James I. EVANS, Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee.
No. 08-2133.
United States Court of Appeals for Veterans Claims.
Aug. 4, 2011.
25 Vet. App. 7
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Edward V. Cassidy, Jr., Deputy Assistant General Counsel, and Christopher O. Adeloye, all of Washington, D.C., for the appellee.
Before MOORMAN, LANCE, and SCHOELEN, Judges.
MOORMAN, Judge:
The appellant, James I. Evans, through counsel, appeals an April 17, 2008, Board of Veterans’ Appeals (Board) decision that denied his claim of entitlement to service connection for the residuals of a collapsed lung, remanded his claims of entitlement to service connection for a back disorder and to a compensable evaluation for residuals of a fractured distal left fibular shaft, and effectively dismissed his claims for asbestos exposure, hepatitis B, and hepatitis C. Record (R.) at 3-4. On January 28, 2011, this panel issued a decision reversing in part the April 17, 2008, decision and remanding for further proceedings. On February 16, 2011, the Secretary filed a motion for partial reconsideration of the January 28, 2011, decision. At the Court‘s invitation, on March 31, 2011, the appellant filed a response in opposition to partial reconsideration.
The Court concludes that reconsideration is warranted based upon the Secretary‘s compelling argument that the Court‘s January 2011 opinion, read broadly, held that the Secretary waives his ability to dismiss claims if a claimant uses VA Form 9 and checks Box A of Block 9, indicating that he wishes to appeal all issues listed in the Statement of the Case (SOC), and must adjudicate all issues listed in the SOC even where the evidence of record may also indicate that the claimant wished to limit his appeal to certain issues. Accordingly, the Court will grant the Secretary‘s motion for partial reconsideration, withdraw the Court‘s January 28, 2011, opinion, and issue this opinion in its stead.
This appeal is timely, and the Court has jurisdiction over the case pursuant to
I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1968 until August 1970. R. at 573.
In July 2003, the appellant filed a claim with the St. Petersburg, Florida, regional office (RO), seeking entitlement to service connection for a back condition, bilateral wrist conditions, hepatitis C, carpal tunnel syndrome, a collapsed lung, drug addic
In February 2004, the RO issued a rating decision that disposed of 16 separate claims. R. at 391. Within that decision, the RO continued the appellant‘s noncompensable rating for his fibular shaft fracture, denied entitlement to a non-service-connected pension, and also denied reopening of the appellant‘s claim for the residuals of a forehead injury. R. at 391. The decision further denied entitlement to service connection for an eye condition, the residuals of a stab wound to the chest, the residuals of a collapsed lung, asbestos exposure, heart trouble, drug and alcohol addiction, hepatitis B and C, a back disability, carpal tunnel syndrome, a scar on the left wrist, and bilateral plantar fasciitis. Id. The appellant timely filed a Notice of Disagreement (NOD) to the RO‘s decision with respect to his claims for asbestos exposure, a back disability, a collapsed lung, hepatitis B and C, and his distal left fibular shaft fracture. R. at 379-84. The appellant also raised new claims for a neck condition, migraines, and memory loss. Id. However, the appellant did not express any disagreement with the other ten claims decided by the RO in the February 2004 decision. Id.
In September 2004, the RO issued an SOC with respect to the six claims referenced in the appellant‘s NOD. R. at 311-31. The RO also issued a rating decision with respect to the appellant‘s newly filed claims for a neck condition, migraines, and memory loss. R. at 334-39. The record before the Court does not reflect that the appellant filed an NOD with respect to the September 2004 rating decision; however, using a VA Form 9,1 the appellant filed a Substantive Appeal to the Board in November 2004 concerning the “issues” outlined in the September 2004 SOC. R. at 309-10. On his Form 9, the appellant checked Box A within Block 9, which stated: “I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME.” R. at 309. Box B within Block 9 is to be completed only if the claimant is appealing some but not all of the issues on the SOC. Id. Below Box B is a space for the claimant to list the issues he wishes to appeal. Although the appellant did not check Box B within Block 9, in the space provided below Box B of Block 9 on the same Form 9, the appellant specifically listed the RO‘s denial of his claims for an increased rating for his service-connected fractured distal fibular shaft and denial of his claims for a back injury and residuals of a collapsed lung. Id.
