Denise Jarrell v. R. James Nicholson

JARRELL, Denise Appellant,

R. NICHOLSON, James Affairs,

of Veterans Appellee.

No. 03-0752.

United States Court of Appeals

for Veterans Claims.

Argued July 2005.

Decided Aug. Kan- Topeka, Carpenter,

Kenneth M. sas, appellant. for Tim Derr, S. with whom Lavinia A. Counsel; Randall R. McClain, General Counsel; and General Assistant Campbell, Assistant Deputy Washington, Carolyn F. D.C., Counsel, Washington, all of General briefs, appellee. were GREENE, Judge, Chief Before MOORMAN, HAGEL, KASOLD, SCHOELEN, DAVIS, LANCE, Judges.* Appeal from On Appeals. Veterans’ KASOLD, Judge: through appeals Jarrell Denise Veteran Veter- Board of January counsel that, (Board) inter decision Appeals ans’ no clear alia, that there was concluded (CUE) January in a error unmistakable (RO) office VA regional psy- disability compensation denied set For reasons disorder. chiatric January 2003 decision below, the forth and the part in set aside Board will appeal dismissed.1 BACKGROUND I. Navy in the U.S. served Ms. Jarrell Her to March 1954. August from * defined vacate” verb “to changeably. The replaced Chief Hagel Judge June On invalidate,” void; canсel; nullify, make as- "to panel that was Steinberg Judge defined aside” is July phrase set "to appeal. On while the verb this signed to decide order, (a judgment, heard or vacate arguments before “to annul were oral Kasold, It Hagel, etc.).” and Lance. Judges panel Dictionary Law Black's matter ed.1999). that this distinc (7th that no subsequently determined We was conclude consideration. for en banc "vacate.” appropriate "set aside” exists between part FCC, Steinberg took no Judge 444 F.3d Corp., Chief Tel. Virgin Islands appeal. (" usually disposition (D.C.Cir.2006) ‘Set aside’ SEC, ”); Checkosky ‘vacate.’ means 7261 instructs Although ir.1994) ("Setting (D.C.C aside deci- to “set aside” cases appropriate Court meaning appar vacating; no other action, means taking such sions of used in ent.”). can be Although both terms “va- traditionally used term Court lan terchangeably, to be сonsistent uses The Court that action. cate” to describe for the Congress, guage employed inter- "set aside” “vacate” and the terms

