Roberto v. Ortiz v. Eric K. Shinseki

request advance their case on the docket for certain reasons. See 38 20.900(c)(i).

C.F.R. Specifically,

regulation provides that motion for earli- granted

er consideration if the

appellant is “under severe financial hard-

ship.” Id.

Upon consideration the foregoing, it is

ORDERED that Mr. Watson’s motion to

withdraw is GRANTED his December

14, 2009, petition extraordinary relief is

DISMISSED. ORTIZ, Appellant,

Roberto V. SHINSEKI,

Eric K. Secretary of Affairs, Appellee.

Veterans

No. 06-0932.

United States of Appeals Court

for Veterans Claims.

Argued Jan. 2009.

Decided March 2010. Lehman,

Nancy Beach, of West Palm Florida, for appellant. (NOD) and, in October Disagreement Paul J. Hut- whom with

Tracy Alsup, K. Statement of 1979, issued Counsel; R. Randall and ter, General (SOC). Mr. informed Counsel, The SOC all the Case General Assistant Campbell, denied because claim was for Ortiz that his D.C., brief were on the Washington, did not he had submitted the evidence appellee. evidence to “new and material constitute GREENE, Judge, and Chief Before claim. disallowed previously reopen” his MOORMAN, HAGEL, KASOLD, (R.) further not- 174. SOC at The Record SCHOELEN, DAVIS, LANCE, and “solely submitted was the evidence ed that Judges. and in character” repetitive cumulative or nervous condi- that a it to establish failed LANCE, Judge: in service. aggravated incurred tion was appeals Ortiz V. Veteran Roberto enclosed from VA that cover letter Id. The 9, 2005, Board August an through counsel that the SOC Mr. Ortiz informed the SOC (Board) decision Appeals of Veterans’ that he could to him so being sent was date appeal for effective his denied Board as argument best make his 1994, 28, for his service- earlier than June changed.” R. ruling “should why VA’s single- In a disorder. bipolar connected his Mr. Ortiz that informed at 171. VA decision issued judge memorandum should Appeal” argument or “Substantive 2008, 28, affirmed the Court July VA Form in the attached be set out timely Mr. Ortiz filed Board’s decision. words, state, in his own he should and that reconsideration, or, in the alter- for motion seeks, in the SOC facts the benefit upon native, Based panel for a decision. “any errors disagrees, which he heard motion, of the Court panel this law.” applying made in you believe we was which the case after argument, oral Id. consideration. called for full-Court 1980, later, March months Several 28, 2008, deci- July memorandum Court’s support Mr. filed statement issued opinion sion is withdrawn status of “[kjindly requesting [the] claim follow, reasons that For the place. in its my Washington re- my claim 9, 2005, will August the Board’s nervous condi- connection quest service be affirmed. thereto, response In R. at 178. tion.” stating Mr. Ortiz a letter Secretary sent I. FACTS 1-9 [Sub- “you must sübmit Army from in the U.S. Mr. Ortiz served your ap- reactivate Appeal] to stantive The San 1960. August 1958 to October 1980, Mr. Ortiz May In R. at 181. peal.” (RO) Rico, Juan, regional office Puerto stating letter Secretary’s responded to compensation a 1971 claim denied head- condition and for a nervous pension out November form was sent that RO [t]he did not aches. Mr. Ortiz here, at Ponce. from the Veterans it became final. On decision and why you are send- the reason I see can’t sought again Mr. Ortiz benefits l-98[sic] form condition, ing me the same evi- and submitted nervous his up. filed Please search already Sep- if request. of his support dence in yet action has no records because request denied his RO tember can make hope you taken. I submitted been evidence because evaluation, I do not see since reopening to warrant deemed insufficient to do not want it. why you would timely Notice reason filed a claim. Mr. Ortiz rights. I have all the I ensuing years, Over the [S]ince Ortiz was years you I will waiting. hope give granted me an earlier effective date of June 28, 1994, I appointment very an since feel sick for reasons not relevant to this Mayaguez appeal, and the treatment at consists and he continued to seek still only pills nothing else. earlier effective date based on his belief that Secretary failed properly pro- R. at 184. cess his 1979 claim and appeal of the RO’s Secretary June wrote to denying that claim. In the deci- stating Mr. Ortiz that he had never re- sion we appeal, consider here on the Board ceived Form his VA 1-9. This letter also affirmed assigned effective date of Secretary stated that the sending Mr. 28,1994, June for Mr. bipolar Ortiz’s disor- Ortiz a new Form 1-9 completion for his der. Relevant to appeal, the Board signature, if and that the form was not concluded that Mr. Ortiz had failed to file received within days no further action 1-9, a VA Form equivalent, or its setting would appeal. be taken on his The record law, out allegations of error of fact or copy of the letter reflects that it was incor- year within one from September the RO’s rectly addressed to “Mr. Roberto Vidal 1979 decision. Ordal.” R. at 195. It also reflects that a VA Form 1-9 was enclosed with the letter. II. ARGUMENTS In July Mr. again sought Ortiz argues Mr. Ortiz timely he filed a condition, benefits his nervous and he to the September RO’s stated that his medical evidence was at the decision, but the pro- Board never claim, hospital. VA The RO reopened his cessed appeal. He contends that his upon but denied it based a lack of evidence March 1980 in support statement of claim psychosis of treatment for his during ser- asking appeal, about his May and his vice or within presumptive period fol- informing letter the Secretary that he al- lowing service. Mr. Ortiz filed an NOD 1-9, ready had filed a constitut- (see 242) and, R. at after an extensive ed a because the corre- procedural history resulting in a March spondence reflected his intent decision, 2000 RO granted he was service equivalent was the of a VA Form 1-9. connection for bipolar disorder and as- See Appellant’s Brief at 14. He further signed disability a 70% compensation rat- argues that his pending rating and a disability of total based when he was awarded service connection upon (TDIU), unemployability individual in March and that he should be July effective 1994. Mr. Ortiz submit- assigned an effective date based on his ted a disputed July statement claim. pending 1994 effective grounds date on the that his originated condition in 1965 and that Secretary argues The there is a had filed a claim for the same in plausible benefit basis for the Board’s denial of an 1971. The RO considered his statement to earlier effective Secretary date. The con- NOD as to his effective date and tends that correspondence July issued an response SOC 2001. In Secretary spe- sent to the did not contain SOC, Mr. Ortiz stated that VA had cific allegations of error of fact or law as process failed to Ap- required by and, his 1979 Substantive regulation, statute and SOC, peal response therefore, to the October 1979 it did not constitute a Substan- requested that, and therefore he Appeal. earlier ef- tive argues fective date for disability rating. filing his 100% absent the of a ordinary meaning of the application became 1979 RO decision September of construction to the be words and rules claim and