In the decision now on appeal, the Board fully addressed the three “issues” specifically outlined in the appellant‘s Form 9 in the blank space below Box B in Block 9 and further in Block 10; however, the Board dismissed the appellant‘s claims for (or issues of) asbestos exposure, hepatitis B, and hepatitis C. The Board, in the
However, in his October 2004 VA Form 9, the veteran stated that he was only appealing the issues of entitlement to service connection for a back disorder and residuals of a collapsed lung and for an increased evaluated (sic) for his residuals of a fractured distal left fibular shaft. As such, the veteran has not filed a [S]ubstantive [A]ppeal for the other issues. See
38 C.F.R. § 20.202 .
R. at 4.
II. ANALYSIS
A. The Court‘s Jurisdiction
In his brief to the Court, the appellant argues that the Board erred by not adjudicating his claims of entitlement to service connection for asbestos exposure, hepatitis B, hepatitis C, memory loss, migraines, and bilateral plantar fasciitis. Appellant‘s Brief (Br.) at 7. Specifically, he asserts that the Court‘s caselaw required the Board to liberally read his Form 9 Substantive Appeal and to address all issues possibly raised within that appeal. Id. at 20-24. The Secretary counters that the Court lacks jurisdiction over the appellant‘s asbestos, hepatitis, memory loss, migraine, and plantar fasciitis claims because those claims were never properly raised before the Board. Secretary‘s Br. at 7. In support of this contention, the Secretary argues that, under
The Court‘s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress, and the Court may not extend its jurisdiction beyond that which is permitted by law. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988); see Henderson v. Shinseki, — U.S. —, 131 S. Ct. 1197, 179 L. Ed. 2d 159 (2011). Congress has established that the Court “shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.”
1. Claims (Issues) Dismissed by the Board
The Court has the power to review the Board‘s refusal to exercise its jurisdiction. Butts, supra. In this case, the Court has jurisdiction to determine whether the Board acted properly in dismissing the appellant‘s claims for asbestos exposure, hepatitis B, and hepatitis C pursuant to
Pursuant to section 7105, the filing of an NOD initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant‘s filing of a Substantive Appeal, after an SOC is issued by VA.
Copies of the “statement of the case” prescribed in paragraph (1) of this subsection will be submitted to the claimant and to the claimant‘s representative.... The claimant will be afforded a period of sixty days from the date the statement of the case is mailed to file the formal appeal. This may be extended for a reasonable period on request for good cause shown. The appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement of the case. The benefits sought on appeal must be clearly identified.
The issue before the Court is whether the Board erred in determining that a claimant limits his appeal to certain specified issues when he files a VA Form 9 in which he checks the box indicating his desire to appeal “ALL OF THE ISSUES LISTED ON THE [SOC]“, but also specifies on the Form 9 arguments as to some, but not all, issues listed in the SOC.
The September 2004 SOC covered the following six issues: (1) an increased rating for the appellant‘s service-connected residuals of a fractured distal left fibular shaft, (2) service connection for a back disability, (3) service connection for asbestos exposure, (4) service connection for hepatitis B, (5) service connection for hepatitis C, and (6) service connection for the residuals of a collapsed lung. R. at 313. In response to the SOC, the appellant submitted a Substantive Appeal in the form of a VA Form 9, on which he checked Box A of Block 9 indicating that he wanted to appeal “ALL OF THE ISSUES” stated in the SOC. R. at 309. However, on that same VA Form 9 in the white space below Box B (which he did not check) within Block 9, the appellant specifically listed the RO‘s denial of his claims for an increased rating for his service-connected fractured distal fibular shaft and denial of service connection for a back injury and collapsed lung. Id.