service medical records disclose no evi- raised this new of CUE in her psychiatric dence of a upon disorder Substantive Appeal; her 2003 the Board entry adjudicated rejected separation into or from both service. theories. She was, however, treated for anxiety during Court, On Ms. Jarrell ar service on three In August occasions. gues solely that the Board erred in its 1955, Ms. Jarrell filed claima for disability adjudication of her for revision compensation benefits under theory for a “nervous con- that the 1956 RO failed (R.) dition.” consider the presumption Record at 72-75. In January sound con dition 1956, under theory 3.63—the disability RO denied compensa- CUE first in her Appeal. Substantive tion “psychosis, undifferentiated, initiаlly She sought argued, reversal and complete remission” because Ms. Jarrell’s alia, inter that the 2003 Board misinter “nervous condition was not incurred preted presumption-of-soundness re aggravated by R. service.” at 112-14. quirements under 3.63. Appellant’s Brief Ms. Jarrell did not decision. (Br.) at 1-11. In her reply brief, however, 1997, In June Ms. Jarrell through filed Ms. Jarrell modifies her request so as to counsel a request for revision of Janu- seek remand instead of pres reversal and ary 1956 RO decision on the basis of ents a new argument the Board is CUE.2 In 1997, November she required “readjudicate submitted appellant’s further argument in support claim of CUE” her re- under the standards set quest, forth in Moody wherein specifically she v. argued Principi, 360 F.3d 1306 (Fed.Cir.2004), Szemraj RO had not Principi, 357 regu- followed controlling (Fed.Cir.2004), F.3d 1370 lations regarding Roberson v. service connection for Principi, (Fed.Cir.2001). 251 F.3d 1378 diseases noted in sеrvice or within the presumptive period thereafter and cited to 15, April 2005, On the Court ordered Gober, Savage v. 10 Vet.App. (1997), supplemental briefing to jurisdic- address 3.307(c) (1955). §§ and 38 3.303, C.F.R. tion. Both parties argue that the Board February 1999, adjudicate may the RO a request denied the request. for revision of an 14, 1999, On RO decision June Ms. based on a Jarrell filed a CUE No- previously presented (NOD) tice of Disagreement to an ifRO the claim- with the Feb- ant waives initial ruary by RO RO. decision. In July Ms. position This was echoed parties Jarrell through filed the same her counsel oral argument, during which Ms. Jarrell Appeal Board; Substantive therein, expressly asserted her knowing and volun- in addition to the theory of present- CUE tary waiver of RO consideration. RO, ed to the Ms. Jarrell raised for the first time that the 1956 RO committed II. ANALYSIS CUE failing to consider the presump- A. Revision of Decisions Based on sound CUE upоn condition entry into service under 38 C.F.R. 3.63 Prior November there was The Board acknowledged that Ms. Jarrell no statutory authority allowing a final RO purpose case, deciding the Court will appropriate. Livesay See Principi, 15 Vet. use the term "set aside.” (2001) (en App. banc) ("a request for previous revision of a decision on the basis of 2. Although request for revision on the basis application is not an any or claim for of CUE frequently referred to as a "CUE benefit under the laws administered CUE,” claim” or a "claim of the Court will (internal Secretary” quotations omitted)). statutory use the and regulatory language, as Secre- of the decision prior revision on the attacked collaterally to be 51, title chapter under tary made howev- at least Since of CUE. basis Board, U.S.Code, a decision the revi- provided er, regulations VA of CUE. the basis product respectively, were the of decisions sion 1(b), 105-111, 111 Stat. See Vet- Pub.L. error.” unmistakable “clear 1997). sections (Nov. 21, Although both § 7155 Regulation Benefits erans authority to (Veterans essence, same provide, No. (1928); Exec. Order 1933); of an 2a) final decisions (July collaterally attack No. Regulation differ, they respectively, or the Russell RO banc) language (en (holding that appeal, to this relevant for revision 3.105(a), request for revision allows each instructing § which how C.F.R. CUE, a Sec- adjudicated. of on basis decisions shall be RO of authority 5109A(e) for request that a Secretary’s states exercise valid in the absence on the basis decision even of an RO regulations, revision prescribe to the authority). statutory be submitted express “shall manner in the same decided be shall 1994, on the for revision requests Until contrasts This claim.” any other aor аn RO decision that either basis request that 7111(e), states a which section and unmis- clear contained decision Board on decision aof Board for revision to this made pursuant were error takable directly submitted “shall be of CUE basis However, in Smith authority. regulatory by the be decided and shall Board Brown, (William) the U.S. Court v. merits, referral without Board on (Federal Federal for the Circuit Appeals acting hearing official adjudicative or any Circuit) authori- regulatory that ruled Secretary.” behalf of on only to 3.105(a), applies § ty, specifically that Board decisions and office request