James I. Evans v. Eric K. Shinseki, Opinion Number 08-2133, decided August 4, 2011 involves the court’s reconsideration of a previous January 2011 decision and specifically concerns 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 succinctly stated the issue as “whether the Board erred in determining that a claimant limits his appeal to certain specified issues when he files a VA Form 9 in which he checks the box indicating his desire to appeal ‘ALL OF THE ISSUES LISTED ON THE [SOC]’, but also specifies on the Form 9 arguments as to some, but not all, issues listed in the SOC.”
The Court initially 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. In its reconsidered opinion, the Court narrowed its decision and found “the Board’s unexplained statement that the appellant had limited his appeal by the manner in which he completed his VA Form 9 constitutes error. It fails to adequately provide reasons or bases for the dismissal of the remaining issues.” Id. at *10. The Court then went on to say that “the veteran-friendly process requires VA at the RO or Board to seek clarification and communicate with the appellant as to any perceived concern about how the appellant had filled out the Form 9.” Id. at *11.
A concurring opinion by Judge Lance preferred a bright line test that the VA should have considered all claims because of a fear that the VA will simply dismiss the claim again and it result in yet another appeal to the Court. Judge Lance’s opinion seems to betray a concern with the sometime seemingly endless process which veterans have to go through.
Decided by Judges Moorman, Lance and Schoelen.
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