This Form 9 was accepted as a Substantive Appeal, and the appellant‘s case went before the Board. In May 2005, the appellant‘s representative from a veterans service organization submitted a letter listing distal fibular shaft, back injury, and collapsed lung as the “[i]ssues [p]resented for [r]eview.” R. at 302. In January 2008,
In its April 2008 decision, the Board made no further mention of this dialog nor of the “prehearing conference” in reaching the conclusion that the appellant had limited his appeal to solely those three issues being discussed at the hearing. Notably, any statements made at the “prehearing conference” are not a part of the record before this Court. The Board noted that
the veteran‘s appeal had originally included the issues of entitlement to service connection for asbestos exposure, hepatitis B, and hepatitis C. However, in his October 2004 VA Form 9, the veteran stated that he was only appealing the issues of entitlement to service connection for a back disorder and residuals of a collapsed lung and for an increased evaluat[ion] for his residuals of a fractured distal left fibular shaft. As such, the veteran has not filed a [S]ubstantive [A]ppeal for the other issues. See
38 C.F.R. § 20.202 . Accordingly, the issues of asbestos exposure, hepatitis B, and hepatitis C no longer remain in appellate status and no further consideration is required.
R. at 4.
The Board‘s decision to dismiss the veteran‘s appeal as to three issues relied on VA regulation
A Substantive Appeal consists of a properly completed VA Form 9, “Appeal to Board of Veterans’ Appeals,” or correspondence containing the necessary information. If the Statement of the Case and any prior Supplemental Statements of the Case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The Substantive Appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the Statement of the Case and any prior Supplemental Statements of the Case. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege
specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a Statement of the Case or a Supplemental Statement of the Case which is not specifically contested. Proper completion and filing of a Substantive Appeal are the last actions the appellant needs to take to perfect an appeal.
The regulation states in pertinent part that the Substantive Appeal “should set out specific arguments” and “to the extent feasible, the arguments should be related to specific items in the [SOC].” The regulation further states: “The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal” while noting that the “Board may dismiss any appeal which fails to allege specific errors of fact or law....” Id. In this portion of the regulation, the Board is directed to assume the affirmative obligation of construing the arguments in a liberal (pro-veteran) manner. And, the regulation only then notes the permissive option of dismissal if “any appeal ... fails to allege specific error.”
The problem in the case before the Court is that the appellant created an ambiguity by checking the box in Block 9 indicating that he wanted to appeal all of the issues identified in the SOC and also inserted in the same Block 9 specific mention of three specific issues. This created a situation not contemplated by the instructions accompanying this form. The instructions for completion of Block 9 stated the following:
Block 9. Save what you want to tell us about why you are appealing for the next block. This is the block where you tell us exactly what you are appealing. You do this by identifying the “issues” you are appealing. Your local VA office has tried to accurately identify the issues and has listed them on the SOC and any SSOC it sent you. If you think that your local VA office has correctly identified the issues you are appealing and, after reading the SOC and any SSOC you received, you still want to appeal its decisions on all those issues, check the first box in block 9. Do not check the second box if you check the first box.
Check the second check box in block 9 if you only want to continue your appeal on some of the issues listed on the SOC and any SSOC you received. List the specific issues you want to appeal in the space under the second box. While you should not use this form to file a new claim or to appeal new issues for the first time, you can also use this space to call the [Board‘s] attention to issues, if any, you told your local VA office in your Notice of Disagreement you wanted to appeal that are not included in the SOC or a SSOC. If you want to file a new claim, or appeal new issues (file a new Notice of Disagreement), do that in separate correspondence.
Attachment at 4-5 (boldface emphasis added). Thus, in completing his VA Form 9, this appellant created ambiguity in regard to the issues he was appealing. He checked Box A in Block 9, did not check Box B in Block 9 (which states an intention to appeal only certain listed issues), and then in the remaining free space in Block 9, which appears to be intended for use only in limited appeals for which Box B is checked, he inserted comments concerning only three issues.
