Hearing Officer's Duties, Evans v. Shinseki, No. 08-2133, Decided January 28, 2011

Excerpt from Decision below;
"The Court further notes that the hearing officer did not comply with his duty to fully explain to the appellant the issues in terms of the scope of the claim for benefits. See Bryant v. Shinseki, 23 Vet.App. 488, 492-93 (2010); 38 C.F.R. § 3.103(c)(2). A Board hearing officer's statement that only certain issues are for discussion during a hearing does not inform the appellant that other issues not discussed during the hearing no longer remain on appeal. And, the appellant's consent to limit the scope of the hearing to certain other issues does not constitute a knowing and voluntary waiver of his right to pursue all issues on appeal.
For all of the above reasons, the Board was obligated to consider the
merits of all issues listed in the SOC, and it erred in failing to do so. Accordingly, the Court will reverse the Board's determination that the appellant's claims for asbestos exposure, hepatitis B,and hepatitis C were no
longer in appellate status and will remand those claims for consideration
by the Board on the merits. See Robinson, supra."
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----------------------------------------------------


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2133
JAMES I. EVANS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided January 28, 2011)
Kenneth L. LaVan, with whom Dianne E. Olson, both of Fort Lauderdale,
Florida, was on
the pleadings for the appellant.
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General
Counsel; Edward
V. Cassidy, Jr., Deputy Assistant General Counsel, and Christopher O.
Adeloye, all of Washington,
D.C., for the appellee.
Before MOORMAN, LANCE, and SCHOELEN, Judges.
MOORMAN, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a
separate
opinion concurring in part and dissenting in part.
MOORMAN, Judge: The appellant, James I. Evans, through counsel, appeals an
April 17,
2008, Board of Veterans' Appeals (Board) decision that denied his claim of
entitlement to service
connection for the residuals of a collapsed lung, remanded his claims of
entitlement to service
connection for a back disorder and to a compensable evaluation for
residuals of a fractured distal left
fibular shaft, and dismissed his claims for asbestos exposure, hepatitis B,
and hepatitis C. Record
(R.) at 3-4. This appeal is timely, and the Court has jurisdiction over
the case pursuant to 38 U.S.C.
§§ 7252(a) and 7266. The appellant does not present any argument
concerning the denial of his
claim for the residuals of a collapsed lung. Accordingly, that claim is
deemed abandoned. See Ford
v. Gober, 10 Vet.App. 531, 535 (1997). In addition, the Court will not
discuss the claims remanded
bythe Board, as the Court does not have jurisdiction over them and the
appellant makes no argument
with respect to them. See Link v. West, 12 Vet.App. 39, 47 (1998); Marlow
v. West, 11 Vet.App. 53,
55 (1998). For the reasons that follow, the Court will vacate the April 17,
2008, Board decision as


to its dismissal of the appellant's claims for asbestos exposure,
hepatitis B, and hepatitis C and
remand those matters for further proceedings consistent with this decision.
However, the Court will
dismiss the appellant's appeal as to his claims for memory loss, migraines,
and plantar fasciitis that
were not the subject of the Board decision on appeal.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from August 1968
until August 1970.
R. at 573.
InJuly2003,theappellant filed a claim with the St. Petersburg,Florida,
regionaloffice(RO),
seeking entitlement to service connection for a back condition, bilateral
wrist conditions, hepatitis
C, carpel tunnel syndrome, a collapsed lung, drug addiction, and a lung
condition due to asbestos
exposure. R. at 484-85. The appellant also sought a compensable rating for
his service-connected
distal left fibular shaft fracture and the reopening of a previously
denied claim for a forehead injury.
R. at 484. At a later date, the appellant added claims for an eye
condition, hepatitis B, a stab wound
to the chest, and a heart condition. R. at 448, 450.
In February 2004, the RO issued a rating decision that disposed of 16
separate claims. R. at
391. Within that decision, the RO continued the appellant's noncompensable
rating for his fibular
shaft fracture, denied entitlement to a non-service-connected pension, and
also denied reopening of
the appellant's claim for the residuals of a forehead injury. R. at 391.
The decision further denied
entitlement to service connection for an eye condition, the residuals of a
stab wound to the chest, the
residuals of a collapsed lung, asbestos exposure, heart trouble, drug and
alcohol addiction, hepatitis
B and C, a back disability, carpal tunnel syndrome, a scar on the left
wrist, and bilateral plantar
fasciitis. Id. The appellant timely filed a Notice of Disagreement (NOD)
to the RO's decision with
respect to his claims for asbestos exposure, a back disability, a
collapsed lung, hepatitis B and C, and
his distal left fibular shaft fracture. R. at 379-84. The appellant also
raised new claims for a neck
condition, migraines, and memory loss.
Id.
However, the appellant did not express any
disagreement with the other ten claims decided by the RO in the February
2004 decision. Id.
In September 2004, the RO issued a Statement of the Case (SOC) with
respect to the six
claims referenced in the appellant's NOD. R. at 311-31. The RO also issued
a rating decision with
2


respect to the appellant's newly filed claims for a neck condition,
migraines, and memory loss. R.
at 334-39. The record before the Court does not reflect an NOD with
respect to the September 2004
rating decision; however, using a VA Form 9,1
the appellant filed a Substantive Appeal with the
Board concerning the "issues" outlined in the September 2004 SOC. R. at
309-10. On his Form 9,
the appellant checked the first box in section 9.A. stating that "I WANT
TO APPEAL ALL OF THE
ISSUES LISTED ON THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL
STATEMENTS OF THE CASE THAT MY LOCAL VA OFFICE SENT TO ME." R. at 309. In
the space provided below part B of section 9 on that same Form 9, the
appellant specifically listed
as issues the RO's denial of his claims for fractured distal fibular shaft,
back injury, and collapsed
lung. Id.
In January 2008, the Board provided a hearing for the appellant. R. at 124-
52. During that
hearing, the hearing officer stated that: "In our prehearing conference we
determined that we have
three issues on appeal today, those being entitlement to service
connection for a back disability,
service connection for residuals of a collapsed lung, and entitlement to a
compensable (increased)
evaluation for residuals of a fracture of the left distal fibular
tip/shaft. Is that the correctly stated
issues?" R. at 125. The appellant replied, "That's correct." Id. The
hearing officer concluded the
hearing by asking the appellant: "Is there anything that you would like to
add at this time that you
don't feel that we've discussed with regard to your back, your lungs or,
essentially, your left ankle?"
R. at 151. The appellant declined to add anything. Id. In the decision now
on appeal, the Board
fully addressed the three "issues" specificallyoutlined in the appellant's
Form 9; however, the Board
dismissed the appellant's claims for asbestos exposure, hepatitis B, and
hepatitis C under 38 C.F.R.
§ 20.202 because it reasoned that the appellant's Form 9 showed that the
appellant was only
appealing the "issues" related to a back disorder, the residuals of a
collapsed lung, and entitlement
to a higher rating for the residuals of a fractured distal left fibular
shaft. R. at 4.
The appellant's VA Form 9 that was submitted by the parties as part of the
record of proceedings is attached
to this opinion. R. at 309. Although the printed instructions for
completing the VA Form 9 were not included in the
record of proceedings, the Court is attaching a copy of the full text of
VA's Form 9 including those instructions. This
is the same version of the form that was submitted by the appellant.
1
3