final regulation fails plain language date. earlier effective basis for an question at issue.... Without answer the LAW AND ANALYSIS III. meanings and rules of con standard word struction, Congress nor Secre neither A. Standard of Review in a tary can how to write authorities know assignment Although the Board’s prac intent and no way conveys their generally is reviewed an effective date importantly titioner or—more —veteran of “clearly erroneous” standard under the regulation or to mean rely can on a statute Nicholson, review, 20 Vet. Canady v. see say.”); it see also Am. appears what (2006) (“A 393, Board determina App. 398 68, Patterson, 63, v. 456 U.S. Tobacco Co. date is a find proper of the effective tion (1982) 1534, 71 L.Ed.2d 748 102 S.Ct. under of fact that the Court reviews ing (“[W]e legislative purpose the ‘that assume set forth ‘clearly erroneous’ standard the ordinary meaning of expressed by the 7261(a)(4).”), in this in in 38 U.S.C. ” v. (quoting Richards the used.’ words stance, was denied an earlier effective date States, 1, 9, 585, 7 369 U.S. 82 S.Ct. United that a the Board determined Sub because (1962))); v. L.Ed.2d Bell Atl. Tel. 492 Cos. filed Mr. Appeal had not been stantive (D.C.Cir.1997) FCC, 1044, 131 F.3d 1047 a constitutes a Ortiz. Whether document “may statutory construction (stating that Appeal is de novo. reviewed plain as a search for the be characterized (2007). Peake, 11, Vet.App. 22 15 v. Gibson statute”); Der meaning of the Gardner v. Additionally, the Court reviews (“Deter (1991) winski, 584, Vet.App. 1 586 interpretations of statutes and Board’s mining plain meaning requires statute’s § 7261 regulations de novo. See 38 U.S.C. at issue examining specific language (Court statutory regulatory interprets statute.”), of the and the overall structure Principi, v. 339 F.3d provisions); Lane Brown, v. 5 F.3d sub Gardner nom. aff'd (Fed.Cir.2003) 1331, (“[IJnterpreta 1339 (Fed.Cir.1993), 115, aff'd, 1456 513 U.S. regulation question is a of a statute or tion 552, L.Ed.2d 115 130 462 S.Ct. Brown, 532, law.”); Vet.App. v. 5 Butts of banc) (Court (1993) (en “ques reviews 539 However, understanding plain mean any deference of law de novo without tions regard for requires of the statute due law”). conclusions of the Board’s provision at issue and the context of In provisions. of related regula or consideration interpreting When statute ” “ Ramsdell, Tp. v. tion, habitants Montclair ‘starting point language.’ is its of 391, 147, 152, 375, 2 27 L.Ed. 431 Vet.App. 107 U.S. S.Ct. 16 Otero-Castro (1883) (“It (2002) duty give of the court Hosp. (quoting Good Samaritan 380 effect, Shalala, 402, 409, every and word possible, if clause S.Ct. U.S. be, statute, (1993)); any if it 2151, 124 avoiding, & of a L.Ed.2d 368 see Black legisla that the implies which Corp. v. Internal Reve construction Decker Comm’r of Cir.1993) (4th nue, meaning of the (“Regu ignorant ture was 986 F.2d Furthermore, lations, statutes, employed.”). interpreted language ac like construction.”). plain meaning of the statu “even when cording to the canons tory language question would resolve or are to regulation The words of statute court, legislative Tropf v. the issue before given plain meaning. their See Nicholson, usually be examined least history n. 1 should at (“[A] clearly there is a ‘to whether ambiguous only when the determine statute is expressed legislative intention contrary to benefits sought and “should set specif- out ” statutory language.’ allegations Glaxo ic Opera of error of fact or law ... specific tions U.K. Ltd. v. related to Quigg, 894 F.2d items in the [Statement (Fed.Cir.1990) (quoting Galleries, [C]ase.” Id. The Madison act further provid- ed that States, appellant “[t]he Ltd. United will be presumed 870 F.2d to be in (Fed.Cir.1989)). agreement statement of fact contained in the [Statement of the B. Statutory Requirements to which [C]ase no exception is taken” and of a Substantive Appeal gave the Board authority to “dismiss case, In this the Court is called any appeal which fails to allege specific upon to interpret the Substantive Appeal error fact law in the determination provision Then, as it operated in 1980. as being appealed.”1 Id. Pursuant to this now, the administrative appeal statutory language, version began claims with the filing of an NOD Form required specific allegations of and was completed with the filing of error of fact or law. Appeal. See 38 U.S.C. Based on the language, history, and 4005(a) (1980); § Disabled Am. Veterans complete structure of the statute creating (Fed.Cir. Sec’y, 327 F.3d Appeal procedure, it is 2003). 