Hayre v. Principi , 15 Vet. App. 48 ( 2001 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 95-984
GARRETT V. HAYRE, APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided June 14, 2001 )
Linda E. Blauhut, Esq., of Washington, D.C., was on the brief for the appellant.
Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Thomas A.
McLaghlin, Special Assistant to the Assistant General Counsel; and Amy S. Gordon, all of
Washington, D.C., were on the brief for the appellee.
Before KRAMER, Chief Judge, and HOLDAWAY and IVERS, Judges.
HOLDAWAY, Judge, filed the opinion of the Court. KRAMER, Chief Judge, concurring
in part and dissenting in part as to dismissal.
HOLDAWAY, Judge: The appellant, Garrett V. Hayre, appeals from a June 1995 decision
of the Board of Veterans' Appeals (BVA or Board) which determined that clear and unmistakable
error (CUE) did not exist in a November 1972 VA regional office (VARO) decision. In December
1997, this Court affirmed the Board's decision. On appeal, the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) affirmed the Court's decision that the November 1972 VARO decision did
not contain CUE, but remanded the matter to determine whether the VARO breached its "duty to
assist" in 1972 by failing to obtain certain requested service medical records (SMRs) that had not
been previously obtained. Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999). This issue stemmed from
a 1972 VARO adjudication as to which a Notice of Disagreement (NOD) was filed in 1973, a
Statement of the Case (SOC) was issued, but the appellant, for whatever reason, failed to properly
press his appeal. The Federal Circuit held that if the VARO "breached the duty to assist in 1972,
then the 1972 decision [wa]s not final for the purposes of direct appeal" and therefore, the appellant's
claim would still be open and unadjudicated. Id. at 1335. The Federal Circuit directed this Court,
if we found such a violation, to remand the case to the Secretary for further adjudication on the
theory that the 1972 case remained open, notwithstanding its finality under relevant statutory law.
In April 2000, this Court ordered additional briefings on, inter alia, a troubling issue of
jurisdiction that the Federal Circuit had not addressed in its disposition of the case. In sum, the
Court asked the parties to address the following three questions: (1) Does this Court have jurisdiction
over the issue remanded by the Federal Circuit?; (2) Was the Secretary required to provide assistance
to the appellant in 1972?; and if so (3) Did the Secretary fulfill his duty to assist? In response, the
parties agreed that the Court had jurisdiction over this matter, that the Secretary was required to
provide assistance to the appellant in 1972, and that the Secretary had breached that duty to assist.
Thus, the parties, both quoting the Federal Circuit's opinion, asserted that the Court should "remand
the case to permit the [Secretary] the opportunity to fulfill the duty to assist and to review the case
to determine whether the additional evidence, together with the evidence that was previously of
record, supports the allowance of benefits sought on appeal." Id.Although, the Secretary "conceded" jurisdiction, and requested a remand, he appeared
troubled by the same sort of jurisdictional problems which presently concern this Court. In his view,
the Federal Circuit’s opinion, at least implicitly, found jurisdiction for its decision, and therefore,
this Court must comply with the Federal Circuit's mandate. However, jurisdiction is a matter that
cannot be so easily "finessed." This Court must affirmatively satisfy itself that it has authority to act.
See Insurance Corp. of Ireland, LTD, et al., v. Compagnie des Bauxites de Guinee, 456 U.S. 694,
702, 102 S.Ct. 2099, 2104, 72 L.Ed. 2d 492 (1982) (Citing Mansfield, C. & L. M. R. Co. v.
Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884) (holding that a court must deny
jurisdiction "in all cases where such jurisdiction does not affirmatively appear in the record")). We
cannot accept jurisdiction simply because the parties conceded it. See e.g. Grantham v. Brown, 114
F.3d 1156, 1158 (Fed. Cir. 1997); see also Insurance Corp. of Ireland, LTD, et al., supra;
California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.3d 342 (1972) (noting that " parties may
not confer jurisdiction . . . upon th[e] . . . Court by stipulation). Jurisdiction must derive exclusively
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from a clear and unambiguous act of Congress. See Christianson v. Colt Industries Operating
Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988) (quoting Sheldon v. Sill,
8 How. 441, 12 L.Ed. 1147 (1850) ("Courts created by statute can have no jurisdiction but such as
the statute confers.")); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed. Cir. 1991); Archbold v.
