Hall: Board Jurisdiction and Submission of an Incorrect Form

Hall v. McDonough, Case Number 19-8717, was decided October 18, 2021 and involves whether the Board has jurisdiction to decide a claim when an improper form had been submitted.

This involves a legacy appeal that was decided the day the VAIMA went into effect.  The veteran submitted a VAIMA NOD as opposed to an older NOD.  Ultimately, the Board noted the form and stated the claim was on its docket.  Later, the Board dismissed the claim when it found he used a new NOD as opposed to the older version of a NOD.  The Board determined it did not have jurisdiction.

The veteran argued: “the requirement to use VA Form 21-0958 is not a jurisdictional hook and the Board waived that requirement when it accepted and processed his appeal. He also asks the Court to ensure that an SOC is issued regarding his foot, ankle, and hip conditions.”  Id. at *2.

The Court began by noting

The Supreme Court has repeatedly emphasized the distinction between rules affecting jurisdiction and mandatory "claims-processing" provisions that govern the orderly processing of cases but otherwise do not create or withdraw jurisdiction. "Clarity would be facilitated if courts and litigants used the label 'jurisdictional' not for claims-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority."

Id. at *3.

It then explained:

As relevant here, 38 U.S.C. § 511(a) provides a cause of action and establishes that "[t]he Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans." It is absolutely clear that Congress intended to grant to the Secretary "the power to declare the law" by adjudicating cases brought under section 511(a). Steel, 523 U.S. at 94. There's no dispute that Mr. Hall brings a claim for veterans benefits under section 511(a).

The Board's jurisdiction is derivative of the Secretary's. As with section 511(a), 38 U.S.C. § 7104(a), which sets out the Board's jurisdiction, uses the same mandatory shall in directing that "[a]ll questions in a matter which under section 511(a) of this title is subject to a decision by the Secretary shall be subject to one review on appeal to the Secretary." Taken together, sections 511 and 7104 offer no indication that Congress sought to eliminate VA's authority to adjudicate veterans benefits disputes—i.e., its subject matter jurisdiction—whenever a claimant's pleading fails to conform to form or timing requirements.

Id. at *4.

The Court then noted that Percy v. Shinseki had noted a substantive appeal is not jurisdictional but a claims-processing mechanism and the Board could summarily dismiss an appeal based on jurisdiction, but had to discuss why dismissal was appropriate.  Id. at *5.  The Court in this case rejected the VA’s argument that regulations 20.202 and 20.203 ruled by noting regulations are not jurisdictional in nature and only Congress may confrer or withdraw jurisdiction.  Id. at *5. 

The Court then determined:

In sum, the Board had jurisdiction here because Mr. Hall appeals the RO's denial of his claim for benefits and because nothing in section 7105 suggests that Congress intended to limit the Board's jurisdiction based on the specific form that the appellant used to file his NOD. Thus, the Board erred in dismissing Mr. Hall's case on jurisdictional grounds. R. at 6 ("[T]he claims . . . must be dismissed because the Board does not have jurisdiction over the issues." (emphasis added)). This error effectively prevented Mr. Hall from participating in the adjudicative process as the Board neither heard his appeal nor explained why any formal defect in the appeal merited dismissal under a claims-processing rationale. See Simmons v. Wilkie, 30 Vet.App. 267, 279 (2018), aff'd, 964 F.3d 1381 (Fed. Cir. 2020). The Court thus remands for the Board to either hear 6 Mr. Hall's appeal or to provide a rationale for declining to do so. If it dismisses his claim, the Board should identify the governing law, any formal defects in the appeal, whether waiver or forfeiture is a relevant consideration, and any other relevant factors.

Id. at *5-6.

This is an interesting case in that it reaffirms that a lack of jurisdiction is not an adequate reason for the Board to dismiss an appeal which was on the incorrect NOD form.  I would have expected the Court to note the non adversarial nature of the VA process, but instead this Court focused strictly on the technical aspects of the jurisdictional argument.  What is also interesting is to see how this could more broadly help other veterans.  If a wrong NOD is not jurisdictional, than a late one also isn’t.  The next question is whether a NOD on a form is even required.  The Court seems to have opened a door and it will be interesting to how quickly it is shut or far it is opened.

Decision by Judge Toth and joined by Judges Laurer and Jaquith.

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