In analyzing the circumstances presented by the ambiguity created here
Third, the Secretary promulgated a regulation,
The Board may address questions pertaining to its jurisdictional authority to review a particular case, including, but not limited to, determining whether ... Substantive Appeals are adequate ..., at any stage in a proceeding before it, regardless of whether the agency of original jurisdiction addressed such question(s). When the Board, on its own initiative, raises a question as to a potential jurisdictional defect, all parties to the proceeding and their representative(s), if any, will be given notice of the potential jurisdictional defect(s) and granted a period of 60 days following the date on which such notice is mailed to present written argument and additional evidence relevant to jurisdiction and to request a hearing to present oral argument on the jurisdictional question(s)....
On the facts of this case, where the appellant completed a VA Form 9 and checked Box A of Block 9 stating that “I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME,” but then further completed Block 9 by listing only certain issues, the Board‘s unexplained statement that the appellant had limited his appeal by the manner in which he completed his VA Form 9 constitutes error. It fails to adequately provide reasons or bases for the dismissal of the remaining issues. Faced with the ambiguity created by the appellant in the Substantive Appeal, the veteran-friendly process requires VA at the RO or Board to seek clarification and communicate with the appellant as to any perceived concern about how the appellant had filled out the Form 9. Indeed, such action would be consistent with VA‘s obligation under
However, the record before the Court contains no evidence of any effort by VA to clarify whether the appellant was appealing all the issues in the SOC or only three issues. The Board failed to comply with VA‘s own procedural requirements found in
The Court notes that the VA Form 9, Block 9, containing two apparently mutually exclusive options, together with sufficient white space that a person checking Box A in Block 9 might also add additional information in that block, invites ambiguity in a claimant‘s response. That is precisely the ambiguity we deal with today. However, after the filing of this Form 9, the Board and the appellant were not powerless to limit the issues on appeal in this case. As noted above, the Board could have resolved any ambiguity by providing notice to the appellant of any potential defect in his Substantive Appeal “at any stage in a proceeding before [the Board].”
The Secretary argues that the legislative and regulatory history of
The comments received by VA during the development of regulations governing VA‘s treatment of issues on appeal to the Board expressed concern that the regulations granted the Secretary too much discretion to unilaterally dismiss an appeal. See 48 Fed.Reg. 6961, 6964 (1983), 57 Fed. Reg. 4088, 4093 (1992). In response to those concerns, VA noted that the Board has been, and will continue to be, very liberal in this area. This Rule of Practice also provides that “The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal...” and § 20.203[4] provides that appellants and representatives will be given notice and an opportunity to contest the matter when the [Board] questions the adequacy of the Substantive Appeal. 57 Fed.Reg. 4088, 4093 (1992).
As noted above, VA has a multitude of avenues available to clarify the issues on appeal that are consistent with pro-veteran, claimant-friendly claim development. The entire veterans claims adjudication process reflects the clear congressional intent to create an Agency environment in which VA is actually engaged in a continuing dialog with claimants in a paternalistic, collaborative effort to provide every benefit to which the claimant is entitled. In accordance with the Secretary‘s asserted position, VA not only does not engage in such a dialog, but rather need not even communicate to a veteran that he has not perfected an appeal as to certain issues he might otherwise believe are on appeal to the Board until the veteran receives that message many years later in a final Board decision. The veteran‘s only remaining chance to receive an initial Board adjudication on the merits of any issue deemed abandoned by the Board is then to request Board reconsideration. However, the Board‘s standard for granting reconsideration is a burdensome standard for the veteran to meet. The Chairman of the Board or his delegate has the sole discretion to choose the decisions that will be reconsidered and limits the decision to a review to the following grounds: (a) upon allegation of obvious error of fact of law; (b) upon discovery of new and material evidence; or (c) upon allegation that an allowance of benefits by the Board has been materially influenced by false or fraudulent evidence.