Brown, 9 Vet.App. 124, 130 (1996). Jurisdiction may not be "assumed," "conceded," or "implied,"
and cannot be bestowed on a court by the court itself, or any other court. Moreover, the act of
Congress bestowing jurisdiction must be strictly construed. See Healy v. Ratta, 292 U.S. 263, 54
S.Ct. 700, 78 L.Ed. 1248 (1934); United States ex rel. McKenzie v. Bellsouth Telecommunications,
Inc., 123 F.3d 935, 940 (6th Cir. 1997); United States ex rel. Precision Co. v. Koch Indus., Inc.,
971 F.2d. 548 (10th Cir. 1992), cert. denied, 507 U.S. 951, 113 S.Ct. 1364, 122 L.Ed.2d 742(1993); Livinston v. Derwinski, 959 F.2d 224, 225 (Fed. Cir. 1992) (holding that the Federal Circuit's
"jurisdictional scheme must be strictly construed in harmony with [its] Congressional mandate" and
that it could not "extend [its] jurisdiction where none exist[ed]" (citing both Chemical Eng'g Corp.
v. Marlo, Inc., 754 F.2d 331, 333 (Fed. Cir. 1984) and Christianson, supra)); F & S Construction
Company, Inc. v. Jensen 337 F.2d 160, 161 (1964); Aetna Ins. Co. v. Chicago, R.I. & P.R.R., 229
F.2d 584 (10th Cir., 1959);. Therefore, we say with the greatest respect to the Federal Circuit, that
the mere fact that the Federal Circuit assumed jurisdiction over the 1972 adjudication without
articulating a jurisdictional basis for doing so is not dispositive as to this Court.
If this Court cannot honestly articulate a persuasive and plausible rationale for jurisdiction,
then we have no choice but to say so candidly, and rule accordingly. See Grantham, supra.Contrary to the apparent position of the Secretary, the mandate of the Federal Circuit in this case
does not preclude consideration of the jurisdictional issue. Implicit in the consideration of any issue
is the always inherent question of jurisdiction over that issue. This is particularly true in this case
where neither the jurisdictional issue nor the issue of the so-called "finality" of the 1972 adjudicative
determination was ever raised before either the BVA or this Court. The sole issue before the BVA
and this Court on our initial review was whether there was CUE in the 1972 adjudication. The
finality of the 1972 adjudication was never an issue which was raised before the BVA or this Court.
The Federal Circuit affirmed this Court as to the CUE claim, a claim which we note necessarily
assumes the finality of the adjudication being collaterally attacked.
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Before turning to the specifics of this case, it may be helpful to review the jurisdictional
prerequisites that apply to this Court. The first requirement is that this Court may only review final
decisions of the BVA. See Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat.
4105, 4122 (1988) (found at 38 U.S.C. § 7251 note) [hereinafter VJRA §402]; see also 38 U.S.C.
§§ 7105, 7252 (a), and 7266 (a); see also Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998); Archbold,
supra; Manio v. Derwinski, 1 Vet.App. 140, 144 (1991). We have no authority to review RO
adjudicative determinations. Id. Moreover, the claim (or issue) that has been reviewed by the BVA
must have been the subject of an NOD as to the underlying RO adjudication that was filed on or after
November 18, 1988, see VJRA § 402; see also Barrera v. Gober, 122 F.3d. 1030, 1031 (Fed. Cir.
1997); Archbold, supra, and that NOD must have been filed within one year of the adjudicative
determination that the claimant disagrees with. See VJRA §402; 38 U.S.C. §§ 7105 (b)(1) and
(b)(2); 38 C.F.R. § 20.302 (a); see also Ledford, supra.Turning now to the case, the appellant filed a timely NOD in 1973 as to the 1972 adjudicative
determination, but did not pursue his appeal after the SOC was submitted. That is the only NOD that
was ever filed with respect to the 1972 adjudication. The appellant points to an NOD filed in 1993,
where he was attempting to show CUE as to the 1972 adjudication. However, this NOD was filed
in response to a December 1992 decision on an entirely separate claim. In effect, the appellant
wishes his 1993 NOD to serve a dual purpose: as an explicit NOD to its underlying adjudicative
determination, and also as an implicit NOD to an earlier adjudicative determination (the 1972
decision for which an NOD had, in any event, already been filed).
The problems with this argument are these: (1) the 1993 NOD was filed nineteen years after
the one-year statutory and regulatory requirements for filing an NOD; and (2) even asserting a theory
of estoppel that would, nunc pro tunc, reach back and toll the statutory time limit for filing an NOD,
this Court cannot ignore the fact that the 1993 NOD was submitted in response to a rating decision
for an entirely separate claim, filed in September 1992, which claim in no way, explicitly or
implicitly, purported to challenge the "issue of the finality" of the 1972 adjudication.
