Raymond Gallegos, Claimant-Appellee v. Anthony J. Principi, Secretary of Veterans Affairs

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Raymond GALLEGOS, Claimant-Appellee, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellant.

No. 01-7037

United States Court of Appeals, Federal Circuit.

DECIDED: March 15, 2002.

1309

circuit to have considered it has likewise concluded that the expiration of the statute of limitations does not divest a district court of subject matter jurisdiction, but rather constitutes an affirmative defense, which the defendant can waive. See

Unit-ed States v. Spector, 55 F.3d 22, 24 (1st Cir.1995) (“A statute of limitations defense is a waivable affirmative defense, not a jurisdictional bar to prosecution. Failure to raise the defense in a timely manner can result in its waiver.” (citation omit-ted));

United States v. Wilson, 26 F.3d 142, 155 (D.C.Cir.1994) (“[T]he settled law in our circuit has been that a criminal statute of limitations is not jurisdictional in nature and therefore can be waived.“);

United States v. Gallup, 812 F.2d 1271, 1280 (10th Cir.1987) (“It is well settled that the statute of limitations is an affirma-tive defense which is waived unless raised at trial.“);

United States v. Karlin, 785 F.2d 90, 92-93 (3d Cir.1986) (“[I]n criminal cases the statute of limitations does not go to the jurisdiction of the court but is an affirmative defense that will be considered waived if not raised in the district court before or at trial.“);

United States v. Meeker, 701 F.2d 685, 687 (7th Cir.1983) (same);

United States v. Walsh, 700 F.2d 846, 855 (2nd Cir.1983) (same);

United States v. Williams, 684 F.2d 296, 299 (4th Cir.1982) (same); cf.

United States v. Crossley, 224 F.3d 847, 858 (6th Cir.2000) (holding that the statute of limitations presents a bar to prosecution, but conclud-ing that it may be waived by an explicit waiver). Indeed, none of the courts of appeals has taken the position urged by the defendant, and we decline to do so in this case.

We are likewise unpersuaded by Najjar‘s contention that the district court abused its discretion by denying his mo-tion to withdraw his guilty plea. Pursuant to Fed.R.Crim.P. 32(e), a district court may permit a defendant to withdraw his plea before the district court imposes sen-tence for “any fair and just reason.” In determining whether a defendant has shown a fair and just reason, the district court evaluates the totality of the circum-stances, including “(1) whether close assis-tance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be con-served; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.”

Buckles, 843 F.2d at 472 (citations and footnote omitted).

Here, the district court made factual findings on each of these factors. In doing so, the district court made credibility de-terminations prior to concluding that Naj-jar had not satisfied the prerequisites to Rule 32(e). Upon our review of the rec-ord, we can find no abuse of the district court‘s sound discretion in its

Buckles analysis and its conclusion that Najjar was not entitled to withdraw his plea.

AFFIRMED.

James W. Stanley, Jr., of North Little Rock, AR, Attorney, argued for claimant-appellant.

Lawrence N. Minch, Attorney, Civil Di-vision, Commercial Litigation Branch, De-partment of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart E. Schiffer, Act-ing Assistant Attorney General; David M. Cohen, Director; and Todd M. Hughes, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy As-sistant General Counsel; and Martie Adel-man, Attorney, Department of Veterans Affairs, of Washington, DC.

Kenneth M. Carpenter, NOVA-Nation-al Organization of Veterans’ Advocates, Inc., of Topeka, KS, for amicus curiae NOVA, INC.

Before LOURIE, RADER, and GAJARSA, Circuit Judges.

RADER, Circuit Judge.

The Court of Appeals for Veterans Claims determined that 38 C.F.R. § 20.201 (1998)—a Department of Veterans Affairs (VA) regulation setting minimum require-ments for a notice of disagreement (NOD)—was invalid because the regulation required that an NOD express a desire for review by the Board of Veterans’ Appeals (Board). After invalidating the regulation, the Court of Appeals for Veterans Claims held that a letter submitted by Raymond Gallegos‘s authorized representative to a regional office was a valid NOD even with-out any expression of a desire for review by the Board. Because the Court of Ap-peals for Veterans Claims did not properly defer under

Chevron U.S.A., Inc. v. Natu-ral Resources Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), and because 38 C.F.R. § 20.201 is not procedurally defective, arbitrary or capricious in substance, or manifestly con-trary to statute, this court reverses and remands.

