Terry v. McDonough, Case Number 20-7251, decided October 19, 2023 involves whether a veteran can file more than one administrative review request in response to and within one year of an AOJ decision provided the requests are not pending concurrently.
The Court held that “subsection 5104C(a) plainly provides that a claimant may file more than one administrative review request within 1 year of an initial AOJ decision on a claim, provided that such an administrative review request is not pending concurrently with another administrative review request.” Id. at *2. As a result, the Board erred when it construed the NOD as an appeal from a decision from a supplemental claim as opposed to the underlying AOJ decision.
Factually, the veteran had a long-standing claim before the VA and opted into the AMA and requested a HLR decision. On April 16, 2019, a RO decision denied service connection for the issues. In June 2019, the veteran filed a supplemental claim and attached documents to the form. In September 2019, in a supplemental claim decision, the RO notified the veteran his claim remained denied because no new and relevant evidence had been submitted. On April, 14 2019 the veteran filed a NMOD seeking review of the issues and identifying the April 16, 2019 decision as the one he sought review of. In a June 2020 decision, the Board found the claim was denied because their was no new and relevant evidence, the April 16, 2019 RO decision had become final because it was not appealed.
The VA argued the law only allowed one administrative review request in response to a decision and that the subsequent review (in this case a NOD) could only be from the most recent agency decision.
The Court concluded: “Ultimately, when we read subsection 5104C(a) as a whole, we see that Congress provided that a claimant is able to select a second administrative review option with respect to a decision on the claim, so long as the 1-year period from that decision has not run and the second administrative review option does not run concurrently with the first administrative review option.” Id. at *15.
The Court also considered the VA’s fear of simultaneous actions with respect to the same underlying request for benefits, “[i]n other words, the Secretary appears to be concerned that Mr. Terry could conceivably file administrative reviews of both the April 2019 HLR decision on the merits and the September 2019 decision that new and relevant evidence had not been submitted in connection with the supplemental claim.” Id. at *14. The Court noted that “subsection 5104C(a)(2)(A), … prevents claimants from taking simultaneous actions "with respect to the same claim or same issue within the claim." A "claim" is a request for "a determination of entitlement or evidencing a belief in entitlement, to a specific benefit." 38 C.F.R. § 3.1(p).” Id.
The VA also argued the Court’s interpretation could lead to inequity among veterans who receive a quick HLR decision and those for whom an HLR decision takes more than one year. Incredibly, the Secretary argued to the Court that “he would be encouraged to delay rendering decisions in response to actions take under subsection (a) until" the 1-year period following an AOJ decision had expired.” Id. at *14-15. The Court noted this incredible self-serving argument by the Secretary and stated “The Secretary's suggestion that VA would intentionally delay adjudicating thousands of requests for administrative review under the AMA simply to avoid the uncommon instance in which an administrative review is adjudicated within a year of an initial AOJ decision is stunning.…. It is difficult to comprehend that under a uniquely pro-claimant system, or indeed any system of adjudication, an agency would arbitrarily delay adjudication in order to avoid an outcome that Congress has expressly provided for by statute.” Id. at *15.
This is an important decision that helps round out the contours of the AMA. It also demonstrates that the VA actually wrote in a brief it would likely delay decisions unnecessarily in order to avoid the application of this rule. This demonstrates the depravity of the VA, to do it silently is one thing—to write that you are going to do it is incredible. I hope the Veterans Court remembers this is how the Secretary behaves.
Decision by Judge Pietsch and joined by Judges Greenberg and Allen.
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