To base this Court's jurisdiction over the 1972 adjudication on the 1993 NOD would be in
direct violation of other Federal Circuit decisions that have interrupted this Court's jurisdiction. In
Ledford, supra, the Federal Circuit observed that this Court's jurisdiction "is premised on and
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defined by the Board's decision." See Ledford, 136 F.3d at 779. When the Board has not rendered
a decision on a particular issue the Court has no jurisdiction. In the same case, the Federal Circuit
held that for this Court to have jurisdiction, the NOD must have been filed after November 18, 1988,
and that the NOD must relate to a specific adjudicative determination on a specific date. Id., see also
Howard v. Gober, 220 F.3d 134 (Fed. Cir. 2000).
Even if the 1993 NOD were to be interpreted as a "Collaro" type statement that "cut the
rough stone" of the 1973 NOD, and thus perfected it, we would still be unable to assert jurisdiction
because the "perfected" 1973 NOD would not have been filed on or after November 18, 1988. See
VJRA § 402; Collaro v. West, 136 F.3d 1304 (Fed. Cir. 1998); Ledford, supra.The Court notes the dissenting statement by the Chief Judge, and will briefly respond to it.
First, it needs to be said that in this case the Federal Circuit never articulated a theory of its purported
jurisdiction over the 1972 adjudication, even though its action was clearly premised on the fact that
it considered the 1972 adjudication still open and "adjudicable" because of a "grave procedural
error." The NOD conundrum as it relates to the 1972 adjudication was apparently never presented
to them, else they would have, no doubt, included an analysis of it in their opinion. Our colleague
therefore attempts to defend the Federal Circuit's jurisdiction by, first of all, refuting the very basis
of their opinion, i.e., that the 1972 adjudication is still "open." He acknowledges that there is no
jurisdiction over the 1972 adjudication, and then fashions a theory of jurisdiction which might as
well be termed as "What the Federal Circuit might have said had it been presented with the problem
and articulated a theory of jurisdiction." If we correctly understand his argument, it is, reduced to
simple terms, this: While there is no jurisdiction over the 1972 claim, there is jurisdiction over an
issue (i.e. an effective date) inherent in and raised by that claim. To concede, on the one hand, that
we do not have de jure review authority over the 1972 adjudication, but that, through a ruse, i.e. an
NOD to another claim, we nevertheless have some kind of authority to, de facto,"complete" the 1972
adjudication, is sophistry of a very high order. This argument ignores, as it must, the plain and
unambiguous language of VJRA § 402, 38 U.S.C. § 7105, and 38 C.F.R. § 20.302 requiring that an
NOD must be filed no later than one year after the adjudicative determination. Therefore, even if
the 1992 NOD (which related exclusively to CUE as to the 1972 adjudication) could somehow be
construed as reviving an issue brought by the 1972 claim, it was filed nineteen years too late.
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In any event, the appellant filed an NOD in 1973. Taking Chief Judge Kramer's theory of
jurisdiction to its logical (or illogical) conclusion, there would literally be no pre-1988 adjudications
over which we could not have jurisdiction. All one would have to do is ferret out a "grave
procedural error," whatever that is, and presto, the adjudication is given new life notwithstanding
the fact that it is an adjudication over which, as our colleague admits, this Court has no jurisdiction.
In fairness to the Chief Judge, it appears that he is attempting to avoid a confrontation with
our hierarchal judicial superiors, and in so doing, has tried valiantly, albeit vainly, to make a silk
purse out of a sow's ear. We are sympathetic with his efforts, as we are very respectful of the court
above, and do not relish the position in which we have been placed. We must either pay heed to the
Federal Circuit in a situation where they did not articulate jurisdiction, or adhere to the clear and
unambiguous judicial enactments of Congress. In good conscience, we cannot do both. Since it is
Congress, not the courts, that defines our jurisdiction, we must necessarily defer to them. The
interpretation suggested by our colleague, which we emphasize is not the position of the Federal
Circuit, would pervert the clear meaning of the statute and regulation to such an extent as to render
them both meaningless. A worse case of judicial usurpation can scarcely be imagined. While the
Chief Judge cites to Woods and Tablazon for the proposition that this Court's precedents require us
now to assume jurisdiction over pre-VJRA claims which lack timely post-VJRA NODs, those
decisions were, at least in their assumptions as to the issue of jurisdiction, much like the Federal
Circuit's decision in Hayre, supra., i.e., decisions which neither articulated a basis for jurisdiction
over the case on appeal, nor considered the Congressionally mandated limits to our appellate review
authority. Such unarticulated assumptions as to jurisdiction cannot be treated as precedent. There
simply is no jurisdictional "holding" in these cases.