The Secretary further argues that the appellant “explicitly abandoned” the issues of asbestos exposure, hepatitis B, and hepatitis C during his January 2008 hearing before the Board. Secretary‘s Br. at 13-14. However, it is the Board that is required to provide a complete statement of reasons or bases, and the Secretary cannot make up for its failure to do so. See
In sum, the Board‘s only explanation for its decision is the cursory statement that the appellant “stated” on the Form 9 that he intended to limit his appeal. A review of the appellant‘s Substantive Appeal indicates that he did not actually state that he was limiting his appeal to three issues. The Board‘s summary conclusion is inadequate because it does not provide this Court or the appellant with an explanation of how the Board considered and weighed the conflicting information on the VA Form 9. The Secretary again attempts to bolster the Board‘s decision by arguing that the Board exercised its discretion under
Contrary to the Secretary‘s argument, it is impossible to determine from the Board‘s conclusory language that it determined that the Substantive Appeal was insufficient because it contained no specific allegations of error of fact or law. The Court expects that if the Board intends to dismiss an appeal for failure to comply with the specificity requirement of section 7105, the Board would clearly state this and explain the basis of its decision. Therefore, the Court finds the Secretary‘s argument that the Board correctly dismissed the appellant‘s appeal under
Accordingly, the Court will vacate the Board‘s dismissal of the issues of asbestos exposure, hepatitis B, and hepatitis C under
2. Claims Not Addressed by the Board
To the extent that the appellant makes arguments concerning his claims for memory loss, migraines, and fasciitis, which were not decided by the Board, the Court has no jurisdiction to consider these claims on the merits absent a Board decision addressing them. See Jarrell, 20 Vet. App.
B. Appellant‘s Merit Argument
The Court acknowledges the appellant‘s argument that VA did not meet its duty to assist with respect to his claim for service connection for a lung condition caused by asbestos exposure. Appellant‘s Br. at 24. However, as this claim has not been considered on the merits by the Board, the Court will not address this issue, but will allow the Board to consider it in the first instance. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (finding that the Court “may hear legal arguments raised for the first time with regard to a claim that is properly before the court, [but] it is not compelled to do so in every instance“).
Accordingly, the Court will vacate the April 17, 2008, Board decision with respect to the appellant‘s claims for asbestos exposure, hepatitis B, and hepatitis C and remand those matters for further proceedings consistent with this opinion. However, the appellant‘s appeal for service connection for memory loss, migraines, and plantar fasciitis is dismissed for lack of jurisdiction because those conditions were not the subject of the Board decision now on appeal. On remand, the appellant is free to submit additional evidence and argument, including the arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet. App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with
III. CONCLUSION
Based on the foregoing analysis, the appellant‘s and the Secretary‘s briefs, and a review of the record on appeal, the Secretary‘s motion for partial reconsideration is granted; the Court‘s January 28, 2011, opinion is WITHDRAWN; and this opinion is issued in its stead. The Board‘s April 17, 2008, decision is VACATED with respect to the Board‘s dismissal of the issues of asbestos exposure, hepatitis B, and hepatitis C, and the matters are REMANDED to the Board for further proceedings consistent with this opinion. The appeal as to the appellant‘s claim for service connection for memory loss, migraines, and plantar fasciitis is DISMISSED for lack of jurisdiction.
LANCE, Judge, filed a dissenting opinion.
LANCE, Judge, dissenting:
I believe that the Court‘s original opinion was correct and should stand. Therefore, I must dissent. The new majority‘s opinion upon reconsideration is flawed in both application and analysis. In application, the Board should not be permitted another opportunity to dismiss the claims that it did not properly dismiss the first time. I fear that in two years the Court will be reversing another improper dismissal and remanding these claims for a
The essential flaw in this new opinion is that fails to differentiate between the requirements for a valid Substantive Appeal and the requirements for a valid withdrawal of an appeal. The result is an opinion that seriously undermines our recent en banc decision in Ortiz v. Shinseki, 23 Vet. App. 353 (2010) (en banc). In Ortiz, we clearly held that a mere expression of intent is not enough to satisfy the Substantive Appeal requirement. Id. at 357. Yet, the current opinion discusses the “ambiguity” as to whether the appellant intended to appeal all issues as if that mattered in determining whether the Board‘s dismissal was proper. It simply does not. As the majority notes, the Board decision on review held that “the veteran has not filed a [S]ubstantive [A]ppeal for the other issues.” R. at. 4. The correctness of this determination cannot be measured by the appellant‘s intent but only by examining whether the requirement to “set[] forth—however inartfully—a particular theory of error” was satisfied or waived. Ortiz, 23 Vet. App. at 357.
