*1 inevitable-victory merits, catalyst, or remand from obtaining a on test based readjudication in solely for
Federal Circuit in an of the VCAA” of the enactment
light decision, pre-VCAA BVA from
appeal 280, and the Court .App.
Vaughn, Vet in full. deny application the EAJA
will foregoing, it is consideration of the
Upon appellant’s EAJA
ORDERED is DENIED.
application GALLEGOS,
Raymond Appellant, PRINCIPI, Secretary
Anthony J. Affairs, Appellee.
Veterans
No. 99-106. States Court
United
for Claims. Veterans
Jan. Jr., Lit- Stanley, Esq., North James W. AR, Rock, Appellant.
tle
Bernal, Esq.,
Appellee.
Debra L.
KRAMER,
Judge, and
Chief
Before
STEINBERG, Judges.
FARLEY and
ORDER
PER CURIAM:
on the
This
is before the Court
matter
(received
Septem-
parties’ joint motion
*2
2002)
9,
ber 19 and filed on December
The Federal
held that
Circuit
this Court
(Mot.)
2-3,
Motion
remand of the case.
at
had “erred when
invalidated
20.201
regard
requirement
with
to the
that an
NOD contain
that can be
‘terms
reason
underlying
The
facts of this case are set
ably
... a
appel
construed as
desire for
prior
forth in the Court’s
decision in this
”
review,’
late
and remanded the matter
case,
Gober,
50,
14 Vet.App.
for the
question
Court to determine the
(2000), rev’d,
1309,
51-52
Gallegos’s
“whether Mr.
1994 DAV let
(Fed.Cir.2002),
we will
not reiterate
a
ter constitutes
valid NOD under
11,
August
2000,
them
In
opin
here.
its
§ 20.201.” Gallegos,
Gonzalez v. STEINBERG, concurring: Judge, (2001) applies.to (holding that VBIA join granting I in the order the by all of claim remanded elements joint for remand.1 Howev- parties’ motion Board), applicable all law and or and with er, I find that the 1994 Disabled would Brown, 7 regulation. Allday v. Vet. (DAV) letter satisfied American Veterans (1995). remand, App. 533-34 On the the of 38 C.F.R. 20.201 requirements appellant will be free to submit additional (2002) Disagreement a Notice of being for argument and on the remanded evidence (NOD) having “in insofar as been written Kutscherousky v. claim in accordance with reasonably which can be construed terms West, Vet.App. (per 372-73 disagreement and a [expressing] as order) (concluding appel that an curiam review”, appellate because that desire for entitled, days is until 90 after Board lant requested development, “[flurther letter postremand appellant, notice to mails i.e., regarding verifica- review of’ evidence argument and submit additional evidence by appellant in tion cited the of stressors request hearing appeal, on which post-traumatic stress with his connection evidence), new appellant submit claim. disorder service-connection A applicable regulation. law and re all by Board con by mand this Court or the opinion in our Galle As we indicated right Gober, appellant on the to VA com gos fers 38 U.S.C. both of the order Af pliance Department with the terms remand of Veterans applicable (VA) contemplate af Secretary regulation concomi imposes fairs filed, step is compliance those is the next review duty tant to ensure ter an NOD (RO) West, regional that denied Stegall Vet.App. by the VA office terms. See claim, by (1998). is by and that review followed A final decision of the issuance a Statement following constitute VARO’s Board this remand will 5110(a) Disabled Ameri- agreed if the 1994 appellant has U.S.C. appears 1. It be a were to be found to temporarily pursuit can Veterans letter least abandon —at — Disagreement. might Notice of date that be obtained under effective (SOC) Moreover, Supplemental Case or a all SOC is not at clear that the disagreement not resolved the RO. majority view in commands the (2000). Gallegos, Vet.App. 55-56 support of a all of judges There is no requirement for Board Vet- Court of Appeals U.S. the Federal (BVA) point. erans’ review at that (Federal Circuit). Circuit its en banc Rather, only BVA review occurs after the opinion Principi, Cook v. that court Appeal, files a Substantive see 38 recently outlined seeking (2002). Hence, notion VA benefits. The court there described having claimant’s desire BVA re- as the NOD follows: prema- view at totally the NOD *4 A may appeal veteran an adverse RO ture. It only Appeal the Substantive [of decision the Board Ap- Veterans’ expressing that the claimant is review, peals]. Appellate desire for BVA see review initiated 38 (2002). § 20.202 Ibid. filing the veteran NOD] with [an [ ] VA. 7105(a). § See U.S.C. The NOD is a In respect, Judge Gajarsa, this in his written from communication the veteran dissenting opinion, aptly most concluded: expressing or disagree- dissatisfaction In various subsections of Con- adjudicative with an ment decision of [ ] gress given has several clear statements 20.201; VA. See 38 