4005(d)(3) § 38 U.S.C. clear that the statute must be interpreted (1980) is now codified as 38 U.S.C. placing as a burden on claimants to expand 7105(d)(3) (2008) § and the in language upon their initial disagreement with the subsection(d)(3) in both the 1980 and the RO by setting forth —however 2008 statutory provisions identical, inartfully particular theory of error for —a statutory full scheme was not the same. Indeed, decide. the U.S. Appeal procedure was Court of Appeals for the Federal Circuit (Federal introduced 87-666, Public Law Circuit) § 1 recognized has point. 19, 1962), (Sept. captioned which was West, “An In it explicitly Collaro held that improve Act to process the “statutory due in the regulatory consid- regime that eration and final adjudication Congress protect of created to disputed veterans” al claims for lows claimant to veterans’ benefits file a providing “vague NOD” and at a that later time “cut claimant shall the rough stone of his furnished a NOD to reveal the brief statement radix of of his issue that the facts and law appli- lay (Fed. within.” 136 F.3d cable to the case appealed and afforded an Cir.1998). Hence, purpose of the Sub opportunity to reply thereto.” The act re- stantive requirement particularly quired VA for the first time to ex- fully — the requirement as in articulated 1980— plain its through decisions a new proce- give was to the Board guidance some as to dure called the Statement of the Case. what error the perceived. claimant However, the act balanced this new disclo- sure rule with a requirement that claim- In interpreting the to make the statute ants respond to the SOC with a Substan- of an argument articulation optional, our tive that clearly must identify the dissenting colleagues divorce the sentence Congress 1. When overhauled the appellate of fact statement contained in [SJtatement process part judicial as of the introduction of to which the [C]ase claimant does not review, point it made a eliminating specifically However, express agreement.’’). presumption agreement. See 38 authority U.S.C. any Board retains the to dismiss 7105(d)(4) (2009) (“The § any claimant appeal in allegation that fails to make a specific presumed case agree not be 7105(d)(5) of error. 38 U.S.C. concept. relative reading is a ly, a liberal that a claimant provides in the statute proce- relevant eliminate the of error not allegations It does specific out set “should added) However, re- from it does (emphasis requirement. fact or law” dural it, the same within interpreting that follows sentence generous to be quire VA “may the Board statute, providing light of what submission allege fails to which any appeal dismiss to continue the claimant from needs law in the determi- of fact or error specific by look- easily This is illustrated process. dissenting Our being appealed.” nation ap- been requirement has at how the of the stat- essentially read out colleagues procedural distinctly different two plied to and thus mischar- this latter sentence ute requirements. is no holding. There acterize this Court’s requirement procedural no Perhaps means “should” holding that “implicit” less benefits is of veterans today adjudication holding “must.” Our The Federal “should,” latter sentence than the NOD. with the coupled burdensome Board’s not an regarding the it “is in the same has observed that statute Circuit authority to dismiss task,” finding that express and that onerous error, means “must” allege an merely re does NOD constitutes statement dismisses the Board when can be reason finding “terms that quires allegations specific out failing to set appellate desire ably construed lan- disregard cannot error. The Court F.3d Gallegos review.” in the Congress specifically included guage (Fed.Cir.2002). this 1309, Within 1314 authority to By giving the Board statute. liberally inter framework, the Court has failure for a claimant’s appeal dismiss an appellant an the statement preted error, essentially the statute the to state al why wasn’t claim] [his he “wonderfed] mandatory of an error the assertion makes an NOD as in 1985” to lowed back minimum, a claimant or, provides at a Anderson of his the effective date award. Board by the of dismissal assumes risk (2004). 371, 375 Vet.App. Principi, v. 18 course, if a Of asserted. if no error is spectrum, end of the On the other and the not assert error claimant does valid assertion setting forth a for standard the Substantive not dismiss Board does (CUE) in error error, and unmistakable to assert an clear for Appeal failure demanding. to review much more position in a decision is would not be a final Court “ claim of Appeal to be a valid the Substantive for there the issue whether ‘In order sense, claimant, short, where the In that must [CUE], was sufficient. ... [t]he essentially accepted the Sub- Board has as to how disagreement than a more assert ” of er- despite no assertion Appeal stantive evaluated.’ weighed were or the facts ror, authority to waived its has 412, Brown, 418 Vet.App. 9 v. Crippen assertion upon based no the appeal dismiss (1996) 3 Vet. Russell (quoting of error. banc)). (1992) (en 310, 313 App. degree of Interpreting Aleged an some provide