II. ANALYSIS
A. The Court's Jurisdiction
In his brief to the Court, the appellant argues that the Board erred by
not adjudicating his
claims for asbestos exposure, hepatitis B, hepatitis C, memory loss,
migraines, and bilateral plantar
fasciitis. Appellant's Brief (Br.) at 7. Specifically, he asserts that the
Court's caselaw required the
Board to liberallyread his Form 9Substantive Appeal and to address all
issues possiblyraised within
that appeal. Id. at 20-24. The Secretarycounters that the Court lacks
jurisdiction over the appellant's
asbestos, hepatitis, memory loss, migraine, and plantar fasciitis claims
because those claims were
never properly raised before the Board. Secretary's Br. at 7. In support
of this contention, the
Secretary argues that, under 38 U.S.C. § 7.105(d)(5), 38 C.F.R. § 20.202,
and this Court's caselaw,
the Board was free to dismiss claims where the appellant did not allege
some error committed bythe
RO. Id. at 7-10.
The Court's appellate jurisdiction derives exclusively from the statutory
grant of authority
provided by Congress, and the Court may not extend its jurisdiction beyond
that which is permitted
by law.
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818 (1988);
Henderson v. Peake, 22 Vet.App. 217, 219 (2008), aff'd sub nom. Henderson
v. Shinseki,
589 F.3d 1201 (Fed. Cir. 2009) (en banc), cert. granted, 1301 S.Ct. 3502 (
2010). Congress has
established that the Court "shall have power to affirm, modify, or reverse
a decision of the Board or
to remand the matter, as appropriate." 38 U.S.C. § 7252(a). Consequently,
the Court's "jurisdiction
is premised on and defined bythe Board's decision concerning the matter
being appealed," and when
the Board has not rendered a decision on a particular issue, the Court
generally has no jurisdiction
under section 7252 (a) to consider the merits of the matter. Ledford v.
West, 136 F.3d 776, 779
(Fed. Cir. 1998); see also Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir.
2000). Nonetheless,
the Court exercises de novo review over Board determinations that
arecritical to its jurisdiction. See
Stokes v. Derwinski, 1 Vet.App. 201, 203-204 (1991) (finding that the
Court may find facts "crucial
to the proper determination of whether this Court has jurisdiction"); see
also Butts v. Brown,
5 Vet.App. 532, 539 (1993) (en banc) (Court reviews "questions of law de
novo without any
deference to the [Board's] conclusions of law").
4


1. Claims Dismissed by the Board
Withrespectto theBoard's dismissaloftheappellant's
claimsforasbestosexposure,hepatitis
B, and hepatitis C, the Court agrees with the appellant that remand is
necessary. The Court has the
power to review the Board's refusal to exercise its jurisdiction. Butts,
supra. In this case, the Court
has jurisdiction to determine whether the Board acted properly in
dismissing the appellant's claims
for asbestos exposure, hepatitis B, and hepatitis C pursuant to 38 U.S.C. §
7105 and VA's
implementing regulation, 38 C.F.R. § 20.202.
Pursuant to 38 U.S.C. § 7105, the filing of an NOD initiates appellate
review in the VA
administrative adjudication process, and the request for appellate review
is completed by the
claimant's filing of a Substantive Appeal, after an SOC is issued by VA.
38 U.S.C. § 7105(a),
(d)(1), (d)(3); see Archbold v. Brown, 9 Vet.App. 124, 132 (1996); Rowell
v. Principi, 4 Vet.App.
9, 14 (1993). The statute states in relevant part that
Copies of the "statement of the case" prescribed in paragraph (1) of this
subsection
will be submitted to the claimant and to the claimant's representative
. . . . The
claimant will be afforded a period of sixty days from the date the
statement of the
case is mailed to file the formal appeal. This may be extended for a
reasonable
period on request for good cause shown. The appeal should set out specific
allegations or error of fact or law, such allegations related to specific
items in the
statement of the case. The benefits sought on appeal must be clearly
identified.
38 U.S.C. § 7105(d)(3). Once the Board has accepted a Substantive Appeal
and acquired
jurisdiction, it is well established that the Board must review all issues
and theories that are
reasonably raised by the claimant or the evidence of record. See generally
Robinson v. Peak,
21 Vet.App. 545 (2008), Jarrell v. Nicholson, 20 Vet.App. 326, 331-32 (
2006); Myers v. Derwinski,
1 Vet.App. 127 (1991).
Recently, in Ortiz v. Shinseki, this Court discussed 38 U.S.C. § 7105 and
the requirements
it places on claimants in preparing a Substantive Appeal. 23 Vet.App. 353,
357 (2010). In Ortiz,
the Court addressed whether the appellant's correspondence with VA was
sufficient to satisfy the
requirements of a Substantive Appeal in lieu of a VA Form 9. Id. at 354-55,
358-62. The Court
interpreted the language of 38 U.S.C. § 4005(d)(3) (1980)2
and held that, in a case where there is no
2
Now renumbered as 38 U.S.C. § 7105(d)(3).
5