I.

In March 1992, Raymond Gallegos ap-plied for service connection for disability due to diabetes and chloracne (acne-like eruptions on the face, linked to dioxin ex-posure). In August 1993, Mr. Gallegos amended his claim to include a claim for service connection for Post Traumatic Stress Disorder (PTSD). In September 1994, the regional office (RO) denied his PTSD claim. Mr. Gallegos‘s representa-tive, the Disabled American Veterans (DAV), submitted a letter entitled “Memo to Rating Board” to the VA on October 11, 1994. This 1994 DAV letter stated: “[I]t is our opinion that denial of the veteran‘s claim for [PTSD] was a little bit prema-ture. Further development [i.e., a review of other documents] ... would prove bene-ficial to fair evaluation of this veteran‘s claim.” The record does not indicate what action the VA took in response to that letter.

Mr. Gallegos took no further action on his claim until February 20, 1997, when he filed an application to reopen his disal-lowed claim for service connection for PTSD. In October 1997, the RO granted that claim effective February 20, 1997, the date of Mr. Gallegos’ application to reopen the claim. Soon after, Mr. Gallegos filed an NOD disagreeing with the 1997 effec-tive date. In that NOD, Mr. Gallegos sought an effective date of August 31, 1993, the date on which he first claimed service connection for PTSD.

In December 1998, the Board held that Mr. Gallegos was not entitled to the earlier effective date. In re Gallegos, C 25 623 426, slip op. at 9 (Dec. 9, 1998). Applying 38 C.F.R. § 20.201, the Board reasoned that the 1994 DAV letter—although per-haps questioning the RO‘s denial of PTSD—did not “indicate the appellant‘s desire for appellate review.” Id. at 8. Thus, the Board concluded that the 1994 DAV letter did not constitute a valid NOD appealing the September 1994 denial of the original PTSD claim. Because Mr. Gallegos did not submit a valid NOD in 1994, the Board made the September 1994 decision final. As a consequence, the Board sustained the effective date of Feb-ruary 20, 1997 for Mr. Gallegos’ PTSD benefits.

The Court of Appeals for Veterans Claims reversed the Board‘s decision. Specifically, the Court of Appeals for Vet-erans Claims determined that 38 U.S.C. § 7105, the statutory NOD requirement, needed no interpretation or implementa-tion by regulation.

Gallegos v. Gober, 14 Vet.App. 50, 56 (2000). Thus, the Court of Appeals for Veterans Claims declined to apply

Chevron deference to the VA‘s regu-latory implementation of the statute, namely 38 C.F.R. § 20.201. Relying on the language of § 7105, the prior decision of

Tomlin v. Brown, 5 Vet.App. 355 (1993), and the pro-claimant nature of the veteran adjudication system, the veterans court struck from § 20.201 the requirement that an NOD express “a desire for appellate review.” The Secretary of Veterans Af-fairs now appeals.

II.

When reviewing an agency‘s con-struction of a statute that it administers, this court first determines “whether Con-gress has directly spoken to the precise question at issue.”

Chevron, 467 U.S. at 842, 104 S.Ct. 2778. If the law governs the question under consideration, this court and the agency “must give effect to the unambiguously expressed intent of Congress.”

Id. at 843, 104 S.Ct. 2778. If, however, the law does not speak to the issue, this court then asks whether the administering agency properly promulgat-ed an interpretative regulation “based on a permissible construction of the statute.”

Id.;

Micron Tech., Inc. v. United States, 243 F.3d 1301, 1308 (Fed.Cir.2001).

In other words, this court defers to the VA‘s reasonable interpretation of a statutory provision when the law does not directly address the precise question at issue, in other words, when the law leaves “a gap for an agency to fill.”