C. must claimant is, Appeal alleged error to what specificity as that, if and, of error it is the kind unless above, light In discussion face, true, “persua on its be CUE would appellant whether the we must determine why the given as to must be sive reasons toas adequate filed an manifestly differ have been would result point, claim. At this of his the 1979 denial Fugo alleged error.” ent but what means address it the Court must (1993) 40, Brown, (emphasis 44 Fundamental- liberally a document. read West, original); sponding requirement. illogi- see also Bustos It would be denied, 1378, (Fed.Cir.), F.3d cert. cal to hold that a adequate document was 145 L.Ed.2d 528 U.S. S.Ct. Appeal yet to be a Substantive did not (1999) (adopting interpre this Court’s sufficiently single define a issue for the 3.105). tation of 38 In this con C.F.R. Board to address. In this regard, text, we have that a liberal read recently observed Federal has Circuit discussed how theory “can fill in details where reading requirement [a] the liberal relates to out, a fully supply fleshed but it cannot obligation the Board’s to address theories Peake, theory that is absent.” Acciola v. of error in its Ultimately, decision. 22 Vet.App. concluded: suggest We also do not that under the easy why

It is to understand a CUE regulations entirely the veteran is re- demanding motion must meet a more stan obligation lieved of his or her to raise point dard than an NOD must. At the issues in the first instance before the VA filed, Secretary that an NOD is has being where the record is made. The issued an initial decision and does not need regulations quite clearly impose such anything to know prepare more to SOC obligation appeals, even in direct stating than that the claimant is dissatisfied. that “the Substantive must ei- comparison, challenges CUE motion ther being indicate theory final decision. Without of error perfected as to all ... issues or must claimant, expressed by specifically identify appeal- the issues roadmap necessary adjudicat lacks the ed.... Board may [T]he dismiss ing collateral attack. Andre v. Princ Cf. allege which fails to specific error (Fed.Cir.2002) ipa, F.3d determination, of fact or law in the (“[E]ach ‘specific’assertion of CUE consti determinations, being appealed.” subject tutes a claim that must be of a § 20.202 [ C.F.R. ]. before the [Board] Veter Shinseki, jurisdiction ans Court can exercise over Robinson v. 557 F.3d it.”). (Fed.Cir.2009). Acciola, explained we in lowering As Robinson ad- pleading threshold the CUE re current procedures, dressed the it quirement much only place too would not nonetheless informative of how we should an unmanageable Secretary, burden on the liberally purported Ap- read a Substantive veteran-unfriendly but would also have peal under the law as it existed in 1980. consequences even in cases where the Sec to Turning back the issue of whether the retary made a sincere effort to invent a correspondence in this case was sufficient words, theory for the claimant. In other satisfy Appeal require- the Substantive though reading require even the liberal ment, we conclude that it was not. The standard, claimant-friendly ment is a we appellant’s correspondence stat- Secretary must be mindful of what ed: in requires stage from a claimant at each in The form was sent out November properly adjudication order to continue the here, from the Veterans at Ponce. process. I why you can’t see the reason are send- Appeal complement- ing