a that requires 5109A Section final unless reconsideration are decisions on the decision RO of a final for revision Chairman, the deci- Board ordered to the submitted be “shall” basis of CUE Board, or sponte sua is vacated sion requires Secretary; section 7111 or remand- is reversed Board decision deci- a final Board for revision request 1516, 1520- See 35 F.3d by the Court.3 ed sub- “shall” be of CUE the basis on sion (Fed.Cir.1994). Circuit The Federal 21 and, specifi- Board directly to the mitted (an a trial court body akin to noted Although Secretary. cally, not RO) decisions ren- review properly cannot exclude explicitly does not 7111 section Board) (the body appellate dered its submission the direct See id. over it. instance, a re- the first consideration of CUE the basis on revision quest for 21, 1997, enact- Congress On November 5109A, per- section decision under an RO title 5109A ed sections contravene action would mitting such for the U.S.Code, allow expressly 5108; evidence, 38 U.S.C. and material veteran-friendly administrative Within the 3.156(a) (2005), or Cook, supra; 38 C.F.R. having means to setting, are numerous there any regardless of sponte, may sua In addi readdressed. a final Board reconsideration, obvious correct (William), motion Smith stated in tion to methods 7103(c); v. errors, Hazan see 38 U.S.C. 1520-21, prior decision can F.3d 35 (1997); Gober, see also 522 CUE, 38 U.S.C. based on reversed revised Nicholson, DiCarlo 7111; Cook v. exceptions to recognized (setting forth banc); (en C.F.R. (Fed.Cir.2002) finality). the rule (2005), reopened based new § 20.1400 express requirement 5109A(e) in section every tion with part other or section so as request under that section “shall” produce a harmonious whole” “the be submitted to the Secretary. court will only consider particular Splane West, 216 F.3d 1068-69 statute in question, but also the entire (Fed.Cir.2000) (“canons of construction legislative scheme of which it is a part”). ... require give us to effect to clear Whereas section 7111 a specific describes language of a statute and avoid rendering procеdure adjudication for the a request any portions meaningless or superflu for revision of a Board decision based on ous”). Additionally, section 7111 by its CUE, 5109A(e) section requires that a re- only speaks terms prior deci quest for revision based CUE “shall be sions and it evinces no authorization for decided the same manner any other the Board to consider in the first instance claim.” Section part 5109A is of chapter anything other than a for revision title U.S.Code, as 5104(a), is section of a previous Board decision based on which controls of claims CUE. See Shoshone Indian Tribe Secretary. Section requires States, (Fed. United that the Secretary notify a claimant of the Cir.2004) (Court presumes “that ‘Con Secretary’s decisions affecting provi- the gress expresses its intent through the sion of benefits made under 511(a), section language it choоses’ and that the choice 38, 511(a) title U.S.Code. Section requires of words in a statute is therefore deliber Secretary questions decide all of law ate and reflective” (quoting INS v. Car and fact necessary a by decision doza-Fonseca, 421, 480 U.S. 12, 433 n. Secretary under the law that affects the 436, 1207, 107 S.Ct. 94 L.Ed.2d 434 provision by of benefits the Secretary. (1987))). 1. Board Jurisdiction Over a Claim reading This of sections 5109A 7111 Although the term “claim” is not defined is also consistent with the statutory 38, U.S.Code, in title section 5100 defines scheme. See King v. St. Vincent’s Hosp., “claimant” “any individual for, applying 215, 221, 502 U.S. 112 570, S.Ct. 116 or submitting for, a claim any benefit un- (1991) (when L.Ed.2d 578 interpreting a der the laws by administered statute, the Secre- the Court is required to look at tary,” which necessarily suggests context a provisions and the of law as a claim is one for whole); a benefit. 38 Imazio U.S.C. Nursery, Inc. v. Dania § 5100. This Greenhouses, suggestion (Fed.Cir. adopted 69 by F.3d 1564 1995) (all parts his implementing of a regula- statute must be con tions which together strued define a “claim” without according undue written importance request for single to a or “determination of portion); isolated entitlement see ... also Derwinski, Gardner v. to a benefit.” § 1 38 Vet.App. C.F.R. 3.1(p) (1991) (2005); 586 20.3(f) see (“Determining § also 38 (2005) statute’s C.F.R. plain meaning requires (defining as, examining alia, “claim” spe inter an “applica- cific language at and the made overall under title United States statute.”), structure of the Code, sub nom. implementing directives for en- aff'd Brown, Gardner v. (Fed.Cir.1993), benefits”). 1456 titlement to [VA] Claims for d, 115, 115 513 U.S. 552, benefits, S.Ct. necessarily, aff' are submitted to and 130 (1994); L.Ed.2d 462 2A N. adjudicated by Singer, RO, which acts on be- Statutory Sutherland half of the Secretary. 38 U.S.C. Construction Cf. (6th § ed.2000) (“each 46:05 part 5103(a) or section (Secretary shall take certain ac- of a statute should be construed in cоnnec- tion “[u]pon receipt complete or sub-

