Williams: How Long Do You Have to Change Board Appeal Lanes?

Williams v. McDonough, Case Number 21-7363, decided June 21, 2024 involves the question of what happens when the Board decides an appeal prior to the expiration of time to change the appeal lane.

The question was whether the Board erred by deciding his case before his deadline to modify his choice of Board appeal lane under 38 C.F.R. § 20.202(c)(2). 

The veteran filed a NOD and selected the direct review docket.  The VA notified him it had received the NOD and then “[t]racking the text of § 20.202, this notice told Mr. Williams that he could not submit more evidence, but if wished to switch dockets, he could file a request within 60 days of the date that the Board received his NOD, "or within one year of the VA decision being appealed, whichever date is later," and that he could request an extension of time to submit such a "docket switch request."”  Id. at *2.

Importantly, “Despite what the letter said, VA didn't give Mr. Williams the promised time to change his NOD and switch dockets. Instead, on July 16, 2021, the Board issued the decision on appeal denying a rating higher than 10%. This was less than 60 days from when the Board received his NOD and far short of a year since the December 2020 AOJ decision.”  Id. at *2-3.

The veteran argued “that the time to switch lanes in § 20.202(c)(2) is illusory if the Board can issue a decision within 60 days of NOD submission. To make the case that the Board's error prejudiced him, Mr. Williams tells us that he would have modified his NOD (electing the submission of additional evidence lane) and submitted evidence— some of which is already in the record but post-dates the AOJ decision.”  Id. at *3.

The Court concluded: “we agree with Mr. Williams that the Board cannot issue a decision until the time to modify an NOD under § 20.202(c)(2) has run.”  Id. at *6.

The Court then considered the issue of harmless error and specifically the VA’s point that the veteran could always just submit additional evidence in a supplemental claim and explained: “In simple terms, with a supplemental claim, you can't just submit any evidence to have VA consider the merits of your claim; the evidence has to be new and relevant….  This means that a claimant has an easier time getting VA merits review of the claim based on evidence submitted through one of the Board lanes than through the supplemental claim option. This also means that we must reject the Secretary's argument that the option of a supplemental claim means the Board's failure to give Mr. Williams a chance to submit evidence is harmless.”  Id. at *8.

This is an interesting case.  Frankly, the court is right in focusing on the fact that supplemental claim requires new and relevant evidence and that the VA should wait until the 60 days or one year after a NOD filing is up before a decision, but I can’t wonder about the negative impacts of these and how they might just lead to further delays.

Decision by Judge Falvey and joined by Judge Jaquith and Senior Judge Greene.

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Frantzis: Board Hearing Before the Person to Decide the Case

Frantzis v. McDonough, Case Number 2022-2210, was decided on June 4, 2024 and concerns whether under the AMA a veteran is entitled to a Board hearing before the Board member who will ultimately decide their appeal.

This was an appeal from a panel decision by the Veterans Court which had answered in the negative that noted there was a requirement in the Legacy Appeals system for the Board member who conducted the hearing to decide the case whereas there is nosuch requirement in the AMA.  Judge Jaquith wrote a dissent saying fair process requires the Board member who held a hearing to decide the case because it allows them to properly access the credibility of the witnesses.

The Federal Circuit affirmed the decision agreeing with the Veterans Court stating: “The statutory scheme and its history are clear—the same judge is not required to both conduct the hearing and author the final determination under the AMA.”  Id. at *6.

As for the due process argument, the Court noted “The fair process doctrine is a recognition that due process applies in the claimant process.  For example, we explained the fair process doctrine requires the Board to “provide a claimant with reasonable notice of [new] evidence . . . and a reasonable opportunity for the claimant to respond to it.”  To the extent Mr. Frantzis argues the fair process doctrine creates a procedural right, the argument was not presented below and is thus forfeited.”  Id. at *6.

Thus, it appears the AMA does not require a hearing before the Board member who will make a decision.  However, the Federal Circuit seemed to at least leave a crack in the door to the fair process doctrine argument, but found the argument was forfeited because it was not presented to the Veterans Court.  I imagine some attorney will look for the right Board decision to make these arguments and fully brief the issue and see how the Veteran Court and Federal Circuit responds.

Decision by Chief Judge Moore and joined in by Judges Clevenger and Chen.

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Greenidge: EAJA Fees and Prevailing Party Status

Greenidge v. McDonough, Opinion Number 20-7820(E), was decided May 31, 2024 by the Veteran Court and concerns attorney fees.

The case concerns when attorney fees can be granted on an appeal.  The Court had held it lacked jurisdiction to award attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA) after it had set aside a Board decision for lack of jurisdiction.  That decision was appealed to the Federal Circuit which led to a remand for the Veterans Court to reconsider in light of Halpern v. Principi II, which had held the authority to award EAJA fees was tied to the exercise of appellate jurisdiction and not contingent upon whether the Board properly exercised its own jurisdiction in the underlying decision.

On reconsideration, the Veterans Court concluded its prior decision was error and the Corut possessed jurisdiction to entertain the challenge to the Board’s exercise of its jurisdiction and thus had authority to consider the EAJA application.  However, the Court found the veteran was not a prevailing party and thus denied the application.

Factually, the veteran was granted a 10% PTSD rating in 1993 which was not appealed.  Subsequently, he filed a CUE motion and the RO denied the motion.  Before the veteran could file a NOD, the Board adjudicated the CUE motion on its own volition and denied revision of the underlying decision.  The veteran ultimately filed a NOD, after the Board issued a decision on the matter.  Before the NOD was filed, the veteran also appealed the Board’s decision to the Veterans Court.  The parties agreed the Board lacked jurisdiction to adjudicate the CUE motion because a NOD had not yet been filed and thus the Board did not have jurisdiction.  The veteran then sought EAJA fees and was denied.