VA Form 9 filed, the claimant bears the burden of "expand[ing] upon their
initial disagreement with
the RO decision by setting forth, however inartfully, a particular theory
of error for the Board to
decide." Ortiz, 23 Vet.App. at 357. The present case, however, presents an
issue not addressed in
Ortiz. In this case, unlike in Ortiz, the appellant undeniably submitted a
VA Form 9 following the
September 2004 SOC. R. at 309. As a consequence, the issue here is whether
a claimant limits the
issues before the Board when he files a VA Form 9 in which he checks the
box indicating his desire
to appeal all issues listed in the SOC, but also specifies on the Form 9
arguments as to some, but not
all, issues listed in the SOC.
The September 2004 SOC covered the following six issues: (1) an increased
rating for the
appellant's service-connected residuals of a fractured distal left fibular
shaft, (2) service connection
for a back disability, (3) service connection for asbestos exposure, (4)
service connection for
hepatitis B, (5) service connection for hepatitis C, and (6) service
connection for the residuals of a
collapsed lung. R. at 313. In response to the SOC, the appellant submitted
a Substantive Appeal in
the form of a VA Form 9, on which he checked the box indicating that he
wanted to appeal "all of
the issues" stated in the SOC. R. at 309. However, on that same Form 9,
the appellant specifically
listed as issues the RO's denial of his claims for fractured distal
fibular shaft, back injury, and
collapsed lung. Id.
This Form 9 was accepted as a Substantive Appeal and the appellant's case
went before the
Board.3
In May 2005, the appellant's representative from a veterans service
organization submitted
a letter listing distal fibular shaft, back injury, and collapsed lung as
the "[i]ssues [p]resented for
[r]eview." R. at 302. In January 2008, the appellant presented testimony
at a Board hearing. R. at
124-152. At the outset of the hearing, the hearing officer stated that: "
In our prehearing conference
we determined that we have three issues on appeal today, those being
entitlement to service
connection for a back disability, serviceconnection for residuals of a
collapsedlung, and entitlement
to a compensable (increased) evaluation for residuals of a fracture of the
left distal fibular tip/shaft.
Is that the correctly stated issues?" The appellant replied, "That's
correct." R. at 125. The hearing
3
The record before the Court does not contain any evidence of whether all
or only three of the six issues listed
in the September 2004 SOC were certified by the RO as on appeal to the
Board. See 38 C.F.R. § 19.35 (2010)
(providing that a VA Form 8 "'Certification of Appeal' . . . is used for
administrative purposes and does not serve to either
confer or deprive the Board[ ] of jurisdiction over an issue").
6


officer then concluded the hearing by asking the appellant: "Is there
anything that you would like to
add at this time that you don't feel that we've discussed with regard to
your back, your lungs or,
essentially, your left ankle?" R. at 151. The appellant declined to add
anything. Id.
In its April 2008 decision here on appeal, the Board noted that
the veteran's appeal had originally included the issues of entitlement to
service
connection for asbestos exposure, hepatitis B, and hepatitis C. However,
in his
October 2004 VA Form 9, the veteran stated that he was only appealing the
issues
of entitlement to service connection for a back disorder and residuals of
a collapsed
lung and for an increased evaluat[ion] for his residuals of a fractured
distal left
fibular shaft. As such, the veteran has not filed a substantive appeal for
the other
issues. See 38 C.F.R. § 20.202. Accordingly, the issues of asbestos
exposure,
hepatitis B, and hepatitis C no longer remain in appellate status and no
further
consideration is required.
R. at 4.
This Court has held that the Board maywaive both the timeliness and
adequacyrequirements
of a Substantive Appeal. Percy v. Shinseki, 23 Vet.App. 37, 47 (2009). As
the Court noted in Percy,
in determiningtheadequacyofaSubstantive Appeal, "VA maywaive 'any. . .
pleadingrequirements
on the part of the appellant.'" Id. (quoting Gomez v. Principi, 17 Vet.App.
369, 372-73 (2003)). The
Court explained that the congressional intent of § 7105(d)(3) "is
inconsistent with [] VA [] treat[ing]
its procedures as a minefield that the veteran must successfully negotiate
in order to obtain the
benefits that Congress intended to bestow on behalf of a grateful nation.
If VA treats an appeal as
if it is timely filed, a veteran is entitled to expect that VA means what
it says." Id.
The box that VA's Form 9 provides for a claimant to check when he wants to
inform VA of
his intent "to appeal all of the issues listed on the [SOC] and any [SSOC]
that my local VA office
sent to me" must be read to mean what it says. Id. If the veteran checks
that box on VA's Form 9,
he has expressed his intention to appeal all issues. When VA selects only
certain issues to decide
on appeal, without directly informing the veteran that he is abandoning
the remaining issues, VA
creates an ambiguity that must be resolved in the veteran's favor. The
Board has an obligation to
read pro se filings liberally both for proceedings appealing the decision
of the RO to the Board and
for proceedings alleging clear and unmistakable error. Comer v. Peake, 552
F.3d 1362, 1368 (Fed.
Cir. 2009); Andrews v. Nicholson, 421 F.3d 1278, 1282-84 (Fed. Cir. 2005);
Roberson v. Principi,
7


251 F.3d 1378, 1380-84 (Fed. Cir. 2001). This obligation also applies to
filings made byrepresented
appellants in their direct appeals to the Board. Robinson v. Shinseki, 557
F.3d 1355, 1359 (Fed. Cir.
2009). Essentially, the Secretary offered to waive the statutory adequacy
requirements for a
Substantive Appeal when he included a box on the Form 9 allowing a
claimant to check off that he
wishes to appeal all issues listed in the SOC. R. at 309. Consequently,
even if the appellant had not
stated a single argument, the Board would have still been obligated to
consider all the issues on
appeal and to review all the issues and theories reasonably raised by the
evidence of record.
Robinson, supra. We, therefore, hold that if a claimant uses a VA Form 9
and checks box 9.A.
stating that "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT
OF
THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY LOCAL
VA OFFICE SENT TO ME," then all issues listed on the SOC are on appeal to
the Board and it has
waived its ability to dismiss any of those issues under 38 U.S.C. § 7105(
d)(5).
Although the Board must consider all the issues listed in the SOC when the
claimant checks
the box in section 9.A. of VA's Form 9, the Board and the appellant are
not powerless to thereafter
limit the issues on appeal. The Secretaryhas specificallyprovided
procedures fora valid withdrawal
of an entire appeal or issues within an appeal. 38 C.F.R. § 20.204. The
issues on appeal could have
been limited if the appellant's intent to do so was clear on the record.
However, there is nothing in
the record before the Court to make it clear that the Board hearing
officer informed the appellant that
he was abandoning his right to appeal certain issues and the appellant
affirmatively confirmed his
desire to do so. Further, the Board could not have deemed the appeal
abandoned in writing, rather
than at the hearing, as there is no formal writing in the record
evidencing such a withdrawal. See
38 C.F.R. § 20.204(b)(1) (requiring that appeals not withdrawn on the
record at a hearing must be
in writing and "[i]f the appeal involves multiple issues, the withdrawal
must specify that the appeal
is withdrawn in its entirety, or list the issue(s) withdrawn from the
appeal.").
The Secretary argues that the appellant "explicitly abandoned" the issues
of asbestos
exposure, hepatitis B, and hepatitis C during his January2008 hearing
before the Board. Secretary's
Br. at 13-14. However, there is nothing in the record to indicate that the
appellant was ever informed
that only three of the six issues listed in the SOC remained on appeal
following the hearing. For
example, VA's Form 9 itself does not include instructions stating that if
a claimant checks box 9.A.
8