331 [that] tribunal appellate an primarily for bene application” complete stantially entity ‘on deciding fits). can make the RO serves as is so that This ‘subject to referred question review or determination” Secretary’ “initial 7105(b)(1), against in 38 U.S.C. Secretary’ under [section] by the (NOD) may be Disagreement a Notice Moreover, 511(a).”). axiomatic it is See God review. ‍​‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌‌​​​‌‌​​​​‌​​‌‌‌​​‌​‌​​‌‌​‌‌‍appellate initiate filed to authorizing oth legislation the absence (1995). Brown, 410 Vet.App. 7 frey v. be conferred— erwise, cannot jurisdiction RO, by the adjudicated jurisdiction a claim is Once the lack nor can unless final becomes that decision Johnson v. See parties. waived— decision. See appeals (citing Brown, 7105(c). appel request for U.S.C. Co., Light Power v. Utah & Basso initiated late review Cir.1974) (“Lack (10th 906, 909 F.2d by filing completed and is an NOD filing jurisdic be waived ‘cannot 38 U.S.C. Appeal. Substantive upon a federal be conferred tion cannot 7105(a). ap ” properly a claim is When consent, stipulation.’ inaction court is vested pealed to LaRue, 409 U.S. (quoting California ques review “[a]ll 34 L.Ed.2d 109, 112 n. 93 S.Ct. under section in a matter which tions Brown, (Irma) 10 Vet. (1972)))); Smith subject to a decision 38] of [title (1997) (vacating as ultra 330, 334 App. 7104(a), §§ Secretary.” of the juris without decision issued vires a Board Brown, 4 7105(a); Bernard v. appeal); see also dismissing diction and 384, 390-91 Sec., Inc., v. Fed. NLRB may file Although a claimant Cir.1998) (7th Labor (noting in National below, adjudicated to a claim NOD statutory juris Board case that Relations jurisdic confer NOD could nothing in an never be waived” “can of the Board diction a claim that was over upon may be of its existence questions and that adjudicated presented never time); Dunklebаrger v. Mer any raised at no decision such there is RO because Bd., F.3d 1480 130 Sys. Prot. it Board. to the appeal claim newly raised agency (Fed.Cir.1997) that “an (stating (Board at 408-10 Vet.App. Godfrey, 7 confer by acquiescence cannot pre not first claim jurisdiction over lacks Board to Systems Protection on Merit RO). by adjudicated to and sented has not au Congress appeal an hear reviewing Indeed, tribunal appellate an entertain”); Plaque Board to thorized aon claim Secretary’s decision Dist. Port, Terminal Harbor & mines and absent under section benefits n. Comm’n, 542 3 F.2d 838 Fed. Mar. Board jurisdiction, original grant abandonment (D.C.Cir.1988) (stating that a claim such authority adjudicate has no ju confer issues does jurisdictional See 88 U.S.C. first instance.4 and that exists none where risdiction F.3d 7104(a); Principi, 282 § Scates subject matter like (“The jurisdiction, “[a]gency (Fed.Cir.2002) Board 1362, 1367 5904(c)(2) аs Cir.2002) (recognizing section juris original granted has been Board authority” to re “non-appellate giving Board adjudicate for revision diction agreements). See Mat CUE, attorney fee view U.S.C. see 38 decision based a Board (cit Nicholson, Vet.App. 205 error, thews v. obvious § to correct 5904(c)(2) examples 7111 as attorney sections 7103(c), fee review § U.S.C. original juris granting 5904(c)(2); statutory provisions U.S.C. agreements, see 38 Board). (Fed. to the diction Principi, F.3d Scates courts, the federal cannot be specific achieved basis of a allegation of CUE. See by consent of the parties”). Livesay, 15 178-79. As ob by served the Federal Circuit in Andre v. Once the Board has “[bjecause a CUE claim involves claim, however, over a it has the authority an allegation of an error with degree ‘some to address all issues claim, related to that specificity,’ a veteran’s assertion of a even those not previously by decided particular clear and by unmistakable error Bernard, (dis RO. See 4 Vet.App. at 392 the RO constitutes a distinct claim.” 301 tinguishing questions between or issues in (Fed.Cir.2002) (emphasis a matter or claim and the matter or claim added) Brown, (quoting Fugo v. itself, and holding that the Board has au (1993)). 40, 44 questions All within a sin “to thority decide all questions presented gle claim are encompassed within the term on the record it before that were neces Bernard, “matter.” See 4 Vet.App. at sary to its decision on the matter” on However, 389-92. separate two claims are appeal (citing 7104(a))). 38 U.S.C. To two separate considered “matters.” See authority exercise this with regard to Godfrey, 7 Vet.App. at 410. Accordingly, questions or issues not previously ad each theory new of CUE is a separate and by dressed instance, RO the first Andre, distinct matter. See supra. When however, the Board must secure a waiver theory new of CUE under section 5109A from a claimant or otherwise determine first to the that matter there would prejudice be no to the “subject was not by the Secre proceeding to adjudicate the tary,” and the would lack appellate question issue; otherwise remand is jurisdiction over the newly theory raised Bernard, appropriate. See 4 Vet.App. at 7104(a). CUE.5 38 U.S.C. In such a (Board must either obtain waiver or circumstance, the Board is obligated to determine whether claimant will be prej refer RO to “be udiced Board’s decided in the same any manner as other question or issue in an not other claim.” 