Encarnacion v. McDonough, Case Number 21-1411, decided January 30, 2023 involved whether a RO decision implementing a Board decision could be appealed. The VA asked for reconsideration by the Court, which was granted and a new decision (substantively similar to the first) was rendered on May 18, 2023.
Shortly after the veteran died, the surviving spouse filed for DIC and accrued benefits. Ultimately the Board granted a 10% rating with a 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.
On the motion to reconsider, the Secretary argued the Board had already considered the 2018 NOD as a request to reconsider and the Court had no jurisdiction over the 2018 decision.
“The Court grant[ed] reconsideration and agree[d], at least in one aspect, with the Secretary. We thus rescind the vacatur of the May 2018 Board decision. The Court declines, however, to alter its analysis regarding vacatur of the June 2020 Board decision or the Agency's duty to consider whether Ms. Encarnacion's July 2018 NOD constitutes a motion to reconsider the May 2018 Board decision. Once an issue has been properly presented to the Court for resolution, the Board may not wrest the issue from our consideration.” Id. at *2.
While the case was pending before the Court, the Board tried to wrest jurisdiction from the Court by issuing a decision considering the July 2018 NOD as a request for reconsideration of the May 2018 Board decision. The Secretary argued there is no need for the Court to order the Board to do something it has already done. The Court rejected this argument, saying “But this misunderstands the situation: the Court's task on appeal was to determine whether the Board committed error in the June 2020 decision, and we determined that it did by failing to address the Ratliff issue. That was the appropriate time for the Board to consider the matter—not in October 2022, more than a year and a half after Ms. Encarnacion filed her Notice of Appeal here and more than two weeks after our order notified the parties that we were considering whether the July 2018 NOD should be construed as a motion for Board Chairman reconsideration.” Id. at *7.
The Court explained and admonished the Secretary that,
“The Board's unilateral action ignored our admonition in Cerullo v. Derwinski, 1 Vet.App. 195, 197 (1991), that "[o]nce an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same issues." Not only is the concept of "concurrent or dual plenary jurisdiction . . . impermissible," we explained, but "allowance of dual jurisdiction raises the possibility that a court of appeals will expend extensive judicial time on a case only to have agency reconsideration nullify its efforts." Id. In this case, we ordered the Board on October 21 not to take action on any issue pending before the Court unless it was first granted leave to do so per the procedures spelled out in Cerullo. The Secretary declined to seek such leave on the Board's behalf. Given Cerullo and this Court's order, it should have been clear that the Board's belated attempt to dispose of the Ratliff issue while the Court was actively considering the matter was of no legal consequence. Regardless of what the Board purported, it could not construe the July 2018 NOD as a request for reconsideration of the May 2018 Board decision until the Court addressed the issue, over which we had taken jurisdiction. The Court having determined that Ratliff applied in these circumstances and that the June 2020 decision must be vacated, the Board is now permitted to construe the NOD as a motion for Board Chairman reconsideration.
This disposition clarifies not only juridical matters but practical ones. Action taken by the Secretary on an issue that is pending before this Court risks confusion as to governing procedures and deadlines. For example, the timing of a decision by the Chairman as to whether to grant or deny reconsideration directly impacts the timeframe within which a VA claimant can appeal a Board decision to this Court. In Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991), we established that, unless a protective Notice of Appeal has been filed in this Court, VA must "advise the claimant of the new 120-day judicial appeal period that commences, as to the underlying substantive [Board] decision, on the date of the mailing of the [Board's] notice of denial of the motion for reconsideration." Claimants, especially those who lack the assistance of capable counsel, could easily lose track of what they must do to pursue their cases properly when a claim or issue is being adjudicated simultaneously by two different tribunals.”
Id. at *8.
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. He particularly called out the Secretary, saying “VA has flouted the authority of the Board and this Court, and our dissenting colleague says we are powerless to address the Agency's defiance. In my view, a contrary conclusion is dictated by our status and function as a court created to provide independent judicial review of decisions in a system founded on fair process.” Id. at *9-10.
Judge Falvey wrote a dissent in part. He agreed that the a RO decision simply implementing a Board decision could not be appealed, but disagreed with everything else. He essentially argued that the remand simply added steps and time to the surviving spouse’s appeal.
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. The Court’s willingness to directly say the Board should have considered the second NOD as a motion for reconsideration and then going a step further and saying the VA cannot unilaterally wrest control of the appeal from the Board by later addressing the motion is also very helpful and demonstrates that at least some of the judges are tired of the VA’s unceasing games.
Decision by Judge Toth. Concurrence by J. Jaquith and dissent in part by J. Falvey.
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