In summary, we cannot find, try as we might, a rationale that would permit us ethically, or
intellectually, to construct a plausible theory of jurisdiction in this case. We reach this conclusion
reluctantly, as it places us in potential conflict with the court that Congress has placed above us for
review of legal questions. We respect the Court and its directions to us, and we must comply with
those directions where we have the jurisdiction to do so. We also recognize that had the Federal
Circuit explicitly articulated a theory of jurisdiction in this case, we would be bound by that
interpretation as law of the case even if we personally, as judges, disagreed with its rationale, and
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even though that interpretation would seem to run counter with the plain language of the statute, as
well as other precedent from the same court. However, there is no such interpretation in this case,
and we cannot accept jurisdiction in face of the plain language of our jurisdictional statutes that, in
our view, preclude jurisdiction, as well as other cases cited above from the Federal Circuit that lead
to the same conclusion. The case is DISMISSED.
KRAMER, Chief Judge, concurring in part and dissenting in part as to dismissal: I agree
with the majority that in order for the Court to have jurisdiction over a claim of "grave procedural
error" as defined by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Hayre
v. West, 188 F.3d 1327 (Fed. Cir. 1999) [hereinafter Hayre claim], the appellant must have filed a
jurisdictionally valid Notice of Disagreement (NOD) as to that claim. However, I disagree with the
holdings of the majority that such an NOD could not confer on the Court jurisdiction to consider,
in resolving the present claim, whether there was grave procedural error as to a 1972 VA regional
office (RO) decision and that, assuming that such an NOD could confer jurisdiction, the appellant
in this case has not filed such an NOD. Accordingly, I would hold that the Court has jurisdiction to
consider the Hayre claim as to the 1972 RO decision and would vacate the Board's June 7, 1995,
decision and remand the 1989 rating claim for adjudication consistent with the following analysis
and the Federal Circuit's opinion here.
I. FACTS
The appellant, Garrett V. Hayre, served on active duty in the U.S. Marine Corps from June
1969 to October 1971, with combat service in Vietnam for which he was awarded several
decorations. Record (R.) at 11. In October 1972, he filed a claim for service-connected disability
compensation for a "nerve problem" and indicated that while in service he had twice consulted
service medical personnel for his nerve problem. R. at 14-17. In November 1972, the RO denied
the appellant's claim for service connection for a nervous disorder. R. at 41-42. In September 1973,
he filed a statement disagreeing with that denial. R. at 44. The RO issued a Statement of the Case
(SOC) (R. at 46-49), but there is no evidence that the appellant filed a Substantive Appeal to the
Board of Veterans' Appeals (BVA or Board) as to that claim.
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On September 2, 1992, the RO received a statement by the appellant that he was experiencing
depression, stress, and other problems. R. at 146. He then filed a formal claim for post-traumatic
stress disorder (PTSD). R. at 149-52. In December 1992, the RO granted the appellant service
connection for PTSD and assigned a 50% rating, effective September 2, 1992. R. at 181-82. In
March 1993, he filed with the RO a statement as follows:
The rating decision of November 6, 1972, is clearly erroneous in its denial for
service connection of a nervous condition claimed by the veteran.
Mr. Hayre served honorably in the U.S. Marines from 6-24-69 until 10-29-71,
he filed [an application for compensation] for a "nerve problem", that warranted him
seeing a psychiatrist at a duty station in Rhode Island, October of [19]71. The claim
form is date stamped September 29, 1972.
The regional office requested this man[']s service medicals and subsequently
denied his claim based sole[l]y on the [service medical records (SMRs)], without the
benefit of a VA exam[ination] being considered.
The action taken by the original office of jurisdiction is clearly erroneous in
that they failed to properly develop this man[']s claim, by not requesting necessary
clinical records from the department of service or the facilities named. Along with
the lack of assistance to secure records necessary for rating action, this man was not
afforded a VA exam[ination].
Due to the long history of a variety of diagnos[e]s, that ultimately resulted in
a grant of service connection for PTSD, the earlier effective date would be in order.
R. at 184. In April 1993, the RO characterized the appellant's claim as one for clear and
unmistakable error (CUE) in the November 1972 RO decision and denied that claim and, in essence,
an earlier effective date. R. at 187-88. In early June 1993, the appellant filed the following
statement:
Notice of disagreement with rating decision of April 8, 1993. . . .
The original rating evaluated the veteran[']s claim on incomplete medical
records. The duty to assist in the development of the claim was clearly absent. The
veteran elaborated when and where he was seen by a psychiatrist . . . . The absence
of the medical records from the [SMR] packet, regarding psychiatric visits, was not
developed, no additional information was sought, either from the veteran or the
service department.
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This man[']s claim was filed within [a] year of separation, he had stated dates
and places where he had received psychiatric treatment, when the [SMRs] came in
and didn't include the psychiatric records, the [RO's decision] was to disallow the
claim, and not request additional records or a VA exam[ination].
This man[']s symptoms have been consistent over the years. There are several
entries where the veteran was diagnosed and treated for PTSD at VA facilities as
early as 1981, which could have warranted an earlier effective date of the award.
