop here and deny the RCA on its underdeveloped analysis alone. However, as we discuss below, class certification is not warranted on a substantive basis even if we disregard the lack of a reasoned argument in support of granting the RCA.
C. Appellant does not show that the RCA satisfies Rule 23(a)‘s Requirements.
As noted above, appellant must establish all the Rule 23(a) requirements to warrant class certification. If even one of those requirements is missing, the Court will deny the RCA. For that reason, we need not discuss each of Rule 23(a)‘s requirements because we conclude that appellant fails to establish that her proposed class satisfied both the commonality and typicality prerequisites. Either one of these failures is sufficient to deny the RCA.
Class certification requires that “there are questions of law or fact common to the class.”53 The Supreme Court has instructed that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury.‘”54 To meet this prerequisite, a “‘common contention‘” among class members must be of such a nature that it “‘is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each of the claims in one stroke.‘”55
As we discussed above, appellant provided only a single sentence addressing each of the commonality and typicality requirements. She generically asserts that the common question is whether the notice that claimants received before August 2024 was adequate concerning the right to a predecisional hearing and that her interests in that hearing (and notice about it) directly align with the interests of the proposed class.60 But even accepting the broad nature of her arguments that commonality and typicality were established, we still hold that class certification is not warranted because consideration of the predecisional notice at issue here requires a claimant specific analysis, undermining both commonality and typicality.
The circumstances of the notice each claimant received is relevant to whether any error is harmless. Our Court must “take due account of the rule of prejudicial error,”61 and “the burden of showing that an error is harmful normally falls upon the party attacking the agency‘s determination.”62 Therefore, it is not sufficient to say that the proposed class members received inadequate notice of a predecisional hearing; we must also determine that those claimants were harmed by any inadequate notice they received. Making this determination of harm would be different for each claimant because, colloquially speaking, each claimant will have a different story.
Appellant‘s situation illustrates this point. She received a VA Form 20-0998 in both February and April 2024, neither of which included information about obtaining a hearing with the submission of a supplemental claim.63 She later received an updated VA Form 20-0998 with respect to a different claim that informed her of her right to a hearing in the supplemental claim process.64 As appellant acknowledges in her RCA, this updated VA Form 20-0998 is when she became aware of the earlier notice defect.65 The circumstances of appellant‘s case raise questions about whether she was harmed by the defective notice because she may have had actual notice of her right to a predetermination hearing. We make no determination on the merits of the prejudice
Appellant argues that we do not have to consider harmless error. She contends that the question common to all class members is whether class members received inadequate notice concerning a predecisional hearing and that it is of no moment that some of the class members who received that inadequate notice may not have been harmed.66 We disagree. As noted earlier, Congress has mandated that we must consider whether an error is prejudicial.67 And we see no reason, either statutory or as a matter of policy, why that command would not apply in the class action context. Furthermore, as we explain below, the Court has another tool at its disposal to address whether the predecisional hearing notice was adequate and still allow each impacted claimant to have his or her individual circumstances considered: a precedential decision.
In sum, appellant has not established that the commonality and typicality requirements of Rule 23(a) are met. So class certification is not warranted even without addressing the other elements under Rule 23(a).
D. Appellant fails to demonstrate why a class action is superior to a precedential decision.
Finally, when considering a request to certify a class, this Court assesses whether classwide relief is superior to the resolution of a matter through a precedential decision alone. Under Rule 22(a)(3), the superiority requirement is met when “a decision granting relief on a class action basis would serve the interests of justice to a greater degree than would a precedential decision granting relief on a non-class action basis.”68 In Skaar I, this Court outlined a balancing test involving a nonexhaustive set of factors for determining, on a case-by-case basis, whether the presumption against aggregate action has been rebutted.69 The Skaar I factors are
whether (i) the challenge is collateral to a claim for benefits; (ii) litigation of the challenge involves compiling a complex factual record; (iii) the appellate record is sufficiently developed to permit judicial review of the challenged conduct; and (iv) the putative class has alleged sufficient facts suggesting a need for remedial enforcement.70
Appellant fails to show that a class action is a superior means to address the predecisional hearing notice defect issue when compared with issuing a precedential decision standing alone. To begin with, because we lack jurisdiction to certify a class that includes any claimant who does not have a final Board decision, the procedural complexities associated with managing a class action advise against using that device. We can‘t include everyone affected by the error appellant posits
Finally, the Skaar I factors for establishing superiority weigh against class certification in this matter. Although the class issue here (defective notice) is collateral to the putative class members’ individual claims for benefits, the individualized nature of assessing the harm the potentially defective notice caused does not require developing a complex factual record. Indeed, the individualized nature of the prejudice analysis points in the other direction: You would need to develop claimant-specific records. Nor does the Court know—because appellant has not demonstrated—that the record is sufficiently developed for adjudication. From the RCA, we do not know how or if members of the proposed class were harmed by the predecisional hearing notice error. Essentially, we end up exactly where we began our analysis: Appellant‘s RCA is underdeveloped and does not demonstrate that a class action is superior to the issuance of a precedential decision.
IV. CONCLUSION
Because appellant has not met all the Rule 23(a) prerequisites for certifying a class and has not established that a class action would be superior to a precedential decision in addressing the adequacy of notice of a predecisional hearing, we will deny appellant‘s request for class certification and class action.
Accordingly, it is
ORDERED that the request for class certification and class action is DENIED.
DATED: May 13, 2026 PER CURIAM.
Copies to:
Benjamin R. Binder, Esq.
VA General Counsel (027)