Chevron, 467 U.S. at 843, 104 S.Ct. 2778 (“The power of an administrative agency to ad-minister a congressionally created ... program necessarily requires the formula-tion of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress.” (quoting

Morton v. Ruiz, 415 U.S. 199, 231, 94 S.Ct. 1055, 1072, 39 L.Ed.2d 270 (1974)) (emphasis added)); see also

Immigration & Naturalization Serv. v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 1445, 143 L.Ed.2d 590 (1999). The Supreme Court chose to em-phasize that

Chevron deference applies unless the statute speaks “directly” “to the precise question.” Under

Chevron deference, “any ensuing [agency] regula-tion is binding in the Courts unless proce-durally defective, arbitrary or capricious in substance, or manifestly contrary to the statute.”

United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 2171, 150 L.Ed.2d 292 (2001).

III.

Under 38 U.S.C. § 501, “[t]he Sec-retary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws adminis-tered by the Department and are consis-tent with those laws.” 38 U.S.C. § 501 (1994) (emphasis added). The Secretary of Veterans Affairs asserts that the VA properly interpreted and implemented 38 U.S.C. § 7105 by promulgating 38 C.F.R. § 20.201. Specifically, the Secretary notes that title 38 does not define a “notice of disagreement.” The Secretary‘s regula-tion seeks to define that undefined statuto-ry term. In other words, the Secretary seeks to fill a gap in the statute.

Section 7105(a) states that: “Appellate review will be initiated by a notice of dis-agreement and completed by a substantive appeal....” Section 7105(b) further states, in relevant part:

(1) [A] notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination. Such notice, and appeals, must be in writing and be filed with the activity which entered the determination with which disagreement is expressed ....

(2) Notices of disagreement, and ap-peals, must be in writing and may be filed by the claimant, the claimant‘s le-gal guardian, or such accredited repre-sentative, attorney, or authorized agent as may be selected by the claimant or legal guardian.

38 U.S.C. § 7105(b)(1)-(2) (1994) (emphasis added).

This statutory language supplies some requirements for a valid NOD. For in-stance, title 38 requires a written NOD. In addition, the claimant or his representative must file this writing with the “activity which entered the determination with which disagreement is expressed“—the re-gional office in this case—within one year of notice of an initial determination. The statute does not, however, define “notice of disagreement” or suggest sufficient ex-pressions to make a writing an NOD. The statute also does not suggest that its speci-fications for an NOD—writing, one-year time limit from notice, etc.—are the only requirements for a valid NOD. In sum, § 7105 does not address directly the pre-cise question under review. In a general sense, the statute does not define an NOD. More important, on the precise question under review, the statute does not directly address whether an NOD is sufficient without a request for appellate review. Therefore, under the standard set by the Supreme Court, title 38 contains “a gap for an agency to fill” with regard to the defini-tion of a legally valid NOD.

Chevron, 467 U.S. at 843, 104 S.Ct. 2778.

Indeed, the Veterans Department had supplied a regulatory definition of the term “notice of disagreement” as early as 1963. In that earlier regulatory definition, the former 38 C.F.R. § 19.1a(b), an NOD “should be in terms which can be reason-ably construed as evidencing a desire for review of [the VA‘s] determination.” La-ter enactments did not disturb these earli-er regulatory definitions of NOD.

Thus, § 7105 does not express a com-plete and unambiguous meaning for the statutory term “notice of disagreement.” Moreover, the statute does not directly address the sufficiency of an NOD without a request for appellate review—the precise question posed by this case. In sum,

Chevron deference applies to the VA‘s im-plementation of § 7105, i.e., 38 C.F.R. § 20.201.

The VA promulgated § 20.201 in 1992 to expressly define a “notice of dis-agreement” in § 7105. As stated in § 20.201:

A written communication from a claim-ant or his or her representative express-ing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a de-sire to contest the result will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms that can be reasonably construed as disagree-ment with that determination and a de-sire for appellate review.

Thus, under § 20.201, a valid NOD must contain “terms that can be reasonably con-strued as disagreement with that determi-nation and a desire for appellate review.”

Section 20.201 is a reasonable and per-missible construction of § 7105. Section 7105 does not preclude other requirements for an NOD. Moreover, § 20.201 merely states that a veteran NOD must include terms that can be reasonably construed as a desire for appellate review. This re-quirement serves administrative efficiency by distinguishing a request for Board re-view from other routine communications in the wake of a VA decision. Assuming the veteran desires appellate review, meeting the requirement of § 20.201 is not an oner-ous task.