In this case, there is no question that the appellant did not offer any argument, inartful or otherwise, as to the claims in dispute. He merely checked Box A on VA Form 9, which states: “I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME.” R. at 309. Thus, the question of whether the Substantive Appeal requirement was satisfied turns on the issue of whether checking this box was an acceptance of an offer by the Secretary to waive the argument requirement.
In my view, the only reasonable interpretation of Box A is that it is an offer to waive the argument requirement. As a legal matter, such an interpretation is consistent with both the claimant-friendly nature of the veterans benefits system, see Henderson v. Shinseki, — U.S. —, 131 S. Ct. 1197, 1200, 179 L. Ed. 2d 159 (2011) (reiterating that VA‘s adjudicatory process is meant to function with a high degree of informality and solicitude for the claimant), and the more general principle that ambiguity in a document should be construed against the drafter, see E.L. Hamm & Associates, Inc. v. England, 379 F.3d 1334, 1341-42 (Fed. Cir. 2004) (discussing the contract interpretation rule of contra proferentem, which states that ambiguity is generally construed against the drafter of a contract). As a practical matter, a veteran would be completely shocked to check this box in a case and then to receive a Board decision dismissing his appeal for failure to state an argument.
The majority opinion spends a lot of time trying to decipher the effect that should be accorded to the specific arguments that the appellant makes in box B of the form. The correct answer is none. The appellant‘s specific arguments cannot alter the meaning of box A. The meaning of that box is necessarily uniform in every case where that Form 9 is used and the appellant‘s choice to add arguments in box B cannot magically turn box A into something other than an offer to waive the argument requirement. By giving weight to the appellant‘s additional arguments in interpreting box A, the majority implies that the meaning of the pre-printed language in the Secretary‘s form is not fixed, but varies depending upon how the form is filled out. This is simply inconsistent with bedrock principles of law. Cf. Tropf v. Nicholson, 20 Vet. App. 317, 321 n. 1 (2006)
There is arguably a separate issue of whether the appellant abandoned his appeal. As the majority opinion notes, this was not the holding of the Board decision and the Secretary is raising this issue for the first time on appeal. Op. at 13. That could easily be the end of the matter. Even if we were to entertain this argument, our case law is clear that the appellant‘s actions were not sufficient to withdraw these claims. See Kalman v. Principi, 18 Vet. App. 522, 524 (2004) (reversing Board finding that claimant withdrew his appeal where his statement regarding the “only issue remaining,” in context, referred to resolving the location of a video hearing and not limiting the issues on appeal); Verdon v. Brown, 8 Vet. App. 529, 533 (1996) (setting aside Board finding that claimant withdrew his appeal where (1) the claimant‘s letter to his service representative stated he had “come to an agreement” in regard to the disability rating for his right leg, and (2) the service representative‘s presentation to the Board omitted mention of the right leg rating, but (3) the presentation of the claimant‘s other service representative mentioned the right leg rating); Isenbart v. Brown, 7 Vet. App. 537, 541 (1995) (finding that, where claimant enumerated certain issues and stated that there are “no additional issues” at hearing, Court found that “these few words spoken orally” did not provide “the formality or specificity that withdrawal of [a Notice of Disagreement] requires.“). Therefore, remanding this matter for the Board to provide additional reasons or bases on an issue where the record is clearly insufficient to support a finding against the appellant merely risks needless delay and an unnecessary appeal to this Court in the future.
Finally, I note that this new opinion adds some additional discussion of the Board‘s procedures for notifying appellants of potential jurisdictional problems and giving them an opportunity to respond. Op. at 12 (discussing
For these reasons, I would remand these claims with directions to the Board to decide them on the merits and I dissent from the majority‘s more limited remand.