Veteranclaims’s Blog

August 2, 2021

Single Judge Application; Bryant v. Wilkie, 33 Vet. App. 43, 48-50 (2020) (Appellants have a right to fair process in the development and adjudication of their claims and appeals before VA);

Designated for electronic publication only
No. 20-1269
Before ALLEN, Judge.
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

ALLEN, Judge: Appellant Cody Dale Smith served the Nation honorably in the U.S. Army
from September 2001 to June 2005, the U.S. Army Reserve from September 2006 to March 2007,
and the U.S. Army National Guard from August 2008 to September 2009.1 In this appeal, which
is timely and over which the Court has jurisdiction,2 he contests an October 29, 2019, Board of
Veterans’ Appeals decision that denied effective dates before December 13, 2017, for serviceconnected
sciatica of the left and right lower extremities and initial disability ratings higher than
10% for service-connected sciatica of the left and right lower extremities.3 Because the Board
failed to ensure compliance with pertinent VA procedures in connection with appellant’s
administrative appeal, we will set aside the October 2019 Board decision and remand the matters
for further development and readjudication.
1 Record (R.) at 1622, 1773, 1886.
2 See 38 U.S.C. §§ 7252(a), 7266(a).
3 R. at 5-15. The Board granted appellant a 10% disability rating effective September 23, 2016, for service-connected
bilateral hearing loss. This is a favorable finding that the Court lacks jurisdiction to review. See Medrano v.
Nicholson, 21 Vet.App. 165, 170 (2007).
As we will explain, we are not able to reach the merits of appellant’s appeal because the
Board failed to ensure compliance with relevant VA procedures concerning the processing of
appellant’s administrative appeal. We begin with the legal context in which we view appellant’s
appeal. Since February 19, 2019, there have been two types of adjudicatory systems for claims
within VA. Those claims that are subject to the legacy appeals system, and those subject to the
Veterans Appeals Improvement and Modernization Act of 2017 (AMA).4 We have made clear that
VA intended these systems to operate concurrently.5 Therefore, in cases in which a VA agency of
original jurisdiction such as a regional office (RO) issued the initial decision that led to an
administrative appeal before February 19, 2019, the legacy appeals system applies, while those
initial decisions issued on or after that date are subject to the AMA process.6 There is but one
exception where a legacy-appeal-claimant can access the AMA process, and that is by opting in to
the AMA system after a Statement of the Case (SOC) is issued under the legacy system.7
The facts necessary for us to decide this appeal, given the legal context, are straightforward
and uncontested. In February 2018, an RO issued the initial rating decision that granted appellant
entitlement to service connection for right and left lower extremity sciatica and assigned a 10%
disability rating for each extremity, effective December 13, 2017.8 In February 2019, appellant
sought to appeal the February 2018 rating decision. He did so by filing two VA forms on the same
day. One was a Notice of Disagreement (NOD) to the Board under the legacy appeals system.9
The other was an NOD seeking direct Board review under the AMA.10 For reasons that are not
clear from the record, VA processed appellant’s appeal based on his AMA NOD, ignoring the
(correctly filed) NOD under the legacy system.11
4 Mattox v. McDonough, __ Vet.App. , , No. 19-5212, 2021 WL 1604717 at *5, *6 (Apr. 26, 2021).
5 Id.
6 Id.
7 Id.
8 R. at 241-48.
9 R. at 35-36.
10 R. at 25.
11 See R. at 5-15 (adjudicating appellant’s claim under the AMA and providing appellate rights under that system). We note that the Secretary appears to accept that both NODs were timely. We proceed on that basis.
Appellant argues that because the Board accepted his AMA NOD and adjudicated his
appeal based on that submission, it was required to comply with the AMA notice requirements
under 38 U.S.C. § 5104. He further argues that because he was not properly notified based on the
AMA-amended version of section 5104, he was effectively prevented from submitting additional
evidence or argument to support his claims. Appellant also asserts that he timely filed his legacy
NOD and raises several arguments on the merits. Although he did not file a motion to dismiss, the
Secretary asserts in his brief that the Board erred when it issued its decision because it lacked
jurisdiction to do so under the AMA. Alternatively, he defends the Board’s decision on the merits.12
At the outset, appellant’s argument asserting that he is entitled to AMA notice fails. As