The Substantive me the same form l-98[sic] by Secretary’s duty already up. ed to address all if it is filed Please search reasonably appellant, yet issues raised the records because no action has discussing Secretary’s hope you and the caselaw been taken. I can make evaluation, duty I scope illuminates the of the corre- since do not see ad the RO failed to have asserted that want to do it. why you would not reason in the piece I was 8 of evidence rights. particular I all the dress have [S]ince you give record, interpreta will me waiting. hope I that the RO erred its years very sick discussed, I feel appointment since new evidence tion of the consists Mayaguez final, treatment at and the was never or original nothing else. only pills law aspect of the substantive some fact that misapplied. Accordingly, the R. at 184. identify the claim does not the Board could refer Nothing paragraph in that identify any par that it could demonstrate why or any part of the SOC ences substantive, procedural, develop ticular might be appellant’s claim denial of the mental, agree cannot or notice error. We any finding dispute It does not erroneous. dissenting colleague that a claim with our It does fact made the RO decision. notification to the ant’s mere vaguest outline of include even the not deny an RO’s decision appealing that he is to address. It does error for the Board statutory reopen a claim to fulfills prior made in any argument reference the Board requirements precludes during Clearly, the claim. correspondence finding exercising from its discretion However, appellant is dissatisfied. Appeal inadequate to be based Substantive of an is the essence mere dissatisfaction allege any claimant to on a failure of the Similarly, the extent Mr. Ortiz’s NOD. RO decision. While acknowl error VA in March 1980 to “search request for discretionary authori “the Board’s inquiry edging is an the records” for his (or appeal, ty reject the Court into the status of his inquiry, status without and the Board’s continued equivalent)” concludes such error, assertion of RO is insufficient some “discretion to dismiss an administrative Appeal. At the to constitute Substantive if a was untime required. more is Appeal stage dissenting colleague ly inadequate,” our error for In the absence of an identifiable suggests that we should address address, we cannot conclude the Board to standard of review as to the issue Court’s re correspondence satisfies the that this filing a claimant’s below constitut whether Appeal. of a Substantive quirements Appeal. The standard of ed a Substantive clearly established in review was Gibson colleagues appear dissenting Our But change decline to it here. and we with “error.” We equate the term “issue” review, the 1980 any under standard of the 1980 letter identified the agree by Mr. do not documents submitted claim of service connection for general (i.e., Appeal constitute Substantive condition and it was understanda- nervous adequate Appeal) Substantive because contesting that Mr. Ortiz was whether ble at all in the they allege any fail to error had been sub- new and material evidence case, In 1979 RO decision. this two letters of that reopen prior mitted to denial explained appellant RO to the from the however, clear, that misses claim. To be that he had filed a that it had no record for Mr. Ortiz the mark. It is not sufficient ap that the Appeal and asked claim, rather, merely identify his but to That pellant Appeal. file a Substantive above, what error was he must state stated The request. not an unreasonable was by RO. there was committed be rewarded for his issue, appellant need not are only one claim at there v. Derwin cooperate. refusal to Wood that could be possible number of errors Cf. ski, (noting could alleged. example, appellant For duty always to assist a one- “[t]he you must submit VA Form 1-9 to reacti- street”). way (letter your appeal.”); vate R. at 195 appellant stating that 1-9 “was Our by conclusion is reinforced compar- never received Veterans Administra- ing the case to our prior some of decisions. tion”). Both Mr. Ortiz’s letters and Mr. Gibson, supra, circumstances Gibson’s Form 1-9 allega- contained no strikingly similar to presented in those tions of error of fact or law. Gibson, case. an RO denied the claim- ant an award response Further, of TDIU. In to that in another case where no Form decision, the claimant submitted, obtained VA Form 1-9 was the Court held that an 1-9, handwrote disagreement his “equivalent in correspondence” ato Form RO’s decision on separate sheets of paper, 1-9 must include allegations some of error attached those papers to the Form 1-9 of fact or law in VA’s decision. In Arch- document, and Brown, wrote “see attached sheets” bold v. the Court concluded that a on the form. This submission was treated filed, Substantive Appeal had been absent NOD, by issued, VA as an an SOC was 1-9, the submission of a VA Form because the claimant was asked submit a Form the appellant had submitted a “written 1-9. He did not do until so after the time statement presented [that was] to and ac to submit expired. the form ap- had On cepted by the Board specifically [that] peal, he maintained that original his sub- identified appealed the issue [and it] con mission of the Form 1-9 constituted an specific tained arguments as to the errors adequate although it made the RO.” 9 Vet.App. prior submitted case, the issuance of the In that appellant submit

SOC did not any specific set forth ted a written clarify document allegations of error fact or law. The claims at a Board hearing. Id. The docu Court held that original submission of ment set forth the seeking- benefit was 1-9, the Form even assuming it possi- a reinstatement of disability his 40% rating ble to consider it a separate document that had been reduced VA. He ex sheets, from the attached could not consti- plained particular how evidence supported tute a because it his belief that he higher was entitled to a specificity “lack[ed] section disability rating and stated his reduced 7105(d)(3), as reinforced through regula- rating was inadequate. Given this detailed tion, Gibson, requests.” 22 Vet.App. at 17. it, statement and the acceptance Board’s the Court determined this constituted a Gibson, inAs the appellant here indicat- Substantive Appeal because “contained subjective ed his to appeal desire necessary required information for a Board in his 1980 letters to VA. R. at 178 1-9 Appeal.” Id. (“Kindly requesting my status claim of appeal to Washington”). Both Archbold, Mr. Ortiz Unlike here appellant’s and Mr. Gibson were aware nothing that 1980 letters contain almost none of the they had submitted to accepted VA was necessary as required by information the a Substantive Appeal by the RO. See id. at appeal Form 1-9 they such that can be (“None 16 of the generated by documents construed an “equivalent as in correspon- the RO contained information indicating to dence.” The 1979 Form required 1-9 that appellant the that the RO had received or claimants set “in specific forth detail the accepted a from sought benefits your and rea- him.”); (“In see R. at 181 reference VA sons for believing that appealed the action Form 27, 1980, 2H138 received on March 1-9, from is erroneous.” VA See Form pleadings] se reading [pro sympathetically corre- “equivalent in To be an 1979.

