Stiles v. McDonough, Opinion Number 20-3523, was dismissed on May 15, 2024 by the Veterans Court. The veteran sought to appeal a remand, but the appeal was dismissed. The veteran sought reconsideration and oral argument was held, but the appeal was still dismissed.
The Secretary argued the Board did decision was not a final decision and because the veteran had not exhausted his administrative remedies the Court could not hear the appeal. The veteran argued that prior to the Board’s decision, he submitted correspondence to the Board noting the claims for service connection for sleep apnea and vertigo remained pending and the Board was required to refer those to the AOJ for development and adjudication. He then asserted “the Board is required to adjudicate all issues expressly raised, and the Board's refusal to acknowledge his request for referral "at best[] impliedly denied jurisdiction of these claims or at wors[t] impliedly denied the claims themselves.” Id. at *3.
He also argued: “in his motion for reconsideration that the Board's failure to refer the claims contravenes what he characterizes as the Board's regulatory duty under 38 C.F.R. § 20.904(b) to refer unadjudicated claims to the AOJ for initial adjudication.” Id. at *3.
He “concedes that the Board did not have jurisdiction to adjudicate the merits of the vertigo and sleep apnea claims, but he asserts that the Board's failure to follow this mandatory requirement and to address the jurisdictional issue that he directly raised to the Board is an implied adverse determination as to Board jurisdiction to refer the sleep apnea and vertigo claims. MFR at 3-4. He maintains that the Board's refusal to comply with § 20.904 is a legal error over which the Court may assume jurisdiction.” Id. at *3.
The Court dismissed the action saying: “In sum, because the November 2019 Board remand did not grant or deny the claims appealed to the Board, and it did not otherwise purport to address, explicitly or implicitly, the question of whether the appellant had unadjudicated pending claims, the Court concludes that it is not a final decision over which we may exercise jurisdiction.” Id. at *10-11.
For a successful challenge to a remand order by the Board see the Federal Circuit’s decision in Chavez.
Opinion by Chief Judge Bartley and joined in by Judges Pietsch and Meredith.
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