The case of Robert V. Ortiz v. Eric K. Shinseki, Opinion Number 06-0932, decided
The Board of Veteran Appeals denied a request for an earlier effective date for service connected bipolar disorder. The Court originally affirmed the BVA decision but that decision was withdrawn and replaced with this decision entered after being heard by the full panel of judges.
The Veteran filed and was denied by the Regional Office in 1971 and did not appeal. He re-filed in 1979 and was denied by the Regional Office. He later was granted service connection in 1994 after filing again.
Regarding the 1979 denial, a Substantive Appeal (VA Form 1-9) was never received by the VA. However, at one point the VA sent a letter to the Veteran saying they had not received the form along with a copy of the form and requested that he send it if he wanted to continue his appeal. The Veteran responded with a letter saying he had already sent the form and requesting an update as to the status of the case.
Importantly, the law requires that after the VA issues a Statement of the Case, the veteran “should set out specific allegations of error of fact or law … related to specific items in the Statement of the Case”. The Court determined this requirement “must be interpreted as placing a burden on claimants to expand upon their initial disagreement with the RO decision by setting forth—however inartfully—a particular theory of error for the Board to decide.”
The Court essentially found that while the VA has to liberally construe documents, the basic procedural requirements must be met and they were not met in this case because neither VA Form 1-9 nor a letter alleging a specific error of fact or law was received by the VA. Regarding the Veteran’s letter, the Court stated, “Nothing … references any part of the S[tatement] O[f the] C[ase] or why the denial of the appellant’s claim might be erroneous” and “While the appellant identified his claim, he asserted no reason or theory why the SOC was incorrect as the 1979 Form 1-9 requires.”
The opinion was filed with powerful dissents which argued the majority “inexplicably focuses only on Mr. Ortiz’s May 1980 letter to the Secretary. Such a narrow focus is not the law. Whether or not a Substantive Appeal or the equivalent has been filed is determined by considering the totality of the circumstances…. The result reached by the majority comes simply and plainly from their implicit holding that ‘should’ means ‘must’ in the controlling statute and regulation.” Thus, the dissenting judges found “if the totality of the circumstances and liberal reading permit an understanding of the issue on appeal, the statute is satisfied.”
Perhaps the lesson to be taken is that while a Notice of Disagreement from a Regional Office decision can be vague, after the Statement of the Case is filed by the VA, a more specific Form 1-9 (substantive appeal) must be timely filed and must say enough to focus on the objections to the Statement of the Case.