38 5109A(e); see God wise RO, decided otherwise it must frey, 7 Vet.App. at 410. remand for the toRO decide question instance). in the first contrast, In request when a for re vision based on CUE is submitted to the 2. Board Jurisdiction Over a Rеquest RO and the disagrees with the 5109A(e) Revision Under for adjudication RO’s specific that request A request for revision based on and appeals to the the Board is CUE not is a claim for benefits its own jurisdiction vested with over the merits of rather, right; it is a collateral attack on an that matter because it had originally been otherwise final benefits decision on the to submitted the RO and subject to a 5. The Supreme U.S. Court 413-14, cases of Scarbor- 541 U.S. at 124 S.Ct. 1856. Absent a ough v. 541 U.S. 124 S.Ct. specific ‍​‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌‌​​​‌‌​​​​‌​​‌‌‌​​‌​‌​​‌‌​‌‌‍grant original jurisdiction, see su- (2004), 158 L.Ed.2d 674 Arbaugh and v. pra n. adjudicative Board’s authority is Corp., T & H 546 U.S. S.Ct. limited to those classes of cases in which (2006), support L.Ed.2d 1097 this conclu- Secretary had a rendered decision. See 38 cases, sion. Those together, read stand for 7104(a); Scates, see also 282 F.3d at proposition jurisdiction refers to the (except granted where "non-appellatе "adjudicatory authority” over "classes of authority,” authority Board’s "review” (subject cases jurisdiction) matter per- Secretary). decisions of the (personal jurisdiction).” sons Scarborough, the claimant RO, “advise Board should v. Secretary. Huston by the decision ... ... issue such intent to consider claimant, of its in October Principi claimant submits final deci- ... unless the previous of “the revision sought decision, waiver, will be RO ... the case sion,” and in a June Board de- 1998 RO for initial to the RO September a returned determined considered”); alia, an had, assigned yet inter cision, ... 7,1991, an award Sec’y for of June date Am. Veterans effective also Disabled connection, product not the was DAV of service [hereinafter Veterans Affairs (Fed.Cir.2003) Vet.App. of CUE. 18 Sec’yl 327 F.3d Board de- 19.9(a)(2) appealed, Mr. Huston be- (invalidating 38 C.F.R. May in a nowas CUE that there termined C.F.R. cause, conjunction with 38 decision, which it determined 1981 RO consider 20.1304, Board it allowed rendered, and thus last having to remand evidence without new final Hu- for revision. the request denied appel- obtain having to and without RO these ston, 398. Under waiver). lant’s circumstances, had the Board adjudi- the Board matter because Moreover, over the revision seeking one that was theory of CUE specific cated the “rephrase may also on CUE based RO, by the adjudicated to and presented support argument and additional provide final decision.” i.e., “previous CUE argument pre basic CUE the same for Hu- of Mr. denial Although the Board’s Jordan to the Board. sented” based on revision was request for ston’s 261, 270-71 Principi, 17 RO, the those from reasons different bound appellant is not (holding that re- adjudicate different did not Board for request in a used words exact Indeed, pre- never the Board was quest. in a Board of a CUE on the basis revision re- and distinct separate sented with two v. Ni decision), nom. Jordan sub aff'd Because quests for revision. (Fed.Cir.2005), re cholson, matter, it could jurisdiction over had (Fed. denied, No. 04-7034 hearing en banc there- any issue to address related proceed 2005). However, wholly each May Cir. Bernard, supra. to. See underly different distinct however, determined, separate The Court revision request adjudication of the prior the Board’s RO and, attacking because when matter a related addressed revision decision, each must had not been addressed issue that first instance RO in the adjudicated by the adjudicating RO, erred and, not, Board lacks if first instance without in the first matter. the the merits of over to the question the “offering to remand Thus, Huston, at 403. RO.” to Facts of Law Application B. claim, aon RO’s decision review of the its theory the agree that parties Both otherwise, required if the Board or CUE in Ms. to the Board presented CUE that matter related to an issue to address was Appeal, which Substantive Jarrell’s considered previously was not Board adjudicated the the remand RO, must either sepa theory of appeal, on now appellant’s the the or secure matter to RO to presented from that and distinct rate Huston, supra; Sutton See waiver. Specifi by the 1997 RO. (1996) (be- adjudicated and Brown, 564-70 the presented to cally, request considered issue not considers fore Board argument RO was based on the that the The Court must “take due account of the 1956 RO had not provisions followed the prejudicial rule of every error” in case in 3.307(c), §§ 38 C.F.R. 3.303 and the then- which it finds error in the Board’s decision. controlling regulations regarding serviсe 7261(b)(2); 38 U.S.C. see Conway v. for connection diseases noted in service or (Fed.Cir. Principi, 353 F.3d within presumptive period thereafter. 2004) (Court shall take due account In her Appeal, however, Substantive Ms. error). prejudicial rule of circum Jarrell raised for the first time the failure case, stances of this to hold that a lack of of the 1956 RO to presump- consider the jurisdiction can be harmless error would tion of sound condition under 38 C.F.R. be inconsistent well-established § 3.63. parties doctrine that cannot consent to Although Ms. Jarrell filed an and NOD agency jurisdiction and that the absence of a Substantive Appeal, these actions could jurisdiction cannot be waived. See Smith only jurisdiction confer on the Board to (Inna) Johnson, both supra; see also review the request merits of a for revision Sec., Fed. Dunklebarger, Plaque based theоry presented on of CUE to mines, all supra. adjudicated RO, the 1997 they did not serve jurisdiction such establish III. CONCLUSION in the Board over request for revision Upon consideration the foregoing, based wholly theory distinct of CUE portion 3, 2003, January Board presented first in her Appeal. Substantive adjudicated decision that request Godfrey, Andre and supra. both More- revision on the basis CUE raised in first over, Ms. Jarrell’s waiver of consideration Ms. Jarrell’s Appeal Substantive to the by the RO of the CUE presented to Board is SET ASIDE for want original the Board cannot serve jurisdic- to confer jurisdiction over that matter. This tion where it otherwise does not exist.6 is DISMISSED. (Irma) Johnson, See Smith both su- pra; Sec., Fed. Dunklebarger, SET ASIDE and APPEAL DIS- Plaquemines, all supra. instance, In this MISSED.