R. at 194. Later in June 1993, the RO issued an SOC addressing the CUE claim. R. at 196-202.
The appellant filed in the same month a Substantive Appeal in which he stated:
Evidence was available in my [SMRs] regarding psychiatric treatment that should
have prompted you to schedule an exam[ination]. Other evidence could have been
obtained by the VA if I was to be given due process.
Since I am service connected for PTSD[,] it is obvious that the disability is the result
of service. I have filed for PTSD on three different occasions and the end result is
that my claims have been valid. Your reasons for denying the earlier effective date
based on a clearly erroneous decision dated 11/6/72 are not valid.
R. at 204. In the June 7, 1995, BVA decision here on appeal, the Board, relying on Caffrey
v. Brown, 6 Vet.App. 377 (1994), concluded that the appellant's claim of CUE in the November 1972
RO decision was "not well grounded" because "VA's breach of its duty to assist cannot form the
basis for a claim of [CUE]" and dismissed the appeal. R. at 7-8.
The appellant appealed to this Court. In his brief, he argued, inter alia, that the Board erred
in determining that this case was controlled by this Court's opinion in Caffrey, 6 Vet.App. at 383
(holding that VA breach of duty to assist generally cannot be basis of CUE claim). He maintained
that the cases were distinguishable on the ground that in Caffrey, 6 Vet.App. at 383, any "failure [of
the duty to assist] resulted in the creation of an incomplete rather than an incorrect record" because
the documents at issue were private records that could have been obtained by the appellant, whereas
in this case, the breach of the duty to assist was more significant in that VA had failed to satisfy its
regulatory obligation to obtain SMRs before adjudicating the claim. Brief at 11-15. In a December
1997 single-judge memorandum decision, this Court affirmed the June 1995 BVA decision as to
CUE on the ground that the appellant had "not established that VA breached its duty to assist or that
the alleged records would be outcome determinative." Hayre v. Gober, U.S. Vet. App. No. 95-984,
mem. dec. at 4 (Dec. 2, 1997) (mem. dec.). The appellant appealed, and in August 1999 the Federal
9
Circuit affirmed this Court's decision as to CUE. Hayre, 188 F.3d at 1333. However, the Federal
Circuit held that "a single request for pertinent SMRs specifically requested by the claimant and not
obtained by the RO does not fulfill the duty to assist." Hayre, 188 F.3d at 1332. The Federal Circuit
further held:
In cases of grave procedural error, . . . the Court of Appeals for Veterans Claims has
consistently held that RO or Board decisions are not final for purposes of direct
appeal. . . . A breach of the duty to assist in which the VA failed to obtain pertinent
SMRs specifically requested by the claimant and failed to provide the claimant with
notice explaining the deficiency is a procedural error of, at least, comparable gravity
that vitiates the finality of an RO decision for purposes of direct appeal.
Hayre, 188 F.3d at 1333. The Federal Circuit then specifically instructed this Court that "where
there is a breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically
requested by the claimant and failed to provide the claimant with notice explaining the deficiency,
the claim does not become final for purposes of appeal" and remanded the case to this Court for a
determination as to "whether the RO breached its duty to assist as defined in 1972." Hayre,
188 F.3d at 1334-35. The Federal Circuit noted:
[I]f the Court of Appeals for Veterans Claims finds that the RO breached the duty to
assist in 1972, then the 1972 RO decision is not final for purposes of direct appeal.
In such a case, the Court of Appeals for Veterans Claims would need to remand the
case to permit the [agency of original jurisdiction] the opportunity to fulfill the duty
to assist and to review the case to determine whether the additional evidence,
together with the evidence that was previously of record, supports the allowance of
benefits sought on appeal.
Hayre, 188 F.3d at 1335. On remand, a panel of this Court ordered the parties and invited interested
amicus curiae to submit memoranda as to this Court's jurisdiction, any breach of the 1972 duty to
assist, and any requirement that in 1972 a claim had to have been well grounded in order to qualify
for the duty to assist. Hayre v. West, U.S. Vet. App. No. 95-984 (Apr. 14, 2000) (per curiam order).
The parties filed memoranda in response to the Court's order, and an amicus curiae brief was filed
on behalf of the National Organization of Veterans' Advocates.
