Encarnacion: RO Decisions Implementing A Board Decision Cannot be Appealed

Encarnacion v. McDonough, Case Number 21-1411, decided January 30, 2023 involved whether a RO decision implementing a Board decision could be appealed.

Shortly after the veteran died, the surviving spouse filed for DIC and accrued benefits.  Ultimately the Board granted a 10% rating with an specified effective date for a right knee condition.  The RO then implemented the Board’s decision in another decision.  The surviving spouse filed an NOD as to the AOJ’s implementation with regard to the amount of the rating.  The VA then issued both a SOC and sent a letter rejecting the NOD.  The surviving spouse filed a Form 9 and the SOC was certified to the Board, which issued another decision as to the rating issue.  She appealed that decision to the Court and won a JMR because the Board erred in addressing the merits before determining whether the AOJ properly found it could not accept the NOD.

On remand, the Board determined it lacked jurisdiction because the spouse may not challenge the merits of a Board decision by expressing disagreement with the AOJ’s implementation of it.  The Board determined the law prohibits a NOD with respect to this type of implementation. 

The Court determined: “the pure implementation of a Board adjudication cannot be regarded as a decision "affect[ing] the provision of benefits" under section 511(a) and so cannot be appealed to the Board.”  Id. at *5.  It noted: “Here, the implementation of the Board decision by the AOJ was accompanied by no new findings of fact or law that could affect the award of disability benefits.  The Board had already granted service connection and resolved the proper rating and effective date. Even more importantly, the AOJ couldn't render new findings on factual or legal issues already determined by the Board because that would place the AOJ in the untenable position of reviewing the decision of a superior tribunal on those matters.  In sum, the AOJ's purely ministerial implementation of the Board's judgment was not a "decision" of the Secretary and thus could not be appealed through the filing of an NOD.”  Id. at *5-6.

The surviving spouse tried to argue the VA waived any objection to jurisdictional defect because the VA continued to adjudicate the claim by issuing a SOC and certifying to the Board.  But, the Court found without a decision under Section 511, there is simply nothing to review.  Id. at *6. 

However, the Court did find she was not without recourse.  It found the Board was required to determine whether her written disagreement with the decision (purported NOD) was a motion to reconsider the Board’s decision.  It also noted it was submitted within 120 days, which would abate the finality of the time to appeal to the Court.

This is an odd case with a twisted procedural history that no doubt confused an older, unrepresented surviving spouse.  However, the Courts definition of a decision as one not requiring any further adjudication by the AOJ is a helpful clarification.  Ultimately I believe it is of limited value as it concerns legacy cases. 

Judge Jaquith wrote a concurrence in which he focused on the tortured procedural history of this case and in particular how the VA seems to have not handled the substitution properly and without proper notice.  It is a well-reasoned discussion that sympathetically focuses on the veteran or surviving spouse.

To know more about whether Thomas Andrews can help you, please visit my website.