Section 7105(d) specifies that the region-al office must file a “statement of the case” if the matter remains unresolved after an NOD. 38 U.S.C. § 7105(d)(1) (1994). Mr. Gallegos contends that a veteran cannot make an informed decision to appeal with-out the information in the statement of the case, which the veteran receives only after filing an NOD. To the contrary, the VA decision itself provides the veteran with information for an informed appeal deci-sion. As required under 38 U.S.C. § 5104(b), notice of a VA decision must include a statement of reasons for the decision and a summary of the evidence considered by the VA. 38 U.S.C. § 5104(b) (1994); see also

Hayre v. West, 188 F.3d 1327, 1334 n. 4 (Fed.Cir.1999). Such no-tice, which a veteran receives before the NOD filing deadline, see § 7105(b)(1), pro-vides the veteran with enough information to support an NOD—namely a letter “rea-sonably construed as disagreement with ... a desire for appellate review.” Even if still harboring questions, a veteran can easily include his intent to appeal in a letter of disagreement to preserve an ap-peal option.

Although “initiating” the appeal process, an NOD may or may not actually lead to an appellate review. After receiving the NOD, the regional office reviews the claim again. If the regional office can resolve the disagreement at that point, no appeal ensues. If the regional office cannot re-solve the disagreement, it proceeds to pre-pare a “statement of the case.” 38 U.S.C. § 7105(d)(1). The veteran then receives “sixty days from the date the statement of the case is mailed to file the formal ap-peal.” 38 U.S.C. § 7105(d)(3).

In any event, § 20.201 is not procedural-ly defective, arbitrary or capricious in sub-stance, or manifestly contrary to § 7105 or any other relevant statute. In reaching this conclusion, this court has considered as well the pro-claimant nature of the vet-eran adjudication system. This court has already decided that

Chevron deference may apply in the pro-claimant context of title 38. See

Gilpin v. West, 155 F.3d 1353, 1356, n. 2 (Fed.Cir.1998), cert. de-nied,

526 U.S. 1144, 119 S.Ct. 2019, 143 L.Ed.2d 1031 (1999) (“It is beyond ques-tion that the Secretary has substantive rule-making power with respect to the benefits in question here and thus

Chevron deference applies.“).

CONCLUSION

In sum, the Court of Appeals for Veter-ans Claims erred in not applying

Chevron deference to the VA‘s implementation of 38 U.S.C. § 7105, i.e., 38 C.F.R. § 20.201. The Court of Appeals for Veterans Claims also erred when it invalidated § 20.201 with regard to the requirement that an NOD contain “terms that can be reasonably con-strued as ... a desire for appellate re-view.” This court, therefore, reverses and remands the decision of the Court of Ap-peals for Veterans Claims for a determina-tion of whether Mr. Gallegos‘s 1994 DAV letter constitutes a valid NOD under § 20.201.

COSTS

Each party shall bear its own costs.

REVERSED and REMANDED.

GAJARSA, Circuit Judge, dissenting.

This court should affirm the Court of Appeals for Veterans Claims in

Gallegos v. Gober, 14 Vet.App. 50 (2000) (“Gallegos“), because there is no “gap” in 38 U.S.C. § 7105 with respect to a notice of disagree-ment (“NOD“). By applying deference un-der

Chevron U.S.A., Inc. v. Natural Re-sources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), through its prismatic view of a “gap” in a clear statute, the majority upholds a Vet-erans Administration‘s (“VA“) regulation that rewrites Congress’ clearly stated meaning for a NOD. The majority estab-lishes an illusory “gap” by positing ques-tions that the statute clearly answers, and then asserting that these supposedly unan-swered questions justify the VA‘s regula-tion: “whether a[] NOD is sufficient with-out a request for appellate review,” and whether the statute “define[s] a ‘notice of disagreement.‘” Maj. Op. at 1312-13.¹

I believe, however, that the plain mean-ing and structure of § 7105 leave no room for an agency to add additional require-ments to a NOD: the inquiry does not pass step one of the

Chevron test.² With-out

Chevron deference, the regulatory re-quirement that the NOD must “express a desire for appellate review” as established by the VA‘s regulation, 38 C.F.R. § 20.201, cannot be upheld. Further, relevant pre-cedent and policy dictate that the holding of the Court of Appeals for Veterans Claims should be affirmed. Therefore, I respectfully dissent.