and lists certain issues in box 9.B., the latter controls. Moreover, the
appellant never made any
affirmative statement that he intended to abandon those three issues on
appeal. The hearing officer
at the Board hearing steered the conversation to only three issues but
never made any statement and
never received an affirmative statement from the appellant that he was
abandoning on appeal any of
the other issues contained in the SOC by not addressing them at that time.
R. at 125. In light of the
well-established requirement that VA read pro se filings liberally in the
context of a direct appeal
to the Board, the Board must, in the absence of a clear waiver on the
record, abide by the Form 9 box
that the appellant checked. See Comer, supra.
The appellant's statements at the January 2008 hearing did not constitute
a knowing and
voluntarywaiver of his right to pursue an appeal as to compensation for
asbestos exposure, hepatitis
B, and hepatitis C. See United States v. Olano, 507 U.S. 725, 733 (1993) (
holding "waiver is the
'intentional relinquishment or abandonment of a known right'" (quoting
Johnson v. Zerbst,
304 U.S. 458, 464 (1938))); Janssen v. Principi, 15 Vet.App. 370, 375 (
2001) ("Th[e] concept of an
appellant's right to make a knowing and voluntarywaiver of consideration
of procedural protections
is neither foreign to nor prohibited by this Court. To the contrary, this
Court has long accepted the
ability of appellants to waive certain procedural rights."). The Court
further notes that the hearing
officer did not comply with his duty to fully explain to the appellant the
issues in terms of the scope
of the claim for benefits.
See Previous DocumentBryantNext Document v. Shinseki, 23 Vet.App. 488, 492-93 (2010);
38 C.F.R. § 3.103(c)(2). A Board hearing officer's statement that only
certain issues are for
discussion during a hearing does not inform the appellant that other
issues not discussed during the
hearing no longer remain on appeal. And, the appellant's consent to limit
the scope of the hearing
to certain other issues does not constitute a knowing and voluntary waiver
of his right to pursue all
issues on appeal.
For all of the abovereasons, the Board was obligated to consider the
merits of all issues listed
in the SOC, and it erred in failing to do so. Accordingly, the Court will
reverse the Board's
determination that the appellant's claims for asbestos exposure, hepatitis
B, and hepatitis C were no
longer in appellate status and will remand those claims for consideration
bythe Board on the merits.
See Robinson, supra.
9


2. Claims Not Addressed by the Board
To the extent that the appellant makes arguments concerning his claims for
memory loss,
migraines, and fasciitis, which were not decided by the Board, the Court
has no jurisdiction to
consider these claims on the merits absent a Board decision addressing
them. See Jarrell,
20 Vet.App. at 331 (noting that the Board does not have jurisdiction over
a claim until the RO first
issues a decision on it); see also 38 U.S.C. § 7104(a). The Court notes
that it is not apparent from
the record that the appellant ever filed an NOD as to these claims after
the RO decided them. To the
extent that the appellant believes he has a pending appeal as to these
claims, he should raise this
issue to VA. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006). If the
Board determines that no
timely NOD was filed or if it denies the claims on the merits, the
appellant can appeal by filing a
Notice of Appeal with the Court within 120 days of the Board's decision.
38 U.S.C. § 7266(a).
B. Appellant's Merit Argument
The Court acknowledges the appellant's argument that VA did not meet its
dutyto assist with
respect to his claim for service connection for a lung condition caused by
asbestos exposure.
Appellant's Br. at 24. However, as this claim has not been considered on
the merits by the Board,
the Court will not address this issue, but will allow the Board to
consider it in the first instance. See
Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000) (finding that the
Court "may hear legal
arguments raised for the first time with regard to a claim that is
properly before the court, [but] it is
not compelled to do so in every instance"). Accordingly, the Court will
vacate the April 17, 2008,
Board decision with respect to the appellant's claims for asbestos
exposure, hepatitis B, and hepatitis
C and remand those matters for further proceedings consistent with this
opinion. However, the
appellant's appeal for service connection for memory loss, migraines, and
plantar fasciitis is
dismissedforlackofjurisdiction because those conditions were not the
subject of theBoarddecision
now on appeal. On remand, the appellant is free to submit additional
evidence and argument,
including the arguments raised in his briefs to this Court, in accordance
with Kutscherousky v. West,
12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence
or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002).
The Board shall proceed
expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring
Secretary to provide for
"expeditious treatment" of claims remanded by Board or Court).
10


IV. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's April 17, 2008, decision is REVERSED with respect to the
Board's determination that
the appellant's claims for asbestos exposure, hepatitis B, and hepatitis C
were no longer in appellate
status, and the matters are REMANDED to the Board for further proceedings
consistent with this
opinion. The appeal as to his claim for service connection for memory loss,
migraines, and plantar
fasciitis is DISMISSED for lack of jurisdiction.
SCHOELEN, Judge, joins, concurring in part and dissenting in part: I
concur with the majority's
decision to vacate the Board decision and remand the matter to the Board
for further proceedings.
I must dissent, however, from the remainder of the majority's decision. A
remand is warranted in
this case because the Board failed to give an adequate statement of
reasons or bases for its
conclusion that Mr. Evans had not filed a Substantive Appeal on three of
the six issues that were
identified in his NOD and the RO's SOC.
The Board indicated that it arrived at its conclusion that three of the
issues "no longer
remain[ed] in anappellatestatus"because the appellant stated in his
Substantive Appeal that "hewas
only appealing the issues of entitlement to service connection for a back
disorder and residuals of
a collapsed lung and for an increased evaluat[ion] for residuals of a
fractured distal left fibular
shaft." R. at 4. However, a review of Mr. Evans's Substantive Appeal
indicates that he did not
actually state that he was limiting his appeal to three issues. Because it
is apparent that the Board
interpreted the various statements that Mr. Evans made on the Substantive
Appeal to arrive at its
conclusion, it is important for the Court to review the appellant's
Substantive Appeal.
A Substantive Appeal must satisfy two criteria. It must "identify the
benefits sought" and
"set out specific allegations or error of fact or law." 38 U.S.C. § 7105(
d)(3); 38 C.F.R. § 20.202
(2010). To "the extent feasible, the argument should be related to
specific items in the [SOC]."
38 C.F.R. § 20.202. The purpose of the Substantive Appeal specificity
requirement is to give the
Board some guidance as to what error the claimant perceives occurred in
his case. Ortiz v. Shinseki,
23 Vet.App. 353, 357 (2010) (holding that the Substantive Appeal procedure
places "a burden on
11