Initially, it is helpful the Court reaffirmed Halpern II that “our EAJA jurisdiction isn't defeated by a conclusion that the Board issued an unauthorized, or "ultra vires," decision. Rather, when our review is properly invoked to consider whether the Board stayed within its own jurisdictional bounds, we are exercising the "jurisdiction" over a "civil action" that section 2412(d)(1)(A) says is necessary before we are authorized to award EAJA fees and expenses.”  Id. at *4.  In other words, “Taken together, the Federal Circuit's decisions in Hudson and Halpern II make clear that the "jurisdiction" required by section 2412(d)(1)(A) before an EAJA application can be considered is not confined to the Court's jurisdiction over the merits of a Board decision but encompasses the Court's jurisdiction to assess the propriety of the Board's exercise of jurisdiction.”  Id. at *9.

Then, the Court pivoted to prevailing party status and denied EAJA fees on that basis.  The Court determined: “he most immediate obstacle for the veteran is that there was no remand to the Board in this case; instead, the Court simply vacated the Board decision and dismissed the appeal. Indeed, the whole basis of the veteran's appeal was that the Board reached out and prematurely adjudicated the CUE motion before he had decided to file an NOD and invoke the Board's jurisdiction. Since there was no matter properly before the Board at the time it rendered its decision, there was nothing for the Court to remand….  More importantly, the absence of a remand order here means perforce that there was "no remand order clearly call[ing] for further agency proceedings." Blue, 30 Vet.App. at 67. That is a critical consideration in this case. In the Halpern litigation, the Federal Circuit ultimately concluded that this Court's disposition of the appeal—vacating the Board decision (for lack of original jurisdiction to determine an attorney's eligibility for a contingent fee award) and remanding the case to the Board with instructions to dismiss—did not confer prevailing party status.”  Id. at *10.

Judge Jaquith dissented on the prevailing party issue.  He roots his idea of a prevailing party in the actual definition of “prevail” and the facts at hand.  He explained: “Prevail is precisely what the veteran did in his underlying case, in which he appealed the Board's October 2022 decision prematurely denying his CUE motion—which was not yet before the Board—the Secretary agreed that the Board had erred, and the Court vacated the Board's decision and dismissed the appeal so the veteran's later appeal of the regional office's denial of his CUE motion could move forward.”  Id. at *12.  He argued the requirement of a remand is misplaced and that instead stated in the context of a CUE motion, “vacating an improper decision is a pivotal prevailment because denial of a CUE motion may foreclose any further attempt at revision.”  Id. at *15.

I would expect this case to again go to the Federal Circuit as Judge Jaquith’s explanation of a prevailing party is persuasive.

Opinion by Judge Toth and Greenberg with a dissent by Judge Jaquith.

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Ferko: An Untimely NOD and 38 CFR 3.109(b)

Ferko v. McDonough, Case Number 21-3467, decided May 28, 2024 concerns whether a NOD was timely.

Typically a NOD must be submitted within one year from the date of mailing of notice of the decision.  The veteran missed the date by 2 weeks after he had had emergency open heart surgery.  At the time he requested an extension based on good cause citing his surgery.

The VA determined the NOD was untimely but never addressed the extension request.  It then found it did not have jurisdiction.

The Court determined:

“The one-year deadline in section 7105(b) to file an NOD in the legacy system is not a jurisdictional bar to Board review. It is an important and mandatory claim-processing rule, but it does not deprive the Board of the authority to consider the merits of an appeal simply because the NOD is received late. As a nonjurisdictional claim processing rule, section 7105(b)'s one-year period is amenable to an appropriate exception. Indeed, this is exactly what a current VA regulation allows, as our caselaw has long held that 38 C.F.R. § 3.109(b) applies to NODs. That regulation permits extensions to VA's internal deadlines for good cause. It is under this governing regulatory standard that the Board should have considered and adjudicated Mr. Ferko's extension request. But despite the lengthy passage of time, VA has still not issued a decision evincing a proper understanding of § 3.109(b)'s role in permitting it to accept the veteran's untimely NOD.”

Id. at *2. 

Critically, the Court found 38 CFR Section 3.109(b) applies to NODs and states:

“Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues.”

Thus, the Court sidestepped the issue of equitable tolling and simply relied on Section 3.109.

A concurrence also wrote: “The evidence makes a viable case for reversal: Mr. Ferko submitted treatment notes attesting to his open-heart surgery and convalescence that seem sufficient to excuse a 12-day delay in filing his NOD.  Let's face it, if open-heart surgery is not good cause, it's hard to imagine what is. That said, the Board looked at the case through the lens of equitable tolling. R. at 9. It did not grapple with this question as it is framed by the requirements of the regulation. See 38 C.F.R. § 3.109(b) (requiring the claimant to show good cause "as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was"). Stinson and Tadlock counsel that it would be impermissible factfinding for this Court to conclude that Mr. Ferko met the good cause requirement of § 3.109(b). Therefore, mindful of limiting precedent, this case returns to the Board for it to consider the matter of good cause under § 3.109(b).”  Id. at *11.

Another concurrence wrote that it would have decided the case on the basis of equitable tolling because the veteran specifically disclaimed the statutory argument and instead sought to rely on equitable tolling.

This was a full panel decision with the opinion by Judge Toth and several concurring opinions. 

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