C.F.R. Collaro v. concerning the role of in a[n] NOD the West, (Fed.Cir.1998) 136 F.3d 1308 process Congress specified whereby a (explaining that disagreement between appellate initiates review. and the legal [ ] VA veteran over entitle- Tellingly, the does not discuss particular to a ment benefit form portions provi- these 7105. These NOD). the of an basis sions a multi-step process.... describe v. Principi, Cook F.3d 318 (Fed.Cir.2002) (en banc). Although Given the Galle various clear indications in Congress gos 7105 that a mul- finally shortly envisioned was decided before ti-step process, expression of a de- Cook, the court in Cook makes no refer appellate sire for being review the last (even citing regulation ence while to the step first, filing and NOD the being a[n] question) expression of a desire for regulation [ is not “consistent” JVA’s appellate review or BVA review as a nec §with regulation merges 7105.[ JVA’s essary component of an NOD. the step, contrary first and last to the Furthermore, only days three sequence prescribed, and mak[es] the issued, was Cook the Federal Circuit essence, superfluous. [SOC] [ ] VA’s again, previously stressed as it has in nu regulation violates both 7105 and opinions, pro-claimant merous Congress’ because intent is clear nature [U.S.A., and no adjudication Chevron Inc. v. Natural and went to Council, Inc., Res. 467 U.S. great lengths provide procedural relief Def. S.Ct. L.Ed.2d to a claimant “who relied the non- (1984),]deference should be afforded the pro-claimant and adversarial character of regulation. pursued system the veterans’ benefits and statutory his entitlements without 1309, 1316, Principi, v. 283 F.3d (Fed.Cir.2002) legal assistance of (Gajarsa, J., counsel." dissent (footnotes omitted). ing) Santana-VenegasPrincipi, F.3d added). find that this (Fed.Cir.2002) Only Gallegos did court (emphasis that failed to meet stan opinion a unanimous en banc three months earlier Chevron, Instead, supra, it applied dard. claim opinion “[w]hen stressed holding its that we had not as the basis for [VA], is before either benefits regulation deferred to a VA properly BVA, relationship or before the VARO require imposed had on VA claimants government the veteran and between ment, statutory to those in addition proclaimant[,] ... and is non-adversarial that makes more difficult section se are pro often act [and] veterans the assistance for a VA claimant “without aby organiza veterans’ service assisted appeal legal counsel” initiate Principi, Jaguay tion.” “pro-claimant” vet “non-adversarial” (en banc). (Fed.Cir.2002) The Court system, Santana-Venegas, erans’ benefits there: “In the context went on hold supra. non-adversarial, paternalistic, uniquely sys pro-claimant compensation veterans’ Santana-Venegas In the wake tem[,] availability equitable toll Jaguay, supra, descrip- NOD both ing interpreted liberally with ... should be opinion, supra, tion in the en banc Cook *5 respect during filings the non-adversari longer there there is no basis ever —if process.” require- permitting al of veterans’ benefits was—for VA add unrepresented same ment that an Application Id. at 1286.2 of these in express a desire for BVA review order principles to the issue decided NOD, to file an which has the function contrary would lead a conclusion adjudication system initiating the VA re by one reached Federal Circuit appellate process which next garding the elements of an administrative step disputed prior is of its RO review process. appeal within that VA U.S.C. determination. viability Finally, regarding the 7105(d)(1); Gallegos opinion, Federal Circuit’s timely (providing a[n NOD] that “[w]hen 21, 2002, this court sustained on November filed, jurisdiction original agency interpretation regarding section reexamine the claim and determine must articulating following stan 7105 after development additional review or war- interpreta reviewing dard for our Court’s ranted”). uphold the regulations:
tion of “We will [(U.S.
court’s Veter Claims’)] interpretation regulations
ans ‘arbitrary, capri we find it to be
unless discretion,
cious, abuse of otherwise
not in accordance with law.’ 38 U.S.C. (2000).” 7292(d)(1)(A) Herndon v. Princ (Fed.Cir.2002). 1121, 1124
ipi, F.3d opinion in in the
Yet nowhere this Court Principi a letter addressed to Gallegos Principi, F.3d Shortly zip code that caused to be (Fed.Cir.2002), with an incorrect was the U.S. issued Circuit, "properly ad- was nonetheless misdelivered Appeals for the Federal Court of timely filed under great weight it dressed” and thus illustrated once more the court Santoro, 7266(c)(2). vet- U.S.C. placed pro-claimant nature of the (Fed.Cir.2001). by holding in Santoro benefits erans’