claimants to expand upon their initial disagreement with the RO decision
by setting forth–however
inartfully–a particular theory of error for the Board to decide"). If an
SOC involves multiple issues,
the Substantive Appeal must indicate that the claimant wishes to appeal
all of the issues set forth in
the SOC or "it must specifically identify the issues appealed." 38 C.F.R. §
20.202.
VA created the VA Form 9 for claimants to use to file a Substantive Appeal.
The VA Form
9 contains clear instructions to claimants as to how to complete the Form
9 so that it satisfies both
statutory requirements for a Substantive Appeal. The instructions on the
VA Form 9 direct a
claimant that the purpose of box 9 is to identify the issues that the
claimant wishes to appeal. The
claimant is then given a choice to complete either box 9.A. or 9.B.,
depending upon whether or not
he is appealing all of the issues listed on the SOC or Supplemental SOC (
SSOC). The directions
instruct the claimant to check box 9.A. if he is interested in appealing
all of the issues listed on the
SOC.4
R. at 309. That box states "I WANT TO APPEAL ALL OF THE ISSUES LISTED ON
THE
STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENTS OF THE CASE
THAT MY LOCAL VA OFFICE SENT TO ME." R. at 309.
Alternatively, the Form 9 instructs the claimant to check box 9.B. only if
he is appealing
some but not all of the issues on the SOC. Id. The preprinted language in
block 9.B. states: "I
4
The instructions on the back of the VA Form 9 state in pertinent part:
.
Block 9. Save what you want to tell us about why you are appealing for the
next
block. This is the block where you tell us exactly what you are appealing.
You do this
by identifying the "issues" you are appealing. Your local VA office has
tried to
accurately identify the issues and has listed them on the SOC and any SSOC
it sent
you.
If you think that your local VA office has correctly identified the issues
you are
appealing and, after reading the SOC and any SSOC you received, you still
want to
appeal its decisions on all those issues, check the first box in block 9.
Do not check
the second box if you check the first box.
Check the second check box in block 9 if you only want to continue your
appeal on
some of the issues listed on the SOC and any SSOC you received. List the
specific
issues you want to appeal in the space under the second box.
Emphasis in original.
12


HAVE READ THE [SOC] AND ANY [SSOC] I RECEIVED. I AM ONLY APPEALING THESE
ISSUES. (LIST BELOW)." Box 9.B. further instructs the claimant to identify
the issues he wishes
to appeal in the space provided below the box. The instructions on the VA
Form 9 make clear that
a claimant completes either box 9.A. or 9.B., but not both boxes.
Here, Mr. Evans checked the first preprinted box in section 9.A.
indicating that he wished
to appeal all of the issues on the Statement of the Case. R. at 309.
However, Mr. Evans also
partially completed block 9.B. Although he did not check Block 9.B., he
identified three issues in
the space below the box: a fractured distal fibular shaft, back injury,
and collapsed lung. Id. By
checking box 9.A. and partially completing box 9.B., the appellant created
confusion regarding
which issues he intended to appeal.
Addingto the confusion regarding the appellant's intent is the manner in
which he completed
box 10 of the form. Block 10 of VA Form 9, is entitled: "HERE IS WHY I
THINK THAT VA
DECIDED MY CASE INCORRECTLY." R. at 309. The VA Form 9 states that the
purpose of
block 10 is to allow the claimant to list the errors that VA committed
when it denied the claims. The
VA Form 9 directs the claimant to make specific allegations of error with
respect to the RO denial
of his claims in this space.5
Id. Mr. Evans completed block 10 and made general allegations of error
regarding the three claims that he identified in Block 9B. However, he did
not make any argument
regarding the other claims that were listed on the SOC.
Here, ascertaining the appellant's intent is difficult because of the
manner in which he
completed the VA Form 9. Mr. Evans checked 9.A. indicating that he wished
to appeal all of the
issues listed in the SOC, but he also partially completed 9.B., which is
reserved for claimants who
seek to appeal some but not all of the issues listed on the SOC. By
identifying only three issues on
appeal under 9.B., the appellant expressed an intent that is obviously
inconsistent with the intent he
expressed by checking box 9.A. to appeal all of the issues. This confusion
is compounded by the
5
The instructions on the VA Form 9 with regard to Block 10 state in
pertinent part:
Use this block to tell us why you disagree with the decision made by your
local VA
office. Tie your arguments to the issues you identified in block 9. Tell
us what facts
you think VA got wrong and/or how you think VA misapplied the law in your
case.
Try to be specific. . . . . .
13


way that the appellant completed box 10. Under that box, the appellant
made arguments regarding
errors that the RO had committed regarding its denial of the same three
issues that he indicated he
was appealing in box 9.B.
Faced with a Substantive Appeal that contained conflicting statements
regarding the issues
that Mr. Evans intended to appeal, the Board concluded that Mr. Evans
intended to limit his appeal
to only three of the issues listed in the SOC. The deficiency in the Board
decision is that it does not
provide an explanation as to how it resolved the seemingly conflicting
statements on Mr. Evans's
Substantive Appeal to arrive at its conclusion. See Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990)
("A bare conclusory statement, without both supporting analysis and
explanation, is neither helpful
to the veteran, nor 'clear enough to permiteffectivejudicialreview,'norin
compliancewith statutory
requirements.") (quoting Int'l Longshoremen's Assoc. v. Nat'l Mediation Bd
., 870 F.2d 733, 735
(D.C. Cir. 1989)). Additionally, it is unclear whether the Board reached
this conclusion after
sympathetically reading Mr. Evans's Substantive Appeal. See Szemraj v.
Principi, 357 F.3d 1370,
1373 (Fed. Cir. 2004);
Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001);
Robinson v. Peake, 21 Vet.App. 545 (2008).
The Board's only explanation for its decision is the cursory statement
that the appellant
"stated" that he intended to limit his appeal. However, this summary
conclusion is inadequate
because it does not provide this Court or the appellant with an
explanation of how the Board
considered and weighed the conflicting information on the VA Form 9. The
majority characterizes
the issue on appeal as "whether a claimant limits the issues before the
Board when he files a VA
Form 9 in which he checks the box indicating his desire to appeal all
issues listed in the SOC, but
also specifies on the Form 9 arguments as to some, but not all, issues
listed in the SOC." However,
the Board did not give this reason for its decision. In fact, it is
impossible to discern from the
cursory nature of the Board decision that the Board arrived at its
conclusion because the appellant
did not make an argument as to each of the six issues listed in the SOC.
There is no mention in the
Board decision that it considered Mr. Evans's Substantive Appeal
inadequate because he did not
complywith the specificity requirement as to the three disputed issues. It
is impossible to determine
from the Board's conclusory language that this was a basis for its
decision. It is because of this
fundamental deficiency in the Board's statement of reasons or bases that I
would remand this Board
14