II. ANALYSIS
This Court's appellate jurisdiction derives exclusively from the statutory grant of authority
provided by Congress and may not be extended beyond that permitted by law. See Christianson
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v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988); see also Prenzler v. Derwinski, 928 F.2d
392, 393-94 (Fed. Cir. 1991); Skinner v. Derwinski, 1 Vet.App. 2, 3 (1990). "Moreover, it is
well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over
each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the
court or tribunal, sua sponte or by any party, at any stage in the proceedings, and, once apparent,
must be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Accordingly, I agree
with the majority that this Court has the responsibility to determine for itself whether it has
jurisdiction to consider a claim, irrespective of the contentions of the parties. See Grantham
v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997), rev'g, 8 Vet.App. 228 (1995). I note that, although
the Federal Circuit does have the authority to review an interpretation by this Court as to its
jurisdictional statutes, see Grantham, 114 F.3d at 1158; In the Matter of the Fee Agreement of Wick,
40 F.3d 367, 370 (Fed. Cir. 1994); Mayer v. Brown, 37 F.3d 618, 619 (Fed. Cir. 1994), there has
been no such jurisdictional determination by the Federal Circuit in this case.
A. Applicable Law
In general, this Court has jurisdiction to review a final BVA decision only where an NOD,
as to the underlying RO decision, has been filed on or after November 18, 1988. See Veterans'
Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C.
§ 7251 note) (VJRA); 38 U.S.C. § 7105; Velez v. West, 11 Vet.App. 148, 157 (1998) ("Court has no
jurisdiction over an issue absent a post-November [17], 1988, NOD, expressing disagreement with
an RO's decision on that issue or with an RO's failure to adjudicate that [issue]"). This Court has
jurisdiction over a new and previously undecided or "down-stream" issue, such as disability rating
or earlier effective date, where the appellant has filed a post-VJRA NOD as to that issue, even
though the appellant had filed a pre-VJRA NOD as to an "up-stream" issue, such as service
connection. Barrera v. Gober, 122 F.3d 1030, 1032 (Fed. Cir. 1997); see Grantham, 114 F.3d at
1158-59.
An NOD is defined by regulation as "[a] written communication from a claimant or his or
her representative expressing dissatisfaction or disagreement with an adjudicative determination by
the [RO] and a desire to contest the result"; it "must be in terms which can be reasonably construed
as [expressing] disagreement with that determination." 38 C.F.R. § 20.201 (2000); see Gallegos
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v. Gober, 14 Vet.App. 50, 57-58 (2000); see also Fenderson v. West, 12 Vet.App. 119, 128 (1999);
Buckley v. West, 12 Vet.App. 76, 82 (1998); Beyrle v. Brown, 9 Vet.App. 24, 27 (1996). Generally,
an NOD "shall be filed within one year from the date of mailing of notice of the result of initial
review or determination" with which it is disagreeing. 38 U.S.C. § 7105(b)(1). "Whether a
document is an NOD is a question of law for the Court to determine de novo under 38 U.S.C.
§ 7261(a)." Beyrle, 9 Vet.App. at 27; see also Fenderson and Buckley, both supra.
B. Application of Present-Claim-Stream NOD to Pre-VJRA Claim
Contrary to the analysis provided by the majority, see ante at __, slip op. at 3-5, this Court
need not have jurisdiction over the service-connection issue; it is enough to have jurisdiction over
the earlier-effective-date issue in order to consider the ramifications of the RO's conduct in reaching
a decision in 1972. Cf. Barrera, 122 F.3d at 1032 (pre-VJRA NOD as to service-connection issue
does not deprive Court of jurisdiction over earlier-effective-date issue with post-VJRA NOD);
Grantham, 114 F.3d at 1158-59 (same). Moreover, according to this Court's caselaw, which is not
discussed by the majority, the Court can reach an error in a pre-VJRA, old claim stream (original
claim) based on its jurisdiction over a matter in a post-VJRA, new claim stream (claim to reopen the
original claim). See Woods v. Gober, 14 Vet.App. 214 (2000); Hyson v. Brown, 5 Vet.App. 262(1993); see also Tablazon v. Brown, 8 Vet.App. 359 (1995).
In the Woods case, after the RO had denied the appellant's PTSD claim in 1985, the appellant
filed in 1989 a claim to reopen that previously and finally disallowed PTSD claim. Woods,
14 Vet.App. at 216. The RO awarded the appellant service connection for PTSD and assigned a 50%
rating, effective in 1989 on the date of his claim to reopen. The appellant filed as to that RO
decision an NOD as to the 1989 rating claim, and in 1997 (in the same new claim stream), the RO
assigned a 70% PTSD rating and a rating of total disability based on individual unemployability,
both effective in 1989. The appellant filed an NOD as to an earlier effective date, arguing that the
RO in 1985 should have tried to locate him to give him notice of the 1985 RO decision. Woods,
14 Vet.App. at 217. The Court held that the 1985 RO decision did not become final because the RO
did not send notice to the appellant at an additional address, and the Court remanded that case for
adjudication of an earlier effective date. Woods, 14 Vet.App. at 221.