explained above, appeals originating from an initial decision before February 19, 2019, are subject
to the legacy appeals process. Here, it is undisputed that the initial rating decision forming the
basis of this appeal was issued in February 2018.13 Thus, there is no question that appellant’s appeal
was subject to the legacy system.14 Moreover, it is also undisputed that VA never issued an SOC
in response to appellant’s correctly-filed legacy NOD.15 Therefore appellant did not have the
opportunity to opt into the AMA appeals process through the means Congress provided for legacy
claimants to move out of the legacy system. Because the Court recently held in Mattox that the
AMA does not apply to legacy appeals, appellant’s argument asserting otherwise fails.
But the failure of appellant’s argument based on the notice provisions of AMA-amended
section 5104 doesn’t end the matter. The fact remains that appellant filed an NOD under the legacy
system. The fact that he also filed an NOD under the AMA does not change that reality. There is
a legacy NOD that is left pending and unadjudicated. Under the legacy system, when an appellant
12 There is no need for us to stay this matter pending the Court’s decision in Puckett v. McDonough, U.S. Vet. App.
No. 20-1700, an appeal that was referred to panel on June 8, 2021. In Puckett, the issue concerns whether the Board
has jurisdiction to consider an appeal when a claimant belongs in one system (say the legacy system) but uses the
form for the other adjudicative system (for example one under the AMA) to initiate an appeal. Appellant’s situation
differs from that in Puckett because appellant filed NODs under both the legacy system, which was correct, and the
AMA, which was not. VA simply processed the appeal using the incorrect form even though it had the means to
proceed under the legacy system given the filing of an NOD under the regulations governing legacy appeals. As we
explain, the law is well-established concerning how we deal with VA’s failure to follow applicable regulations
governing the processing of legacy appeals.
13 R. at 241-48; see also Appellant’s Brief (Br.) at 1; Secretary’s Br. at 6.
14 Mattox, No. 19-5212, 2021 WL 1604717 at *7.
15 See Appellant’s Brief (Br.) at 5; Secretary’s Br. at 3.
submits a timely NOD VA is required to issue an SOC to all parties of interest.16 The Board’s
failure to ensure compliance with VA’s procedures for the processing of a legacy appeal prejudiced
appellant as he lost procedural protections in that system, i.e. issuance of an SOC, which would
have provided him the opportunity to submit relevant evidence in support of his claim.17 Moreover,
had an SOC been issued, appellant would have also been able to opt into the AMA process if he
desired to avail himself of the procedural options available to claimants in the context of that new
system.18 Because VA did not issue an SOC in this matter, the Board erred when it issued its
adverse decision and therefore remand is warranted under well-established precedent for the Board
to ensure that VA’s procedures are followed.19
Because the Court is remanding this matter to the Board for readjudication, the Court need
not address any remaining arguments now, and appellant can present them to the Board.20 On
remand, appellant may submit additional evidence and argument and has 90 days to do so from
the date of VA’s post-remand notice.21 The Board must consider any such additional evidence or
argument submitted.22 The Board must also proceed expeditiously.23
16 38 U.S.C. § 7105A(b).
17 38 C.F.R. §§ 19.26 (Action by agency of original jurisdiction on Notice of Disagreement) (2020), 19.29 (Statement
of the Case) (2020), 19.30 (Furnishing the Statement of the Case and instructions for filing a Substantive Appeal)
18 See 38 C.F.R. § 19.30(b).
19 See Manlincon v. West, 12 Vet.App. 238, 240–41 (1999); Tucker v. West, 11 Vet.App. 369, 374 (1998) (holding
that remand is the appropriate remedy where the Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases for its determinations, or where the record is otherwise inadequate); see also Bryant v. Wilkie, 33 Vet. App. 43, 48-50 (2020) (Appellants have a right to fair process in the development and adjudication
of their claims and appeals before VA).
20 Best v. Principi, 15 Vet.App. 18, 20 (2001).
21 Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92 (2018).
22 Kay v. Principi, 16 Vet.App. 529, 534 (2002).
23 38 U.S.C. §§ 5109B, 7112.
After consideration of the parties’ briefs, the governing law, and the record, the Court SETS
ASIDE the October 29, 2019, Board decision and REMANDS this matter for further proceedings
consistent with this decision.
DATED: June 22, 2021
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)

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