The plain meaning of the term “notice of disagreement” does not allow for the addi-tion of procedural requirements, such as expanding the NOD definition to require that claimants also express a desire for appellate review, in order for their NOD to be valid. The plain meaning is not only clear, but obvious. The term “notice” de-notes “giv[ing] legal notice to or of ... [t]o realize or give attention to.” Black‘s Law Dictionary 1088 (7th ed. 1999). The term “disagreement” specifies the type of notice required in a NOD: “[a] difference of opin-ion; a lack of agreement.” Id. at 475.

Thus, by plain meaning, “notice of dis-agreement” means giving attention to a lack of agreement. In the context of § 7105, this meaning applies to the veter-an‘s claim. The claimant advises the VA of his or her lack of agreement with the initial review or determination for the claim by filing a NOD. 38 U.S.C. § 7105(b)(1) (1994). There is no ambiguity in the well-known concepts of “notice” and “disagreement.” These concepts and the plain meaning of these terms do not cover “expressing a desire for appellate review” as called for by the regulation. 38 C.F.R. § 20.201 (2001).

The Court of Appeals for Veterans Claims found, and the majority does not contest, that the letter sent on Mr. Galle-gos behalf by the DAV expresses notice of disagreement, i.e., gives attention to a lack of agreement, with the initial decision on Mr. Gallegos’ PTSD claim. Gallegos at 58. Thus, but for the additional regulatory procedural requirement erroneously added by the VA, the DAV‘s actions on Mr. Gallegos behalf would have entitled him to the earlier effective date for his claim. The alleged “gap” in § 7105 does not sup-port stripping Mr. Gallegos of his right to the earlier date when the VA improperly added a “technical, formal requirement” for a NOD. Gallegos at 57 (citing

Tomlin v. Brown, 5 Vet.App. 355, 357 (1993)).³ Because the statute is clear and there is no gap,

Chevron deference does not apply.⁴ The Supreme Court has itself noted that when the statute is clear

Chevron defer-ence does not apply. See

Dole v. United Steelworkers of America, 494 U.S. 26, 42-43, 110 S.Ct. 929, 938, 108 L.Ed.2d 23 (1990);

Chevron, 467 U.S. at 842, 104 S.Ct. 2778 (“If the intent of Congress is clear, that is the end of the matter“);

id. at 843 n. 9, 104 S.Ct. 2778 (“If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that inten-tion is the law and must be given effect.“).

We have more, however, than the plain meaning of “notice of disagreement” to inform the term NOD. In various subsec-tions of § 7105, Congress has given sever-al clear statements concerning the role of a NOD in the process Congress specified whereby a claimant initiates appellate re-view. Tellingly, the majority does not discuss these portions of § 7105. These provisions describe a multi-step process Congress set forth to initiate appellate re-view. They delineate the difference be-tween a NOD, the first step, and the later steps, which may eventually lead to a re-quest for review. Further, the majority opinion fails to address Mr. Gallegos’ ar-guments concerning the import of the multi-step process on the meaning of NOD. In the context of this multi-step process, clearly articulated by § 7105, a NOD cannot be expected or interpreted to express a desire for appellate review. The Court of Appeals for Veterans Claims recognized this and applied structural statutory interpretation to reach the cor-rect result—that the VA cannot add an additional procedural requirement to the NOD.

The relevant sections of § 7105 are set forth below in greater detail to illustrate the provisions ignored by the majority.

§ 7105. Filing of notice of disagree-ment and appeal

(a) Appellate review will be initi-ated by a notice of disagreement and completed by a substantive appeal af-ter a statement of the case is fur-nished as prescribed in this section.....

(b) (1) Except in the case of simulta-neously contested claims, notice of dis-agreement shall be filed within one year from the date of mailing of notice of the result of initial review or determina-tion.....

(2) Notices of disagreement, and appeals, must be in writing ....

(c)....