decision.
The Board decision is also inadequate because the Board did not follow
established
procedure when it sua sponte raised the issue of the adequacy of the
appellant's Substantive Appeal
form. See 38 C.F.R. § 20.101(d). There is no evidence in the record that
the Board followed the
requirements of § 20.101(d). Mr. Evans was not notified that the Board
questioned the adequacy of
his Substantive Appeal, and he was not allowed an opportunity to present
written argument and
evidence on this issue before the Board decided the issue of the
adequacyof his Substantive Appeal.
This Court has repeatedly held that the Secretary must comply with his own
regulations. See, e.g.,
Snyder v. Principi, 15 Vet.App. 285, 291 (2001) (citing Vitarelli v.
Seaton, 359 U.S. 535, 539-40
(1959), Service v. Dulles, 354 U.S. 363, 383-89 (1957), and United States
ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 265-68 (1954), for the proposition
that "a federal agency is
bound to follow its own regulations as long as they are in force"); Cox v.
Gober, 14 Vet.App. 148,
152 (2000) (same); Patton v. West, 12 Vet.App. 272, 283 (1999); Buzinski v.
Brown, 6 Vet.App.360,
367 (1994). On remand, I would instruct the Board to comply with the terms
of 20 C.F.R. § 20.101
to clarify Mr. Evans's intent.
I respectively disagree with the majority's holding that if a claimant
uses VA Form 9 and
checks box 9.A., indicating that he wishes to appeal all of the issues
listed on the SOC, then all
issues listed on the SOC are on appeal to the Board. The majority holds
that the Secretary waives
the statutory adequacy requirements for a Substantive Appeal when he
includes a box on the VA
Form 9 allowing a claimant to check off that he wishes to appeal all
issues listed in the SOC. Under
the majority's view, the Board would be obligated to consider all the
issues on appeal and to review
all the issues and theories reasonably raised by the evidence of record
even if the appellant had not
stated a single argument.
The rationale for their broad holding is that VA Form 9 is ambiguous
because it does not
inform a claimant that certain issues will be deemed abandoned if the
claimant fails to list errors in
the RO denial of his claims. Although I share the majority's concern that
procedure should not be
a trap for the lay veteran, I disagree with the majority that VA Form 9 is
ambiguous. The VA Form
9 is designed to enable a claimant to satisfythe statutorycriteria for a
Substantive Appeal. The form
is clearly written, and the instructions provide sufficient detail to
enable a claimant to properly
15


complete the form to satisfy both of the statutory criteria for a
Substantive Appeal. Essentially, the
majority faults the VA Form 9 not because it is unclear or confusing, but
because it does not warn
a claimant that if he does not complete the form properly, he runs the
risk that his Substantive
Appeal will be deemed inadequate. However, the majoritypoints to no law
that requires VA to warn
claimants of the legal consequences that arise if they fail to properly
complete the VA Form 9.
Additionally, although we held in Percy v. Shinseki, 23 Vet.App. 37, 47-48 (
2009), that the
Board has the power to waive the timeliness and sufficiency requirements
for a Substantive Appeal,
the Court did so after considering VA's conduct in handling Mr. Percy's
claim. The Court held that
bytreating the appellant's issue of a rating increase as though it had
been properly appealed for more
than five years, during which time "VA engaged in substantive and
procedural development,
scheduled hearings on the matter, and took testimony on the matter," VA
waived any objection it
might have had to the timeliness and adequacy of the appellant's
Substantive Appeal. Id. at 47.
Here, the majority does not explain how the rather extraordinary facts of
Percy are presented by this
appeal. Under the majority's approach, the mere fact that a claimant used
a VA Form 9 to file his
Substantive Appeal is asufficient reason to
findthattheSecretarywaivedthespecificityrequirement
of the Substantive Appeal. Thus, the majority essentially holds that the
Secretary waives the
specificity requirement in every case in which a claimant uses a VA Form 9,
but the majority has
pointed to no evidence of such an intent by the Secretary. Thus, I must
respectfully dissent.
16




Form Approved: OMB No. 2900-0085
Respondent Burden: 1 Hour
APPEAL TO BOARD OF VETERANS’ APPEALS
IMPORTANT: Read the attached instructions before you fill out this form.
VA also encourages you to get assistance from your
representative in filling out this form.
1. NAME OF VETERAN (Last Name, First Name, Middle Initial)
2. CLAIM FILE NO. (Include prefix)
3. INSURANCE FILE NO., OR LOAN NO.
4. I AM THE:
VETERAN
OTHER (Specify)
VETERAN’S WIDOW/ER
VETERAN’S CHILD
VETERAN’S PARENT
5. TELEPHONE NUMBERS
A. HOME (Include Area Code)
B. WORK (Include Area Code)
6. MY ADDRESS IS:
(Number & Street or Post Office Box, City, State & ZIP Code)
7. IF I AM NOT THE VETERAN, MY NAME IS:
(Last Name, First Name, Middle Initial)
8. HEARING
IMPORTANT: Read the information about this block in paragraph 6 of the
attached instructions. This block is used to request a Board of
Veterans’
Appeals hearing. DO NOT USE THIS FORM TO REQUEST A HEARING BEFORE A VA
REGIONAL OFFICE HEARING OFFICER.
Check one (and only one) of the following boxes:
A.
B.
C.
I DO NOT WANT A BVA HEARING.
I WANT A BVA HEARING IN WASHINGTON, DC.
I WANT A BVA HEARING AT A LOCAL VA OFFICE BEFORE A MEMBER, OR MEMBERS, OF
THE BVA.
(Not available at Washington, DC, or Baltimore, MD, Regional Offices.)
9. THESE ARE THE ISSUES I WANT TO APPEAL TO THE BVA: (Be sure to read the
information about this block in paragraph 6 of the attached instructions.)
I WANT TO APPEAL ALL OF THE ISSUES LISTED ON THE STATEMENT OF THE CASE AND
ANY SUPPLEMENTAL STATEMENTS OF THE CASE THAT MY
LOCAL VA OFFICE SENT TO ME.
A.
B.
I HAVE READ THE STATEMENT OF THE CASE AND ANY SUPPLEMENTAL STATEMENT OF
THE CASE I RECEIVED. I AM ONLY APPEALING THESE ISSUES: (List below.)
10. HERE IS WHY I THINK THAT VA DECIDED MY CASE INCORRECTLY: (Be sure to
read the information about this block in paragraph 6 of the attached
instructions.)
(Continue on the back, or attach sheets of paper, if you need more space.)
11. SIGNATURE OF PERSON MAKING THIS APPEAL
12. DATE
13. SIGNATURE OF APPOINTED REPRESENTATIVE, IF ANY
14. DATE
(Not required if signed by appellant. See paragraph 6 of the
instructions.)
VA FORM
JAN 1998(RS)
9
JetForm