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The appellant in Tablazon filed a claim to reopen two arthritis claims that had been
previously and finally denied by a 1975 RO decision and later appealed a BVA decision that
determined that the evidence presented was not new and material. Tablazon, 8 Vet.App. at 360.
After noting that "where VA has failed to procedurally comply with statutorily mandated
requirements, a claim does not become final for purposes of appeal," the Court concluded that the
appellant had filed a valid NOD as to the 1975 RO denial and that the RO had not issued an SOC.
Tablazon, 8 Vet.App. at 361. Based on that conclusion, the Court held that "the BVA erroneously
treated that rating decision as final and required new and material evidence to reopen" and that the
appellant need not have presented new and material evidence. Id. Finally, the Court dismissed the
appeal on the ground that "[g]iven the pendency of the prior appeal to the Board, we conclude that
there is no final Board decision before us for review." Id.
In sum, in the Woods opinion, the Court held that it had jurisdiction--presumably based on
the new NOD. Woods, 14 Vet.App. at 216; see also Hyson, 5 Vet.App. at 264-65. In Tablazon,
although the Court ultimately dismissed the appeal, the Court's rationale for its intermediate decision
(that the claim was not one to reopen but was an original claim) was that the RO had erred by failing
to issue an SOC following a 1976 NOD. Tablazon, 8 Vet.App. at 361; see also Hanson v. Brown,
9 Vet.App. 29, 31-32 (1996) ("[t]he issue, boiled down to its essentials, is whether there remained
a viable claim for PTSD in 1984 upon which an effective date could be anchored"; holding that
"evidence of record provides, at the least, a plausible basis for the Board's finding that the
appellant withdrew his February 1984 PTSD claim; therefore, the Board's decision denying the
appellant entitlement to an effective date retroactive to 1984 is not clearly erroneous").
In addition, this Court has in other cases considered an old claim stream error in order to
make that old claim stream part of the new claim stream. See, e.g., Hauck v. Brown, 6 Vet.App. 518(1994); Kuo v. Derwinski, 2 Vet.App. 662 (1992), dismissed, 9 Vet.App. 273 (1993) (in earlier-
effective-date case, holding Court lacked jurisdiction because original service-connection NOD was
pre-VJRA), overruled by Grantham, 114 F.3d at 1158-59 (holding that Court can consider down-
stream issues under new issue-specific post-VJRA NOD). Moreover, in claims to reopen, the Court
has considered the finality of old-claim-stream decisions but concluded that there were no errors or
no errors grave enough to affect the finality of the old decision. See, e.g., Tetro v. Gober,
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14 Vet.App. 100 (2000); Valasco v. West, 12 Vet.App. 172 (1999). Perhaps most importantly, there
does not appear to be any opinion in which the Court has refused to consider old-claim-stream errors
when there was a new-claim-stream, jurisdiction-conferring NOD.
C. Application to Hayre Claim
In Ledford v. West, the Federal Circuit stated that all applicable "legal reasoning supporting
. . . a challenge [to a denial of a claim] need not appear in the NOD" filed as to that denied claim
because "[t]he Board is clearly empowered to determine which law applies to the facts presented."
Ledford, 136 F.3d 776, 780-81 (Fed. Cir. 1998); see also Maggitt v. West, 202 F.3d 1370, 1375 (Fed.
Cir. 2000). Based on that premise, the Federal Circuit in Collaro v. West held that where an
appellant has filed an NOD sufficient to place a particular claim into appellate status, this Court has
jurisdiction over all issues that are "appropriately identified [from] the radix of his [NOD]." Collaro,
136 F.3d 1304, 1310 (Fed. Cir. 1998). "Ledford and Collaro support the proposition that this Court
has jurisdiction over claims that an appellant has reasonably raised to the RO and that the BVA has
failed properly to adjudicate, and that the Court may entertain any arguments made in support of
such claims when presented with a 'vague' or general NOD or, at least, one that does not limit the
Court's consideration of the arguments made." Buckley, 12 Vet.App. at 82-83 (citing, inter alia,
Isenbart v. Brown, 7 Vet.App. 537, 540-41 (1995) (Court considered totality of communications
received before and after NOD in concluding that its expressed disagreement "encompassed the RO's
failure to adjudicate the [particular] claim" and remanded for Board review of that unadjudicated
claim)).
If after an NOD is filed the disagreement is not resolved, the RO must issue an SOC. See
38 U.S.C. § 7105(d)(1). That SOC "is meant to assist the veteran in gaining every benefit that can
be supported in law." Maggitt, 202 F.3d at 1375. The appellant is then required to file a Substantive
Appeal that "set[s] out specific allegations of error of fact or law." 38 U.S.C. § 7105(d)(3). "To the
extent feasible, the argument should be related to specific items in the [SOC,] and . . . [the] Board
will construe such arguments in a liberal manner for purposes of determining whether they raise
issues on appeal . . . ." 38 C.F.R. § 20.202 (2000).