(d) (1) Where the claimant, or the claimant‘s representative, within the time specified in this chapter, files a notice of disagreement with the decision of the agency of original jurisdiction, such agency will take such development or review action as it deems proper un-der the provisions of regulations not in-consistent with this title. If such action does not resolve the disagreement ei-ther by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall pre-pare a statement of the case. ....

(2) ....

(3) 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 rep-resentative, if there is one. The claimant will be afforded a period of sixty days from the date the state-ment of the case is mailed to file the formal appeal. This may be extend-ed 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 state-ment of the case. ....

38 U.S.C. § 7105 (1994) (emphases and underlining added).

From the claimant‘s perspective, § 7105 sets forth the following steps for initiating an appeal: (i) within one year from the denial of the claim, file a NOD; (ii) receive a statement of the case; (iii) within sixty days from the date of the statement of the case, file a formal appeal. Our case law recognizes this structure.⁵ The structure of this sequence clearly relegates the func-tion of requesting or expressing a desire for appellate review to the last step. The majority provides no viable reason why the

VA‘s regulation should be allowed to tram-ple on this clear procedural sequence de-scribed by Congress. It is true, as the majority describes, that 38 U.S.C. § 501 authorizes the VA to prescribe rules and regulations necessary or appropriate to carry out the laws administered by the VA. 38 U.S.C. § 501 (1994); Maj. Op. at 1311. However, such regulations must be “con-sistent with those laws.” § 501. Given the various clear indications in § 7105 that Congress envisioned a multi-step process, with expression of desire for appellate re-view being the last step and filing a NOD being the first, the VA‘s regulation is not “consistent” with § 7105. The VA‘s regu-lation merges the first and last step, con-trary to the sequence prescribed, and mak-ing the statement of the case superfluous. In essence, the VA‘s regulation violates both § 7105 and § 501 because Congress’ intent is clear and no

Chevron deference should be afforded the regulation.⁶

In particular, the use of the word “and” in the title of § 7105 recognizes that a NOD and an appeal are different steps. If Congress intended the NOD to specify a desire for appellate review, the title would be “Filing of notice of disagreement for appellate review.” Similarly, § 7105(a) spells out the multi-step process. The NOD merely initiates the process, and a substantive appeal completes the process “after a statement of the case is furnished”

to the claimant. 38 U.S.C. § 7105(a) (1994). Next, § 7105(b)(2) underscores the difference between a NOD and an appeal. § 7105(b)(2). Further, § 7105(d)(1) recognizes that the process may stop after the claimant files the NOD: “if such action does not resolve the disagreement either by granting the benefit sought or with-drawal of the [NOD], [the agency] shall prepare a statement of the case.” § 7105(d)(1). Another portion of that sub-section then specifies that within sixty days from the date of the statement of the case the claimant must file the formal ap-peal, and that the appeal is based on the statement of the case. § 7105(d)(3)

I fail to see how Congress could have specified this multi-step micro procedure for initiating an appeal and have not speci-fied the meaning of a NOD within the process. It is clear within the procedure described that the NOD does not express the desire for appellate review because that is the purpose of filing the appeal, a separate step as clearly contemplated by § 7105. The majority mischaracterizes the holding of the Court of Appeals for Veterans Claims, which did not hold that the statutory NOD requirement “needed no interpretation or implementation by” the VA, Maj. Op. at 1311, but rather held that Congress’ intent was clear and there was no gap in § 7105 with respect to the meaning and specification of a NOD, Gallegos at 56. The Court of Appeals for Veterans Claims also, correctly in my view, noted that the relevant legislative history supported its interpretation of the term “notice of disagreement.”⁷ Gallegos at 58. In addition, applying its own precedent in

Tomlin, it expressed what is also in my view the correct, statutorily-authorized re-quirements for a NOD.⁸

The majority contends, on the one hand, that it considered the “pro-claimant nature of the veteran adjudication system,” while on the other, upheld a requirement that “serves administrative efficiency.” Maj. Op. at 1314-15. While undoubtedly both policies are important, the majority‘s hold-ing unnecessarily elevates the latter over the former. This is squarely against our precedent, which has consistently empha-sized the Congressionally-mandated pro-claimant nature of the VA system.⁹ As correctly expressed by the Court of Ap-peals for Veterans Claims, this emphasis extends to guidance in statutory interpre-tation:

Consequently, even were we to find some ambiguity in the statute, which we do not, we would be compelled to resolve “interpretative doubt ... in the veter-an‘s favor.”