June to balance rea sense common 1-9, apply at a must Form the 1979 spondence” against un to veterans assistance some sonable had to make appellant the minimum 22 Vet. Secretary.” the in burdens on was due why the SOC explain effort in correspondence As the his at 327. App. identified appellant the error. While rough a or state failed to even theory why case this claim, no reason he asserted error, the Board’s of allegation the 1979 inarticulate incorrect as was the SOC correct.2 determination effective-date requires. sys benefits veterans Ultimately, the IV. CONCLUSION era before in the particularly tem— foregoing, of the consideration Upon requires created —sometimes Court AF- August decision Board’s passive participants. more to be than claimants FIRMED. Derwinski, Vet.App. Dusek . Cf (1992) of (affirming the denial 519, 521-22 KASOLD, GREENE, Judge, and Chief rating disability an increased a claim for dissenting opinions. filed Judge, coop refusal to claimant’s upon the based examination); a VA medical erate KASOLD, dissenting: Judge, Wood, (noting “[t]he Vet.App. at paragraphs first reading the few Anyone one-way always not duty to assist and laid found facts as of the street”). recognized has Court with a is left opinion majority in the re out have infinite does not system (1) Mr. Ortiz understanding that Brown, clear Grivois sources. to the about his timely inquired Accordingly, appro it is (2) received Board, the RO either never those Secretary to conserve priate for it, informed Mr. and appeal or lost level his a reasonable by requiring resources 1-9, a VA Form he must file In the Ortiz Id. from claimant. cooperation of replied RO frustrated context appeal form already filed an had in regulations require effect and statute appeal processed he wanted terms general least to state at appellant condi- for his “nervous benefits As wanted was erroneous. decision why the RO’s tion,” by Acciola, later characterized is not “the Court we stressed It clear from is also bipolar disorder. Me bright-line rule. establish a trying to and laid by the Board facts as found un easily misapplied rules chanical Ortiz’s majority that Mr. by the out Rather pro pleadings. se sophisticated reason and been denied one had task of claim that the difficult recognizes Court RO dissenting colleague, assuming, as our 2. Even states, therefore, Greene, claim, erred that the RO was final. The Judge denying Chief forwarding to the Board time, in 1980 in not long, how no matter passage of mere response adequacy Mr. Ortiz's issue fix a adequacy cannot resolving the issue Appeal, the fact as a Substantive to the SOC passage of time cannot appeal. The broken open and adequacy remained that the issue the denial of appeal as to resuscitate the Board does resolved pending until effectuated appeal was not where the claim based on for benefits the claim mean that Appeal. Because proper Substantive awith pending open and bipolar remained disorder inadequate as a here was submission pend- did not remain years. The claim for 25 matter how it does not Substantive 1980 years Mr. Ortiz's ing for because 25 adequacy of the Substan- long the issue of ultimately deter- correctly submission pending. Appeal was inadequate tive be the Board to by mined 363 i.e., only, one because reason “the evidence majority lay out the rele vant facts at the submitted was deemed outset of their opinion, insufficient or inad their subsequent discussion analysis equate to warrant a reopening of his regarding whether a Appeal claim,” i.e., failure to submit and ma new had been inexplicably filed only focuses on 354; terial evidence. Ante at see also Mr. Ortiz’s 1980 letter to the Secre Peake, (2007) 11, 22 Vet.App. Gibson 15 tary. Ante at 358-60. Such a narrow (Court reviews Substantive de Appeal focus is not law. Whether or not novo). Appeal or equivalent has The RO’s direction that Mr. Ortiz had to been filed is determined considering the appeal submit his on a VA Form totality circumstances, 1-9 to Gibson, 22 claim, Vet.App. reinstate his R. at at (April (“evaluating 1980 17 the content and circumstances” letter from the RO the veteran’s advising Ortiz that sub missions to determine they whether “he consti must submit VA Form 1-9 to reacti tute an NOD and a Appeal); added), vate appeal”) (emphasis West, Jarvis v. 12 Vet.App. cf. not and is not the law. See 38 C.F.R. (1999) (“In determining whether a written (1980) § (appealing 19.116 to the Board NOD, communication constitutes an on de may executed with a VA Form 1-9 “or review, novo the Court looks at both the equivalent its in correspondence from a actual wording of the communication and claimant or his representative following written.”), context which it was furnishing of a Statement of the providing a sympathetic liberal and read Case”); (2009) § see also 38 C.F.R. 20.202 ing of pleadings, see Szemraj v. Princi (providing that an appeal consists of a VA pi, (Fed.Cir.2004) 357 F.3d correspondence 9 “or containing the (stating that with respect to “all pro se information”). necessary While might one pleadings, [the Board and the be critical of Mr. Ortiz apparent for his required give sympathetic to] read frustration, it is axiomatic the RO filings”) to the veteran’s (citing Rober could filing not force the of a VA Form 1-9 (Fed.Cir. son v. 251 F.3d Moreover, before processing appeal. 2001)); West, Moore early the Court recognized that laches (1999) (stating that “submissions will apply against a veteran. Browder claimants are to liberally”); be read see Derwinski, (1991) 1 Vet.App. Peake, also Acciola v. 22 Vet.App. 320 “that (concluding system the VA benefits (2008) (Secretary conceding that even as well as the Veterans’ Judicial Review pleadings by a veteran’s representa filed Act against application both militate tive sympathetically). are to be read the doctrine [of laches] cases before this The result majority reached Derwinski, (citing Court” Manio v. 1 Vet. simply comes and plainly from their im- (1991))). App. Furthermore, it is the plicit holding “should” means “must” Board, RO, not the authority has the controlling statute regulation, appeal dismiss an if the Substantive provided and in the notice to Mr. Ortiz. inadequate. 38 U.S.C. 4005(d)(5) (“The § U.S.C. should 4005(d)(5) (1980) (“The § Board of Veter specific allegations set out of error of fact ans’ ... any appeal dismiss law, or allegations such related specific allege which specific fails error of fact (em- items in the statement the case.” being law the determination appeal added)); phasis § 38 C.F.R. 19.116 ed.”), 7105(5). (“The now codified as 38 U.S.C. set out specific should allega- 20.1404(b) (2009); v. also Andre § see (emphasis law.” of fact or of error