There appears to be no dispute here that there are two valid NODs: (1) A September 1973
NOD as to the November 1972 RO denial of the claim for a nervous condition; and (2) a June 1993
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NOD as to the April 1993 denial of the CUE claim. It is also clear that the September 1973 NOD,
having been filed before November 18, 1988, cannot confer jurisdiction on this Court. See VJRA
§ 402; 38 U.S.C. § 7105; Velez, supra. However, as discussed above, contrary to the analysis
provided by the majority, this Court need not have jurisdiction over the 1972 RO decision; indeed,
it cannot.
What is critical is whether the appellant submitted a jurisdiction-conferring NOD as to the
Hayre claim and whether that claim was later reasonably raised to the Board. See Buckley,
12 Vet.App. at 82-83. In this regard, I note that a Hayre claim and a CUE claim are antithetical
because a CUE claim presupposes that the target RO decision is final, see Norris (Robert) v. West,
12 Vet.App. 413, 422 (1999); Crippen v. Brown, 9 Vet.App. 412, 417-18 (1996), whereas a Hayre
claim attempts to defeat the finality of that RO decision, see Hayre, 188 F.3d at 1334. For that
reason, I agree with the majority that an NOD as to a CUE claim does not in and of itself suffice as
an NOD as to a Hayre claim.
That said, it is axiomatic that, if the appellant filed a post-November 17, 1988, NOD as to
the Hayre claim that meets the requirements of Ledford and Collaro, there can be no question that
such an NOD would constitute a jurisdiction-conferring NOD as to that claim. The appellant,
indeed, filed such a jurisdiction-conferring NOD. In making this conclusion, I will assume that the
June 1993 NOD, despite its reference to the failure to provide the duty to assist, does not serve as
a valid Hayre NOD. Nevertheless, it is clear that three months earlier in March 1993, the appellant
filed a timely NOD (R. at 184) as to the RO's December 1992 assignment of an effective date of
September 2, 1992. R. at 181-82. That NOD expressed disagreement with the December 1992 RO
effective-date assignment, and that disagreement was based on the RO's failure to fulfill the duty to
assist in 1972. R. at 184. The June 1993 SOC that followed the March 1993 NOD failed to address
the Hayre claim. R. at 198-202. Thereafter, in his June 1993 Substantive Appeal, the appellant
raised to the Board the unadjudicated Hayre claim by arguing that the duty-to-assist breach was a
"due process" error. The Board in its June 1995 decision, as did the RO in its SOC, failed to address
the Hayre claim; the Board thereby limited its decision to the CUE claim. R. at 204. Accordingly,
because the appellant both filed a jurisdiction-conferring NOD as to the Hayre claim and later raised
that unadjudicated claim to both the Board and the Court, the Court clearly has jurisdiction to
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consider such claim, see Collaro, supra, and should proceed to determine the appropriate disposition
of it.
D. Remand of Hayre Claim
The Secretary appears to have conceded (Sept. 2000 Memorandum (Memo.) at 9), and the
appellant (June 2000 Memo. at 10) and the amicus (Brief at 19-21) agree, that in 1972 a well-
grounded claim was not a prerequisite for VA compliance with a duty to assist. As to any duty to
assist enforceable in 1972, the Secretary appears to concede that there was a duty to assist that was
binding on the RO in 1972; that concession is based on the Federal Circuit's analysis of the VA
Adjudication Procedure Manual, which apparently was in effect in 1972. Sept. 2000 Memo. at 7-8.
The Secretary also concedes, based on his application to the facts in this case of the law as set forth
in the Federal Circuit's Hayre opinion, that that duty was breached in this case. Sept. 2000 Memo.
at 11-13. The Secretary argues that the Court should remand to the Board for fulfillment of the duty
to assist and for readjudication of the earlier-effective-date matter. Sept. 2000 Memo. at 15.
Accordingly, I would remand this case to the Board to determine in the first instance the effect of
such duty-to-assist breach on the appellant's entitlement to an earlier effective date. See Winters
v. Gober, 219 F.3d 1375, 1380 (Fed. Cir. 2000); Hensley v. West, 212 F.3d 1255, 1263-64 (Fed. Cir.
2000).
III. CONCLUSION
For the foregoing reasons, I would find that the appellant has filed a jurisdiction-conferring
NOD as to the Hayre earlier-effective-date claim, hold that the Court has jurisdiction to consider that
Hayre claim, and remand the case to the Board for adjudication of the earlier-effective-date claim
consistent with this analysis and the Federal Circuit's August 1999 opinion. Accordingly, I
respectfully dissent from the majority's dismissal of the appeal.
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