Boyer v. West, 210 F.3d 1351, 1355 (Fed.Cir.2000) (quoting

McKnight v. Gober, 131 F.3d 1483, 1485 (Fed.Cir.1997) (quoting

Brown v. Gard-ner, 513 U.S. 115, 118, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994))); see

Allen v. Brown, 7 Vet.App. 439, 448 (en banc) (1995) (applying Gardner to resolve interpreta-tive doubt in veteran‘s favor).

Gallegos at 56.

The interpretative guidance expressed by this pro-claimant policy further informs our job at step one of the

Chevron analy-sis. Compounded with the plain meaning and structure of § 7501, and in light of our precedent, the meaning of “notice of dis-agreement” is clearly specified by Con-gress and does not reasonably leave any “gap” which the VA need fill by regulation.

For the foregoing reasons, I would af-firm the Court of Appeals for Veterans Claims.

GAJARSA

CIRCUIT JUDGE

BOEING NORTH AMERICAN, INC., Appellant, v. James G. ROCHE, Secretary of the Air Force, Appellee.

No. 01-1011.

United States Court of Appeals, Federal Circuit.

DECIDED: March 15, 2002.

Notes

1

The majority additionally contends that § 7105 does not “suggest sufficient expres-sions to make a writing an NOD” and does not suggest that its specifications for a NOD are the only requirements. Maj. Op. at 1313. With this statement, however, the majority admits that § 7105 specifies many aspects of a NOD: “writing, one-year time limit from notice, etc.” Id. (emphasis added).

2

See

Skinner v. Brown, 27 F.3d 1571, 1572 (Fed.Cir.1994) (“‘If the intent of Congress is clear, that is the end of the matter.‘“) (quoting

Chevron at 842, 104 S.Ct. 2778).

3

As put by the Court of Appeals for Veterans Claims: “we conclude that there is no ‘gap’ in this statutory scheme and that the Secretary, rather than having filled in the gap conjured up by the dissenting opinion, has by regula-tion raised a barrier to appellate review where none exists in section 7105.” Gallegos at 56.

4

This court has previously reviewed § 7105 and the term “notice of disagreement” in light of a related but instructive question—whether for jurisdictional purposes § 7105 al-lows for more than one NOD in a single claim.

Hamilton v. Brown, 39 F.3d 1574, 1574 (Fed.Cir.1994). In this review, we ex-plicitly found that there was no gap in mean-ing for a NOD in § 7105 with respect to this question, and therefore,

Chevron deference did not apply. Id. at 1585.

5

For example: “The filing of a NOD triggers a reexamina-tion of the claim at the AOJ. ... If dis-agreement persists, the appellate machinery moves forward, with the AOJ assisting the veteran in preparing a Statement of the Case (SOC) to present to the Board. The SOC contains a summary of the evidence and factual issues, a statement of the appli-cable statutes and regulations, and a discus-sion of their application to the facts. The SOC also sets out the AOJ‘s determinations on each of the issues that were determined adversely to the veteran. The veteran then selects the issues upon which he seeks to appeal to the Board, and specifies argu-ments relating to errors of fact or law made by the AOJ in reaching the determination being appealed.”

Smith v. Brown, 35 F.3d 1516, 1520 (Fed.Cir.1994). See also

Hamilton, 39 F.3d at 1575-76 (“An administrative appeal proceeds through an elaborate set of steps before end-ing up in the Board of Veterans’ Appeals.“).

