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Court Wins

Court Issues Precedential Decision Regarding Board Jurisdiction and Wrong Appeals Forms

Lisa Ioannilli

June 24, 2022

Updated: November 20, 2023


On October 18, 2021, the United States Court of Appeals for Veterans Claims (Court) issued a precedential decision regarding Board of Veterans’ Appeals (Board) jurisdiction and filing the wrong appeal forms.  The Court determined that the Board erred when dismissing the Veteran’s case on jurisdictional grounds as “only Congress may confer or withdraw jurisdiction.”

Case Summary

The Veteran served in the Marine Corps from 1999 to 2001.  In January 2018, he filed for service connection for ankle, foot, and hip conditions secondary to a service-connected knee condition.  The Department of Veterans Affairs (VA) denied his claims in February 2018.

On February 19, 2019, the Veterans Appeal Improvement and Modernization Act of 2017 (AMA), which updated VA’s claim and appeal system, was officially implemented.  The new procedures applied only to decisions dated on or after February 19, 2019, and anything decided before that date fell under the “legacy system”.

That same day, the Veteran submitted the AMA form (VA Form 10182) to appeal VA’s February 2018 rating decision, despite the rating decision occurring under the legacy system.  VA did not issue a Statement of the Case.

In April 2019, the Board of Veterans’ Appeals (Board) informed the Veteran that his appeal was in their evidence submission docket.  However, in November 2019, the Board determined that it did not have jurisdiction over the issue and the Veteran’s claim had to be dismissed since he used the wrong form.

CCK Asserts that Court Should Reverse the Board’s Finding

In October 2021, Chisholm Chisholm & Kilpatrick LTD represented the Veteran before the Court of Appeals for Veterans Claims (Court).  CCK argued that the Board waived the necessity of using Form 21-0958 (i.e., Notice of Disagreement) when it accepted and processed the Veteran’s appeal.  CCK also argued that this issue was “not a jurisdictional hook” and requested that the Court reverse the Board’s finding.

The Supreme Court has previously stated that there is a distinction between “rules affecting jurisdiction and mandatory ‘claims-processing’ provisions that govern the orderly processing of cases but otherwise do not create or withdraw jurisdiction.”  Jurisdictional rules are drastic, as they require complete dismissal of the case, while claims-processing rules are less strict.

Essentially, the Board could not simply cite a lack of jurisdiction and dismiss the appeal, it had to discuss why the dismissal was appropriate under relevant law.  In addition, none of the provisions in 38 US Code § 7105 (i.e., filing of appeal) suggest that Congress intended to limit the Board’s jurisdiction when a claimant uses the incorrect form to file a Notice of Disagreement.

Court Reverses Board’s Finding in Precedential Decision

The Court determined that the Board did have jurisdiction over the Veteran’s case and the Board erred in dismissing his appeal on jurisdictional grounds.  The Court also asserted that this error prevented the Veteran from participating in the adjudicative process.

The Court stated that upon remand, the Board should either hear the Veteran’s appeal or provide a reason using governing law as to why it declines to do so.  The Board must also issue a Statement of the Case regarding the Veteran’s foot, ankle, and hip conditions.

Based on these reasonings, the Court reversed the Board’s finding that it lacks jurisdiction, vacated the November 4, 2019 Board decision, and remanded the case for further adjudication.  For more details on this precedential decision, read the full Court summary.

About the Author

Bio photo of Lisa Ioannilli

Lisa joined CCK in March 2012. Lisa is a Senior Attorney focusing on representing disabled veterans in claims pending before the U.S. Department of Veterans Affairs and the United States Court of Appeals for Veterans Claims.

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