because Board lacked the merits of Ms. HAGEL, Jarrell’s Judge, filed a dissenting revision that had not been opinion. adjudicated RO, the appropri- HAGEL, Judge, dissenting: ate course of action for the Board was to I respectfully

refer dissent the matter from majori- the RO for ty’s opinion. majority first instance. See 38 holds that the 5109(e); Godfrey, 7 Vet.App. office’s failure to at 410 a spe- consider (holding Board properly cific unadju- referred assertion of clear and unmistakable dicated claim first raised to the deprives error Board of adjudication). RO for so, do despite the claimant’s waiver of 6. Sec’y, DAV v. supra, upon claimant, which our dis- for the remand RO undertake relies, colleague senting inapposite such action in the first instance. Id. case bar. Sec’y, DAV the Federal The case at bar wholly involves a distinct and held Circuit that when additional evidence is separate support in support submitted in Board aof claim for separate revision—a and distinct "claim” reopen, to the Board must secure a claimant’s Andre, (request), supra which, par- as the — proceeding waiver before to evaluate such agree, ties has been never to an RO. evidence and decide the claim adverse to the Subject The Board’s A. the I that believe review. regional office Matter Jurisdiction jurisdiction of confuses the majority requirements procedural the that of with lacks that this Court majority finds The processing claims intra-agency for be- on the matter over jurisdiction burdensome, unnecessary, thereby forces ju- matter subject lacked the Board cause parties.1 both unwanted remand only one There is disagree. I risdiction. Secretary agree both and the Jarrell Ms. the Board’s defines in title 38 that section be able waive should Ms. Jarrell that and it is jurisdiction, 38 in appeal” review on to “one right her of the entitled “Jurisdiction appropriately her Board to consider permit the order however, fails majority, The Board.” argument. clear-and-unmistakable-error authority given of breadth consider the agree to parties both § 7104. If 38 U.S.C. under Board Secretary and the the both how procedure, an administrative waive the defines statute. Section Court, pro- sponte, force sua this can citing by expansively, jurisdiction Board’s The of them? result formality on cedural all 511(a), extending to to 38 U.S.C. the unnecessary delay in decision is “necessary to a decision questions Further, case. Ms. Jarrell’s of resolution the that affects a law Secretary under terms of sections the considering clear The of benefits.” provision [veterans] 7261(b), 7261(a)(3)(C) require to review jurisdiction therefore Board prejudicial of the rule apply the Court af- a law that under that arise all claims sets aside when the Court even error benefits. of provision veterans fects jurisdiction, lack of for Board decision Nicholson, 398 F.3d Bates v. by committed jurisdictional error any (Fed.Cir.2005). in the instant nonprejudicial Board 7104(d) Board provides also Section subject case, Board had given of scope review a wide jurisdiction to with is Ms. Jarrell waiv- matter con- that the requiring by matters on appeal. review right her to one been it has and in which colleagues Board functions my stems My disagreement with 1. Board, judicial The decisions. in opinion regarding described of from a basic difference courts, all reviews appellate nearly all My unlike of the Board. and character the nature is based The Board's decision facts de novo. appear treat the Boаrd as colleagues law, office before the sepa- record entire equivalent of a court functional dis- and it assume any agency be- must independent rate and previously fact agrees with all statements fully proceedings are adver- which the fore 19.7(a) §§ agency. 38 C.F.R. found The Board premise is mistaken. This sarial. Indeed, (2005), the Board 20.202 Secretary Con- agent created an of the is and has inde- evidentiary hearings conducts affording claimants purpose of gress authority information to obtain pendent on an initial decision disagree with who VA's within from both statutory right to initial consideration their application for benefits VA, waiver. if it obtains claimant's prior to the outside agency another review within (2005); Am. Disabled § 20.1304 38 C.F.R. applica- on the agency’s final determination Veterans, is The Board at 1347-48. Sec’y Am. Veterans Disabled tion. See of the Sec- "instructions "bound” Affairs, 327 Veterans under 38 U.S.C. explicitly forth statute, retary” set is an (Fed.Cir.2003) (“By Thus, both because [agencies Secretary, as are the agent of the the entire and the head party this case (citing 38 U.S.C. original jurisdiction].'') with VA, agreement his including the 7101(a) (2000)) its members Board and right to a her can waive that she Ms. Jarrell adjudication of history in the have a rich presents a her however, claim claims, second equating the Board veterans waiver of than context appeals in- different independent court of with appellate court. district or a federal which the manner consistent sider “all (Fed.Cir.1997); issues of fact Port, material and law Plaquemines Harbor presented on the record.” Comm’n, There are no & Terminal Dist. v. Mar. Fed. qualifying requiring (D.C.Cir.1988). terms the Board to 838 F.2d 542 n. 3 But only address material issues or those claims that cases are distinguishable from the have been previously by instant case considered because pursuant to section regional only office. 7104 the significant The Board clearly statutory statu- or tory subject jurisdiction limitation on the matter juris- Board’s broad to review the issue diction is the right claimant’s this to “one re- case—whether the 7104(a). regional appeal” view on office under clear and section committed unmis But the takable error in a Federal Circuit has decision.3 indicated that That unquestionably this limitation is eliminated arises under a when the law claimant effectively provision affects the of waives additional veterans re- bene fits, therefore, view. Specifically, above, as set Disabled forth it American lies Secretary scope Veterans v. within the of Board’s statutory Veterans Affairs jurisdiction. Bates, the Federаl Circuit held that 398 F.3d at I section 1359. 7104(a) am not procedural implying, by any means, creates a right that en- that the parties titles the could claimant “to their appeal agreement own an adverse ex pand jurisdiction [agency-of-original-jurisdiction] Board’s to an area decision to law unrelated to Secretary ‍​‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌‌​​​‌‌​​​​‌​​‌‌‌​​‌​‌​​‌‌​‌‌‍provision Veterans Affairs.” 327 veterans Rather, F.3d at benefits. I 1342. The would hold Federal Circuit then may waive acknowledged procedural her may right the claimant to one review on waive if right.2 at Id. 1341-42. agrees to review a matter in the first The majority cites to cases from other instance.4 jurisdictions that have held that agen an B. Processing Requests VA for Revi- cy’s statutory subject jurisdic matter sion Based on Clear and Unmistakable tion cannot be 329; waived. See ante Error Is Not a Jurisdictional Issue. Sec., Inc., see alsо NLRB v. Fed. 154 F.3d (7th Cir.1998); Dunklebarger v. majority relies principally on the Bd., Sys. Merit Prot. 130 F.3d argument that the differences between the 2. The suggested Gober, Federal Circuit in Disabled Scates Secretary American Veterans v. Veterans Significantly, the Federal Circuit cited to its Af- that if the claimant had been afforded West, prior fairs decision in Cox v. 149 F.3d appellate opportunity to waive review and (Fed.Cir.1998), 1364-65 in which it ruled that had decided right, waive that the Board "might the Board jurisdiction have [had] over would have been allowed to consider new [seeking Cox's claim payment by the Secre- having evidence without to remand the mat- tary undisputed of an under fee] be- regional ter to the office. 327 F.3d at 1341. required cause that claim under ‘to make a decision "under a law Although majority cites to the Federal provision that affects the of benefits Circuit's decision in Prinсipi Scates v. for the ’ ” Scates, Secretary to veterans.” 282 F.3d proposition primarily that the Board is Cox, (quoting at 1368 (quot- 149 F.3d at 1365 tribunal, appellate the Federal Circuit also 511(a))). ing established in Scates "[t]he Board's sub- stantive is broad.” (2002). Moreover, Secretary's 4.The interest in intra-agency in Scates processing Federal Circuit declined claims to reach the is served when the Board holding reached underly- this Court in decides either to its remand matter to the re- decision, gional which held that office or to allow the claimant to waive original lacked to review the office review may so that it consider question Id.; attorney entitlement to fees. a matter in the first instance.