6

As stated by the Court of Appeals for Veter-ans Claims: “All that a NOD-filing claimant need desire is review and development by the RO fol-lowed by its issuance of an SOC (or SSOC) if the claimant‘s disagreement is not re-solved by the RO. This is the process re-quired by section 7105(d)(1). Ultimately, if the claimant is still dissatisfied after receiv-ing the SOC (or SSOC), he or she then may pursue an appeal to the BVA by filing a Substantive Appeal, and only then does the case go forward to the Board for its review. In other words, after a NOD is filed, it is quite possible that it may not become nec-essary to transmit the case to the BVA. How then can it be reasonable for the Sec-retary to require that every denied VA claimant must, at the time he or she files a NOD, express a desire for BVA review? The answer is quite simply that it cannot be reasonable and that, accordingly, such a regulatory requirement would not be “con-sistent with” the statutory provisions, as it must be in order to be a valid regulatory requirement promulgated under 38 U.S.C. § 501(a).” Gallegos at 56.

7

The government argues that the legislative history associated with the Veteran‘s Judicial Review Act (VJRA), Pub. L. No. 100-687, 102 Stat. 4105, 4113-4121 (1988) (codified as amended at 38 U.S.C. § 7251 (1988)), sup-ports the opposite contention realizable from the plain meaning and structure of § 7105: that Congress understood that a NOD ex-pressed an intention to appeal. H.R. Rep. No. 100-963, pt. 1 at 14 (1988). See also

Hamilton, 39 F.3d at 1576, 1582-84. This contention does not hold water, however, in light of our holdings in

Hamilton. First, we noted that “the notion that an expansive Agency definition of a NOD was incorporated into § 402 of VJRA is inconsistent with the plain language of the statute and its legislative history.” Id. at 1583-84. Further, we explic-itly held that the VA‘s regulatory definition, which at that time contained the overreaching “desire for appellate review” requirement, was not incorporated into the meaning of the statute by the VJRA. Id. at 1584.

8

As put by the Court of Appeals for Veterans Claims: “the statute provides clearly on its face that appellate review is initiated by a ‘notice of disagreement‘. The statute specifies the five elements for such a[] NOD: That it must (1) express disagreement with a spe-cific determination of the agency of original jurisdiction (generally a decision by an RO [hereinafter referred to as “RO decision“]) (§ 7105(d)(2)); (2) be filed in writing (§ 7105(b)(1), (b)(2)); (3) be filed with the RO (§ 7105(b)(1)); (4) be filed within one year after the date of mailing of notice of the RO decision (§ 7105(b)(1)); and (5) be filed by the claimant or the claimant‘s au-thorized representative (§ 7105(b)(2)). The only content requirement is an expression of ‘disagreement’ with the decision of the RO.” Gallegos at 54. The court further states that in

Tomlin it noted the “clarity and complete-ness of the statute,” which, by implication, “read out of the regulation any added require-ment of an expression of a desire for appellate review.” Id. at 55.

9

For example, in

Hensley v. West, 212 F.3d 1255 (Fed.Cir.2000), faced with a similar poli-cy question concerning the level of procedural requirements appropriate for the veterans benefit system, we expressed that: “a low evidentiary threshold is particularly appropriate in the veterans context because in the early stages of the application pro-cess, the veteran is almost always unassist-ed by legal counsel. See 38 U.S.C. § 5904(c)(1) (attorneys and agents prevent-ed from charging for services rendered pri-or to date of final decision from BVA). Since significant if not essential evidence regarding the merits of a claim often re-sides in the DVA‘s files, it would be funda-mentally unfair to erect a steep evidentiary hurdle in front of an unassisted veteran before allowing the veteran to receive assis-tance from the DVA. The low threshold is also appropriate in light of the uniquely pro-claimant nature of the veterans compen-sation system. See

Hodge v. West, 155 F.3d 1356, 1362-64 (Fed.Cir.1998) (recognizing that the veterans benefit system is “unique-ly pro-claimant“);

Hayre v. West, 188 F.3d 1327, 1333-34 (Fed.Cir.1999) (pointing out Congress‘s recognition of “the strongly and uniquely pro-claimant system of awarding benefits to veterans“).” Id. at 1262 (emphasis added). This same fundamental unfairness attaches to the addi-tion of a procedural requirement to the clear-ly defined NOD.

Case Details

Case Name: Raymond Gallegos, Claimant-Appellee v. Anthony J. Principi, Secretary of Veterans Affairs

Court Name: Court of Appeals for the Federal Circuit

Date Published: Mar 15, 2002

Citation: 283 F.3d 1309

Docket Number: 01-7037

Court Abbreviation: Fed. Cir.