tions (Fed.Cir. 1354, 1361 (October 301 F.3d Principi, letter added));3 R. at 171 “[ujnlike 2002) claim for a (noting set out” that he “should advising Mr. Ortiz benefits, specific a a claim subsumes attached VA CUE on the arguments added)). therefore holding, In of error” and allegation so (emphasis 1-9 error alleged however, to consider claimant must describe majority fail with veterans benefits with dealing specificity). statutes of the liberally favor be construed to on majority’s reliance Gib- Similarly, the Gardner, 513 U.S. Brown veteran. See son, holding implicit supra, support its 115, 120, 130 L.Ed.2d S.Ct. key a ignores means “must” “should” (1994); also Gomez see Gibson, in the cases. difference factual J., (Steinberg, purported be unrea- (noting that it would concurring) a SOC was issued. Without filed before meaning “should” as interpret sonable (and is) SOC, impossible be it would the stat- the next sentence of “must” when were what issues in the SOC understand “must”). the word utory section uses (are) Here, in con- disputed. stark being read “shall” as possible might It trast, letters were sent Mr. Oritz’s “should,” complete context of given the the SOC shortly after he received scheme, wholly incon- statutory but is failure, as only one issue—the addressed favor- with a liberal construction gruous RO, and to submit new determined a nonman- to construe able to the veteran readily un- making it material evidence— mandatory “must” datory “should” contest- what Mr. Ortiz was derstandable dealing with a statute interpreting when ing.4 administrative filing requirements benefits, as is seeking appeal for veteran supports de novo Although our caselaw the case here. con- pleading below review of whether I note that a Substantive stitutes dealing majority’s reliance on cases had, and continues to the Board holding its that “should” with CUE for have, an adminis- discretion to dismiss wholly inapposite. CUE means “must” Appeal was if a Substantive final de trative attacking an otherwise deals with inadequate. See 38 U.S.C. untimely or cision, Am. Veterans Gob see Disabled 4005(d)(5) (1980) (“The (Fed.Cir.2000), Board of Veter- § er, 234 F.3d any appeal may ... Appeals ans’ dismiss regulation uses mandato and the CUE fact allege specific error of nonmandatory which fails to ry opposed “must” as being appeal- law in the determination to set regard to need “should” with added)) (now codified as (emphasis ed.” fact or law. 38 C.F.R. forth clear error of regulation gov- statutory provision authority to and lacks the 3. Inasmuch as the RO erning Appeal continue to use the Substantive Appeal has a Substantive determine whether regard to the contents "should” filed, 4005(d)(5) (1980) § 38 U.S.C. been see Appeal. ("The Appeals ... of Veterans’ allege spe- any appeal which fails to dismiss description possible majority's issues 4. The fact or law in the determination cific error of herring. a red Ante at 360. (now 38 U.S.C. being appealed.") codified as Surely, issues, delineated such Mr. Ortiz could have 7105(5)), review it the Board did determi- simply appealing the RO's but regulations 2005 statute until not submitted new nation that he had authority. governing The result issue identifica- evidence is sufficient could be the material same, however, appeal. tion administrative applicable since is the 7105(5)). § U.S.C. The discretion vested stances and liberal reading permit an un- in the certainly brings Board ques- into derstanding of the issue appeal, the tion what our of standard review should statute is satisfied. Mr. Ortiz met that be, 7261(a)(3)(A) (conclu- § see 38 U.S.C. standard, and Secretary the erred in not of sions the reviewed under the processing appeal. his pro- failure to “arbitrary, capricious, an abuse of discre- cess kept his Mr. Ortiz’s open claim tion or otherwise not in accordance until Secretary finally addressed this review); law” standard of see also Foster granted connection, issue and service giv- Derwinski, 1 Vet.App. ing rise to the effective date issue now on (review of Secretary’s discretionary appeal. 4005(d)(5) (1980) § See 38 U.S.C. determinations is “arbitrary, under Board, (giving RO, not the the authori- capricious, an abuse of discretion or oth- ty to dismiss an appeal failing for erwise not in accordance with law” stan- fact) (now allege specific error of law and dard), but even under the “arbitrary and 7105(5)). § codified as 38 U.S.C. Under capricious” review, standard of circumstances, these be en- Board’s decision that Mr. filings Ortiz’s titled to an effective date for the award of under the circumstances of this case were benefits early as date of his insufficient to constitute a Substantive claim to reopen, or the date his entitlement Appeal would arbitrary be and capricious arose, whichever is later. 38 U.S.C. because the issue on administrative re- 5110(a); § 38 C.F.R. 3.400 i.e., view readily the RO’s discernable — Accordingly, I believe that the decision finding that Mr. Ortiz failed to submit of the Board regarding an effective date new and material majori- evidence. The should be set aside and the matter re- ty’s conclusion the contrary can manded adjudication proper ef- only by reached transforming permissive fective date. statutory and regulatory language into mandatory language requiring Mr. Ortiz GREENE, Judge, Chief dissenting: to provide specific language in his documents, without consideration I agree with Judge Kasold’s totality of the circumstances under which analysis, I write separately to highlight a reverses, the documents filed. were This points. few Mr. Ortiz’s March 1980 state- explanation, caselaw, without previous our in support ment of claim and his Gibson, supra, gives new meaning to indicate that letter believed he duty to assist and a sym- liberal and had filed a VA Form 1-9 in November pathetic reading pleadings! See Szem- 1979 with regard to claim and adminis- Acciola, raj, Moore, Gibson, su- all trative appeal, days within 60 after receiv- pra. ing the October 1979 SOC. The June 1980 response from the which nota-