337 requirements claims-processing forth label set requirements claims-processing Scar jurisdictional.5 as section 5109A 5109A and 38 U.S.C. 7111 in 38 U.S.C. 414, 401, 124 541 U.S. v. that, borough to section pursuant demonstrate (2004). 1856, 674 to re 158 L.Ed.2d 5109A, lacks S.Ct. Court Supreme in McDonough, in the first Day v. for revision requests view defense limitations that 38 majority argues that “a statute The held stance. are un that the courts hence explicitly provides ‘jurisdictional,’ § 7111 is not sua instance the time bar in the first to raise obligation review no Board shall der decisions, 198, -, 126 S.Ct. of Board for revision 547 U.S. requests sponte.” The ma whereas, not. at 5 slip op. 5109A does section 164 L.Ed.2d however, address fails to determined analysis, further jority’s Court Supreme The As the enacted. oth ] 7111 was why section limitations statute of that “resemble! “[tjhat stated, provi of state Circuit Federal threshold barriers —exhaustion er default, to our decision a reaction nonretroac- remedies, sion procedural (Fed. Brown, 1516, 1526 ‘nonjurisdiction 35 typed [v. Smith tivity have —courts Cir.1994)], ‘clear held that the defens that those al,’ recognizing although applied regulation error’ beyond unmistakable concerns ‘implicate values es ” and not decisions regional office only to v. Ar (quoting Id. Acosta parties.’ West, v. Board.” Donovan (2000)). those of the In Scarbor tuz, 221 F.3d (Fed.Cir.1998). The 158 F.3d as also reasoned Court ough, Supreme Smith determined Circuit Federal follows: re to review office regional allow the if courts facilitated Clarity would be decisions revision quests for “jurisdictional” label litigants used to collat “would, an inferior oddly, permit rules, only but claim-processing not for at superior, of a actions erally review the delineating the classes prescriptions at matter.” as an initial least jurisdiction) (subject-matter of cases enacted, statute was therefore 1526. The fall- jurisdiction) (personal persons but jurisdiction, limit the Board’s not to authori- adjudicatory a court’s ing within from a lоwer tribunal prevent rather ty- tribu higher reviewing decisions (quoting 124 S.Ct. 1856 541 U.S. case, sce the reverse In the instant nal. v. 540 U.S. Ryan, Kontrick superi- exists because nario (2004)).6 906, 157 L.Ed.2d 5.Ct. attack tribunal, reviewing a collateral majori decision. The office

