Evans: What Issues are Appealed on a Form 9?
James I. Evans v. Eric K. Shinseki, Opinion Number 08-2133, decided January 28, 2011 involves confusion over what issues were appealed when an unrepresented veteran completed a VA Form 9.
The veteran sent in a notice of a disagreement (NOD) from a decision that had 6 issues and the VA prepared a Statement of the Case (SOC). The veteran than submitted a form 9 in which he checked the box saying he wished to appeal all of the issues in the SOC. However, he also specified 3 of the issues listed in the SOC. The VA took the position that he abandoned the other three issues. And, in fact, those were the only issues discussed in a hearing. The BVA decision dismissed the three unspecified claims.
On appeal, the veteran argued the BVA should have addressed the unspecified claims because he had checked a box saying he wanted to appeal all the issues.
The Court agreed with the veteran. It found the VA had a duty to liberally read pro se filing and the form is ambiguous because it does not explain that if a veteran checks he wants to appeal all issues but then specifies some in the second box, that the second box controls.
A concurring opinion by Judge Schoelen concurred but disagreed with the finding the VA Form 9 was potentially ambiguous. Instead, it would have looked at the adequacy of the BVA’s decision that the unspecified issues were waived.
Decided by Judges Moorman, Lance and Schoelen.
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