Finally, majority’s Secretary, concern bly lack of was addressed to person infinite another resources commendable, copy no it but misses the 1-9 that was mark. No organization resources, purportedly sent yet has infinite with the letter is con- adherence to the law tained in the nevertheless is re- record on appeal, informed Here, quired. the law Mr. Ortiz that encourages a claim- his VA Form 1-9 had not specify ant to the issues on administrative been received and that complete he should appeal; Rather, require does it. new VA Form 1-9 and send it back to provide “should” such the days RO within 30 or else no further specificity, totality but if the of the circum- action would be taken on his appeal. adequa and timeliness made as to the an was that after regulation provided

1980 VA the by Board. responses Mr. Ortiz’s cy to of filed, had discretion the RO NOD 3.160(c) (2009) (“pending § was re- 38 response if no C.F.R. only close a case formal or infor application, 38 C.F.R. claim” is “[a]n See to the SOC. ceived finally adjudicat mal, 19.121(a) been which has not § Vet.App. 16 ed”); v. Myers see had Mr. Ortiz Assuming arguendo (2002) claim remains 228, (holding that 235 letter, he understood actually received the appellate status placed it is after open him, and that to it was directed Board); also by see resolution and before 1-9, VA Form another provided had been 359, Brown, Vet.App. 361 8 Tablazon v. to submissions May 1980 March and his (claim (1995) where RO pending remains response RO, each made which were the issuing SOC procedures to follow fails SOC, were submitted 1979 to the October NOD). timely files after claimant 1979 September RO year one of within section required As August decision. 2005 the Board 4005(d)(3), to the timeli questions finally made on decision here those documents of adequacy ness or adequacy regarding determination by the Board. been resolved should have and 1980 state- Mr. Ortiz’s March 317, Nicholson, Vet.App. 20 v. Tropf See the 25 ments, negate that decision does (“[A] (2006) ambiguous statute 321 n. 1 pending claim was year period ordinary only application when the Myers was made. See before the decision rules of con the words and meaning of Tablazón, supra. As stated both regu of the plain language to struction above, RO awarded Mr. in March at question is lation fails answer bipolar disor- service connection meanings word .... sue Without standard disability rating and 70% der with a construction, Congress neither and rules of award rating of TDIU. Because how to write Secretary can know nor the still Ortiz’s claim was while Mr. granted way conveys their in a authorities that the Board erred I would pending, hold impor or-more practitioner no intent and period the entire by not considering x-ely a statute can tantly-veteran to determine pending the claim was which appears what regulation mean date. See U.S.C. proper effective Derwinski, 1 say.”); see also Gardner 5110(a). Accordingly, § I must dissent. (“Determining a meaning requires examining plain statute’s at issue and the over specific language statute.”), sub all structure aff'd Brown, F.3d

nom. Gardner (Fed.Cir.1993), aff'd, U.S. RICKETT, Appellant, William C. (1994); L.Ed.2d S.Ct. 19.121(a) (1980). Thus, the § RO C.F.R. SHINSEKI, Secretary of Eric K. before case by closing Ortiz’s erred Affairs, Appellee. Veterans May 1980 state forwarding March liberally read No. 09-2493. ments to the Board the timeliness documents and determine Appeals Court United States responses SOC. adequacy Claims. for Veterans 4005(d)(3); 38 C.F.R. See 38 U.S.C. 19, 2010. March (1980). Therefore, 19.116, 19.121(a) §§ requirement, following that without a decision pending until

claim remained

Case Details

Case Name: Roberto v. Ortiz v. Eric K. Shinseki

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Mar 3, 2010

Citation: 23 Vet. App. 353

Docket Number: 06-0932

Court Abbreviation: Vet. App.