aon generally provides 5109A Section a flim on thus rests argument ty’s central of clear basis for revision sy foundation. submit- be error “shall unmistakable decided shall ted decisions Supreme Court

Recent U.S. any claim.” other in the same manner effort majority’s on the cast doubts because the instant case Godfrey guishable from majority also relies on Brown, want Brown, which both those cases did claimants Bernard require appeal.” acknowledged the section 7105 "one review rights to waive their them procedural and described were ments proce sequential, very specific, a "a series of Court’s Supreme held that Court 6. The out” for be carried steps must dural already been requirements had jurisdictional 7 Vet. Godfrey v. Brown appellate review. Scarborough appealed when satisfied added) (quot (emphasis App. disabili- denying his claim Board decision Brown, Bernard ty benefits. (1993)). also distin- and Bernard are Godfrey Because a freely, such for revision must relinquish to or surrender Janssen, be “decided in any right. the same manner as Vet.App. claim,” other section 5109A does not delin- case, In the instant there question is no any particular jurisdictional eate require- respect clarity of the waiver. beyond already

ments those dictated under Jarrell, counsel, Ms. represented by “ex- section 7104. pressly asserted her knowing and volun- Right C. of a Waiver tary waiver of [regional office] consider- ation,” as majority. conceded Ante that, It is wеll established absent an at 328. The agreed affirmative Congress’s indication ‍​‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌‌​​​‌‌​​​​‌​​‌‌‌​​‌​‌​​‌‌​‌‌‍of intent that Ms. Jarrell should be able to waive preclude waiver, party may “[a] waive that procedural right.7 any provision of a either contract or of a statute, intended for his benefit.” Shutte If not for the of the right sake claimant’s Thompson, 15 Wall. 82 U.S. to additional review or the Secretary’s in- (1873); 21 L.Ed. 123 Janssen v. Prin terest in claims, the orderly processing of cipi, Vet.App. (2001); purpose what can forcing “one review on Mezzanatto, also United States v. 513 U.S. appeal” serve? majority’s The 196, 200-01, 115 797, 130 S.Ct. L.Ed.2d 697 dictates a further procedure administrative (1995) (“Rather deeming than pre waiver that is not sought by either Ms. Jarrell or sumptively absent unavailable some sort of Secretary, required by law for express enabling clause, we instead have the sole purpose of conforming adjudi- adhered to the opposite presumption”) In cation of this matter to the majority’s Veterans, Disabled American the Federal sense of what a well-ordered process recognized Circuit ap “one review on should be.8 peal” procedural was a right intended for D. Deference to Agency and Informal the benefit of the claimant. 327 F.3d at Claimanb-Friendly System 1342. It that, therefore follows in order to waive that right to one appeal, review on aWhen claimant right waives the to one claimant must have knowledge of that review on appeal, the Court should defer right, intend, and must voluntarily and to the Secretary’s discretion regarding majority's 7. The forced remand inconsistency in this case is compari- is demonstrated forcing tantamount require remand to son majority's position of the in the instant compliance provisions with the notice of sec- analysis case and its Principi, of Huston v. 5103(a) against tion appel- wishes of the 395(2004). Huston, the Court lant and the Secretary. question considered the posed by same majority in this case.—whether majority 8. The concedes that the Board can proceed adjudicate arguments could consider a first clear-and-unmistakable-er- instance when regional claimant's waive of argument ror that was not long fice review regional so office has office. 18 at 402-3. The However, reviewed the underlying claim. facts in strikingly Huston are similar to the the context of assertions clear and unmis facts in this case in that both Ms. Jarrell and error, takable rephrasing line between presented vague claimant in Huston clear- argument asserting a new claim becomes arguments and-unmistakable-errоr before the unascertainable because each "assertion regional office and Board then considered particular clear and unmistakable error specific more variations of those assertions. [regional office] constitutes distinct majority's The holding regarding adjudi- claim.” Andre case, facts, cation of this (Fed.Cir.2002) (citation which has similar omitted). Thus, implementing contradictory majority's rule will inconsistent and result in foresha- arbitrary and problems inconsistent outcomes. Such dows future administrability. legislative intent evidence of the is further adjudicate the the Board should whether jurisdic- concept formal Supreme create a less in the first instance. claim “[c]ogent ‘ad level. established at the administrative Court has ... not interpretations [the] ministrative provides, pertinent Section ... rulemaking warrant of formаl products necessary its that “to the extent part, ” Dep’t Envtl. Conser respect.’ Alaska presented [the Court] and when EPA, 461, 487, 124 v. 540 U.S. S.Ct. vation and set aside deci- ... hold unlawful shall (quoting 157 L.Ed.2d 967 the [or Board] ... sions Health Servs. Dep’t State Soc. & Wash. of statutory ... in of to be excess found Keffeler, 537 Guardianship Estate of authority, limitations.” jurisdiction, 371, 385, 123 154 L.Ed.2d U.S. S.Ct. (b)(2) mak- requires “[i]n Subsection (2003)). “respect Courts should under subsection ing determinations authority to congressional delegation of (a), account of shall ... take due the Court entrusted to them agencies in the matters The Feder- prejudicial rule of error.” respect specialized their and should requirements has stressed these al Circuit matters before expertise deciding in responsibili- of its by reminding Court Nicholson, 417 Kirkpatrick v. them.” Conway Principi, ty regard. in this (Fed.Cir.2005). Because F.3d (Fed.Cir.2004). Read to- Secretary, agent is an of the the Board (a) (b) explicitly subsections gether, in unnecessarily interfere this Court would take due ac- that the Court must provide processing internal of claims agency’s error when adjudicat prejudicial of the rule of from count by disallowing the Board claim, holding setting the claimant’s waiver. unlawful or aside despite a Secretary’s jurisdictional grounds. The respect The Court should decisions Moreover, deference position in this case. the Board’s error majority asserts in case results agency instant prejudicial be must because to the claimant an outcome both favorable juris- jurisdictional a error committed intent congressional in line with the analy- But that cannot be waived. diction informal and system that the be “as VA the fact that the issue before ignores sis Bailey v. possible.” nonadversarial as clearly scope within thе of Court falls (Fed.Cir.1998) West, granted by Congress statutory jurisdiction Radiation (citing v. Nat’l Ass’n Walters Bates, 398 F.3d at 1359. of the Board. Survivors, 305, 323-24, 105 S.Ct. 473 U.S. plain it contradicts the clear And (1985)). 3180, 87 L.Ed.2d 220 (b), meaning of 38 U.S.C. ju- Error Prejudicial E. Rule of that a Board distinctly suggests The may nonprejudicial. error risdictional argument, Assuming, for the sake any specific majority point cannot jurisdictional that the Board committed a par- in because neither this case prejudice error, whether the Court must consider ty prejudiced, was demonstrated Although it prejudicial. that error was agree parties that both fact unnecessary to seem might glance at first instance adjudication in the first Board’s when prejudicial the rule of error consider of the nonprejudicial. Application does not finding that the Board there is thus, error would with- prejudicial rule matter, in a clear read- have finding that there questiоn, result out otherwise. Con- ing of the statute dictates waiv- given Ms. Jarrell’s prejudice, nowas decision to this Court gress’s require and the Secre- office review er in the context prejudice, consider even entitled to errors, tary’s agreement that she is jurisdictional assessing the Board’s short, response waiver. NOLAN, majority’s finding prejudice, only Appellant, I can Mildred ask, prejudice to whom? F. Conclusion NICHOLSON, Secretary R. James my

Let me be clear that it is not view that, Affairs, Appellee. by waiving right Veterans thereby consenting to of an No. 04-1032. Board, the first instance claimant can force the Board to decide an United States of Appeals Court issue without the benefit of factfinding for Veterans Claims. expertise agency and decisional of the original jurisdiction. Nor can the Aug. by unilaterally deciding an pre issue not ‍​‌‌‌‌‌​‌​​‌‌​‌​‌‌​​‌‌​​​‌‌​​​​‌​​‌‌‌​​‌​‌​​‌‌​‌‌‍agency original jurisdic sented to the

tion, force the claimant to abandon the

statutory right appeal. to one review on

These principles: limitations illustrate two

(1)The agency authority has to enforce its

claims processing rules and the claim

ant right has a to one review on

from the Secretary. procedural But the

requirements for claims processing set

forth in 38 U.S.C. 7105 and 38 U.S.C.

§ 5109A do not jurisdictional define the

requirements of either the Board or the Supreme

Court. As the clearly Court set Day

forth in Scarborough, pro claims

cessing jurisdictional. And, are not rules

although section provides a right to one review on

appeal, the claimant can right, waive that

provided that such a waiver is knowing intelligent. Disabled Am. Veter Cf. ans, 327 F.3d at 1342. unique

circumstances of this case in which the

interests of the claimant and the institu coincide,

tional agency interest of the there interests,

are no competing and the disal-

lowance of a waiver leads to absurd re remand,

sults—an unwanted consequential

delay Jarrell, for Ms. and waste of admin

istrative Consequently, resources for VA. I

respectfully dissent.

Case Details

Case Name: Denise Jarrell v. R. James Nicholson

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Aug 24, 2006

Citation: 20 Vet. App. 326

Docket Number: 03-0752

Court Abbreviation: Vet. App.