We are required by law to give you the information in this box.
Instructions for filling out the form follow the box.
RESPONDENT BURDEN: VA may not conduct or sponsor, and the respondent is
not required to respond to, this collection of
information unless it displays a valid Office of Management and Budget (
OMB) Control Number. The information requested is
approved under OMB Control Number (2900-0085). Public reporting burden for
this collection of information is estimated to average
one hour per response, including the time for reviewing instructions,
searching existing data sources, gathering and maintaining the
data needed, and completing and reviewing the collection of information.
Send comments regarding this burden estimate or any
other aspects of this collection, including suggestions for reducing this
burden, to VA Clearance Officer (045A4), 810 Vermont
Ave., NW, Washington, DC 20420. DO NOT send requests for benefits to this
address.
PRIVACY ACT STATEMENT: Our authority for asking for the information you
give to us when you fill out this form is
38 U.S.C. 7105(d)(3), a Federal statute that sets out the requirement for
you to file a formal appeal to complete your appeal on a VA
benefits determination. You use this form to present your appeal to the
Board of Veterans’ Appeals (BVA). It is used by VA in
processing your appeal and it is used by the BVA in deciding your appeal.
Providing this information to VA is voluntary, but if you
fail to furnish this information VA will close your appeal and you may
lose your right to appeal the benefit determinations you told us
you disagreed with. The Privacy Act of 1974 (5 U.S.C. 552a) and VA’s
confidentiality statue (38 U.S.C. 5701), as implemented by
38 C.F.R. 1.526(a) and 1.576(b), require individuals to provide written
consent before documents or information can be disclosed to
third parties not allowed to receive records or information under any
other provision of law. However, the law permits VA to
disclose the information you include on this form to people outside of VA
in some circumstances. Information about that is given in
notices about VA’s "systems of records" that are periodically published
in the Federal Register as required by the Privacy Act of
1974. Examples of situations in which the information included in this
form might be released to individuals outside of VA include
release to the United States Court of Veterans Appeals, if you later
appeal the BVA’s decision in your case to that court; disclosure to
a medical expert outside of VA, should VA exercise its statutory authority
under 38 U.S.C. 5109 or 7109, to ask for an expert
medical opinion to help decide your case; disclosure to law enforcement
personnel and security guards in order to alert them to the
presence of a dangerous person; disclosure to law enforcement agencies
should the information indicate that there has been a
violation of law; disclosure to a congressional office in order to answer
an inquiry from the congressional office made at your
request; and disclosure to Federal government personnel who have the duty
of inspecting VA’s records to make sure that they are
being properly maintained. See the Federal Register notices described
above for further details.
INSTRUCTIONS
1. CONSIDER GETTING ASSISTANCE: We have tried to give you the general
information most people need to complete this
form in these instructions, but the law about veterans’ benefits can be
complicated. If you have a representative, we encourage you
to work with your representative in completing this form. If you do not
have a representative, we urge you to consider getting one.
Most people who appeal to the Board of Veterans’ Appeals (BVA) do get a
representative. Veterans’ Service Organizations (VSOs)
will represent you at no charge and most people (more than 80 percent) are
represented by VSOs. Under certain circumstances, you
may pay a lawyer or "agent" to represent you. (See the references in
paragraph 9.) Your local VA office can provide you with
information about VSOs who are willing to represent you and forms that you
will need to complete to appoint either a VSO or an
attorney to represent you. Your local bar association may be able to
provide you with the names of attorneys who specialize in
veterans’ law. VA has an 800 number that you can call for assistance: 1-
800-827-1000. There are also a few agents recognized by
VA who can represent claimants.
2. WHAT IS THIS FORM FOR? You told your local VA office that you disagreed
with some decision it made on your claim for
VA benefits, called filing a "Notice of Disagreement." That office then
mailed you a "Statement of the Case" (SOC) that told you
why and how it came to the decision that it did. After you have read the
SOC, you must decide if you want to go ahead and complete
your appeal so that the BVA will review your case. If you do, you or your
representative must fill out this form and file it with VA.
"Filing" means delivering the completed form to VA in person or by mailing
it to VA. Paragraph 4 tells you how much time you
have to file this form and paragraph 7 tells you where you file it.
When we refer to "your local VA office" in these instructions, we mean the
VA Regional Office that sent you the "Statement of the
Case" or, if you have moved out of the area served by that office, the VA
Regional Office that now has your VA records.
3. DO I HAVE TO FILL OUT THIS FORM AND FILE IT? Fill out this form and
file it with VA if you want to complete your
appeal. If you do not, VA will close your appeal without sending it to the
BVA for a decision. If you decide that you no longer want
to appeal after you have read the SOC, you don’t have to do anything.
4. HOW LONG DO I HAVE TO COMPLETE THIS FORM AND FILE IT? Under current law,
there are three different ways
to calculate how much time you have to complete and file this form. The
one that applies to you is the one that gives you the most
time.
(a) You have one year from the day your local VA office mailed you the
notice of the decision you are appealing.
(b) You have 60 days from the day that your local VA office mailed you the
SOC.
(c) Your local VA office may have sent you an update to the SOC, called a "
Supplemental Statement of the Case" (SSOC).
Under an opinion by VA’s General Counsel, if that SSOC discusses
evidence in your case that VA received within the
one-year period described in paragraph 4(a) of these instructions, above,
and if you have not already filed this form, then you
have at least 60 days from the time your local VA office mailed you the
SSOC to file it even though the one-year period
has already expired.
3


