Cardoza: NOD Rejection is Appealable

Cardoza v. McDonough, Case Number 20-6380, decided July 10, 2024 concerns whether a Board letter refusing to accept an NOD was a final order. 

A June 2019 RO decision granted service connection for PTSD and granted a 50% rating and June 2018 effective date.

The veteran filed an HLR as to the rating and a NOD as to the effective date.  A month later, the VA informed the veteran the Board received the NOD, but because of the HLR request the Board could not review the case because “You can only choose one review option for each issue.”

Subsequently the HLR was denied and the veteran filed a notice of appeal from the Board letter.  The Secretary moved to dismiss saying there was no final Board decision.

The veteran argued the Board letter “is an adverse final decision of the Board over which the Court can exercise jurisdiction under 38 U.S.C. § 7266.”

The Court held “that it has jurisdiction to consider this appeal and that the May 19, 2020, letter is a final decision of the Board because in the letter the Board denied the appellant entitlement to the relief sought. See 38 U.S.C. § 7104(d). By refusing to docket the appellant's April 2020 VA Form 10182 in which the appellant sought an earlier effective date for service connection for a psychiatric condition, the Board denied an earlier effective date; this action has the same procedural impact as a dismissal of the appeal, rendering the effective date assigned in the June 2019 rating decision final.”  Id. at *4.  It Court noted: “The May 2020 letter satisfies the requirements of section 7104(d) because the letter (1) is in writing; (2) contains the Board's finding and conclusion, i.e., that the Board could not process the appellant's appeal; (3) contains a statement of reasons or bases explaining that the appellant can choose only one review option per issue; and (4) denied an earlier effective date by refusing to docket his appeal. What's more, Mr. Arnold—the Vice Chairman of the Board and a Board member himself—inspected appellant's VA Form 10182 within the procedural context—meaning that Mr. Arnold assessed the facts and then concluded that the Board could not review appellant's case. So Mr. Arnold provided a legal conclusion. He adjudicated whether the Board had jurisdiction and, through his dismissal, decided a legal question.”  Id. at *3-4.

The order took aim at the dissent by Judge Falvey noting it is incorrect and that its offer of a possible writ of mandamus is no option at all.  It appears the dissent focuses too narrowly on whether a benefit is granted or denied and comes to the conclusion that rejecting a NOD is not a denial.  Ultimately, the dissent seems to object to the idea of “splitting” a claim in terms of separating the issues of effective date and rating.

Decision by Judge Greenberg and joined by Judge Laurer.  Dissent by Judge Falvey.

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