There is one special kind of case, called a "simultaneously contested
claim," where you have 30 days to file this form instead of the
longer time periods described above. A "simultaneously contested claim" is
a case where two different people are asking for the
same kind of VA benefit and one will either lose, or get less, if the
other wins. If you are not sure whether this special exception
applies, ask your representative or call your local VA office.
If you have any questions about the filing deadline in your case, ask your
representative or your local VA office. Filing on time is
very important. Failing to file on time could result in you losing your
right to appeal.
5. WHAT IF I NEED MORE TIME? If you need more time to complete this form
and file it, write to your local VA office,
explaining why you need more time. You must file your request for more
time with your local VA office before the normal time for
filing this form runs out. If you file by mail, VA will use the postmark
date to decide whether you filed the form, or the request for
more time to file it, on time.
6. WHAT KIND OF INFORMATION DO I NEED TO INCLUDE WHEN I FILL OUT THE FORM?
While most of the
form is easy to understand, we will go through the blocks where you might
need some additional information.
Block 3. If your appeal involves an insurance claim or some issue related
to a VA home loan, enter your VA insurance or
VA loan number here. For most kinds of cases, you will leave this block
blank.
Blocks 4-7. These blocks are for information about the person who is
filing this appeal. If you are a representative filling
out this form for the person filing the appeal, fill in the information
about that person, not yourself. Block 7 can be left
blank if the person filing the appeal is the veteran.
Block 8. It is very important for you to check one, and only one, of the
boxes in block 8. This lets us know whether or
not you want an opportunity to appear personally before one or more
members of the BVA to give them information about
your case, and, if so, where you want to appear. If you do not check one
of the boxes, BVA will assume that you DO NOT
want a BVA hearing.
If you ask for a hearing, you and your representative (if you have one)
can tell us why you think the BVA should act
favorably on your appeal (present argument). You can also tell us about
the facts behind your claim and you can bring
others (witnesses) to the hearing who have information to give the BVA
about your case. At your option, you can submit
more evidence at a hearing requested on this form. If you do ask for a
hearing, it can be very helpful to have a
representative assist you at the hearing.
Here is specific information about each of the check boxes in block 8.
Box A: You may feel that you have already sent VA everything the BVA will
need to decide your case. It is not
necessary for you to have a hearing for BVA to decide your appeal. Check
this box if you decide that you do not
want a hearing. If you check this box, do not check any of the other boxes
in block 8.
Boxes B and C: Check box B or box C if you want to appear in person before
a member, or members, of the BVA
to present your case. We have provided two different boxes because you can
have your BVA hearing in one
of two different places. You can have your hearing at the BVA’s offices
in Washington, DC, or you can ask for
a BVA hearing at your local VA office. In making your decision, you should
know that VA cannot pay any expenses
you (or your representative or witnesses) incur in connection with
attending a hearing. Having your BVA hearing at
your local VA office is usually less expensive for you, because you won’
t have as much expense for travel for
yourself, your witnesses, and your representative. On the other hand, it
sometimes takes longer to get your case
added to the calendar for BVA hearings at local VA offices because BVA
members conduct hearings in the field
only during special trips. You can check with your local VA office to get
an estimate of how long it may be before
your case could be scheduled for a BVA hearing there.
Note: The BVA has initiated a new program for conducting hearings
electronically. This permits BVA member(s) sitting in
Washington, DC, to hold a hearing with you at your local VA office. Each
hears the other through teleconferencing, or hears and
sees the other through videoconferencing. We have not provided a check box
for this kind of hearing, because this new kind of
hearing is only available at a few VA Regional Offices. If you are
interested in this kind of hearing, contact your local VA office to
see if it is available in your area and inquire about procedures
HEARING OFFICER HEARINGS: A hearing before a local VA hearing officer,
instead of before a member of the BVA, is
not a BVA hearing. You can request a local hearing officer hearing by
writing directly to the regional office. DO NOT use
this form to request that kind of hearing. If you do, it will delay your
appeal. You should also know that requesting a
hearing before a local VA hearing officer does not extend the time for
filing this form.
Block 9. Save what you want to tell us about why you are appealing for the
next block. This is the block where you tell
us exactly what you are appealing. You do this by identifying the "issues"
you are appealing. Your local VA office has
tried to accurately identify the issues and has listed them on the SOC and
any SSOC it sent you.
If you think that your local VA office has correctly identified the issues
you are appealing and, after reading the SOC and
any SSOC you received, you still want to appeal its decisions on all those
issues, check the first box in block 9. Do not
check the second box if you check the first box.
4


Check the second check box in block 9 if you only want to continue your
appeal on some of the issues listed on the SOC
and any SSOC you received. List the specific issues you want to appeal in
the space under the second box. While you
should not use this form to file a new claim or to appeal new issues for
the first time, you can also use this space to call
the BVA’s attention to issues, if any, you told your local VA office in
your Notice of Disagreement you wanted to appeal
that are not included in the SOC or a SSOC. If you want to file a new
claim, or appeal new issues (file a new Notice of
Disagreement), do that in separate correspondence.
Block 10. Use this block to tell us why you disagree with the decision
made by your local VA office. Tie your arguments
to the issues you identified in block 9. Tell us what facts you think VA
got wrong and/or how you think VA misapplied
the law in your case. Try to be specific. If you are appealing a rating
percentage your local VA office assigned for one
or more of your service-connected disabilities, tell us for each service-
connected disability rating you have appealed what
rating would satisfy your appeal (The SOC, or SSOC, includes information
about what disability percentages can be
assigned for each disability under VA’s "Rating Schedule.") You may want
to refer to the specific items of evidence that
you feel support your appeal, but you do not have to describe all of the
evidence you have submitted. The BVA will have
your complete file when it considers your case. You should not attach
copies of things you have already sent to VA.
If you need more space to complete block 10, you can continue it on the
back of the form and/or you can attach sheets of
paper to the form. If you want to complete this part of the form using a
computer word-processor, you may do so. Just
attach the sheets from your printer to the form and write "see attachment"
in block 10.
Block 11. This form can be signed and filed by either the person appealing
the local VA decision, or by his or her
representative. Sign the form in block 11 if you are the person appealing,
or if you are a guardian or other properly
appointed fiduciary filing this appeal for someone else. In cases where an
incompetent person has no fiduciary, or the
fiduciary has not acted, that person’s "next friend," such as a family
member, can sign and file this form. If the
representative is filing this form, this block can be left blank.
Regardless of who signs the form, we encourage you
to have your representative check it over before it is filed. Place the
date you sign in block 12.
Block 13. If you are a representative filing this form for the appellant,
sign here. Otherwise, leave this block blank.
If you are an accredited representative of a veterans’ service
organization (VSO), also insert the name of the VSO in this
block. Note that signing this form will not serve to appoint you as the
appellant’s representative. Contact your local VA
office if you need information on appointment. Place the date you sign in
block 14.
7. WHERE DO I FILE THE FORM ONCE I HAVE COMPLETED IT? When you have
completed the form, signed and dated
it, send it to the VA office that has your records. Unless you have
recently moved outside the area that it serves, this is the office
whose address is at the top of the letter VA sent you with the SOC.
8. OTHER SOURCES OF INFORMATION: You can get information about the VA
appeal process written in informal language
by asking your local VA office for a copy of a pamphlet called "
Understanding the Appeal Process." For more detailed technical
information about the VA appeal process, see the BVA’s Rules of Practice.
You will find them in Part 20 of Title 38 of the Code of
Federal Regulations (C.F.R.). Many local public libraries have the C.F.R.,
or the library staff may be able to tell you where you can
locate a copy. If you have a representative, your representative may have
a copy of the C.F.R. A great deal of information is
available on the Internet at "http://www.va.gov." (Do not include the
quotation marks or the final period when typing in the Internet
address.)
9. SPECIAL NOTE FOR ATTORNEYS AND VA ACCREDITED AGENTS. There are
statutory and regulatory restrictions on
the payment of your fees and expenses and requirements for filing copies
of your fee agreement with your client with VA.
See 38 U.S.C. 5904 and 38 C.F.R. 20.609-.610.
NOTE: Please separate these instructions from the form at the perforation
before you file the form with VA. We suggest that you
keep these instructions with your other papers about your appeal for
future reference.
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CONTINUATION SHEET FOR ITEM 10
(Attach additional sheets, if necessary)
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