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Strott v. Derwinski

Decided: May 13, 1992.


Appealed from: U.S. Court of Veterans Appeals. Judge Nebeker

Before Archer, Plager, and Rader, Circuit Judges.


PLAGER, Circuit Judge.

Richard M. Strott (Petitioner) appeals from the January 10, 1991 Order of the Court of Veterans Appeals (Veterans Court). The Veterans Court dismissed Petitioner's appeal because a valid Notice of Disagreement had not been filed after November 18, 1988, the threshold date for jurisdiction. This court affirms.


Petitioner served in the United States Army on active duty from July 1959 to July 1962 and from September 1963 to February 1978. On February 6, 1985, he filed a claim for disability benefits for paranoid schizophrenia, which he alleged was service-related. The tortuous Veterans Administration (VA) procedures which petitioner then encountered do not credit to a government agency whose mission it is to protect the interests of veterans. Regrettably, that is not a ground upon which recovery can be premised.

Petitioner's initial claim was rejected in a rating action of September 26, 1985. Petitioner's representative promptly filed a NOD on October 18, 1985. Further negative rating actions ensued on December 3, 1985 and December 30, 1985. A Statement of the Case was prepared on June 2, 1986, and was sent to petitioner. On July 14, 1986, his representative (petitioner's father) filed a Form 1-9 to perfect his appeal. Yet another rating action occurred on January 27, 1987, and a Supplemental Statement of the Case was then issued.

Meanwhile, the Veterans Administration persisted in classifying petitioner as competent despite the fact that the State of Pennsylvania had adJudged him incompetent and had appointed his father as his legal representative. Confusion within the VA resulted in further delay of petitioner's appeal -- on July 11, 1988, the Board belatedly sent the case back to the Regional Office for "additional development" on the related issues of petitioner's competency and the proper identity of petitioner's representative. The Board opined that if petitioner was indeed sane for VA purposes, then he should have signed the forms himself, and his only authorized representative would be the Disabled American Veterans organization.

The Regional Office pondered these instructions, and finally sent a letter to petitioner on January 30, 1989. However, that letter apparently caused some confusion with petitioner's lawyer -- he promptly responded and enclosed a second Form 1-9 signed by the father. On February 24, 1989, the Regional Office wrote to clarify that the Form 1-9 must be signed by the petitioner himself, regardless of the State of Pennsylvania's opinion of his mental condition. On February 28, 1989, the third Form 1-9 was submitted, this time bearing petitioner's own signature, which the VA found to be acceptable. At that point, the appeal which had been initiated almost three and one half years earlier was finally perfected to the satisfaction of the VA.

Petitioner's third 1-9 Form indicated a desire for a personal hearing at the Regional Office, and accordingly a hearing was held on June 5, 1989. This procedure resulted in yet another denial of benefits, dated July 17, 1989. The Board of Veterans Appeals in Washington did not issue its opinion until April 4, 1990; that opinion recounted the evidence in the case and rehashed the record from the June 5, 1989 personal hearing. When petitioner sought to appeal this decision to the Veterans Court, his appeal was dismissed for lack of jurisdiction. Petitioner now appeals that decision of the Veterans Court.



The Veteran's Judicial Review Act of 1988 (Act), 38 U.S.C. §§ 7251 et seq. (West 1991),*fn1 defines the limits of our appellate role in reviewing judgments of the Veterans Court. Pursuant to 38 U.S.C. § 7292(d)(1), we review to the extent presented and necessary to a decision "the validity of a statute or a regulation, or the interpretation of a constitutional or statutory provision or regulation," Livingston v. Derwinski, 959 F.2d 224, at *7 (Fed. Cir. March 17, 1992), under a de novo standard. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). Further, we may set aside any regulations or regulatory interpretations which are procedurally defective or otherwise arbitrary. Id. Since Disposition of the appeal turns on interpretation of statutory and regulatory provisions, we accordingly exercise jurisdiction in this case.

Congress created the Veterans Court in part to provide judicial review of veteran's benefits decisions. Prior to the Act, there existed a statutory bar to such judicial review. 38 U.S.C. § 211 (a) (1988);*fn2 Whitt v. Derwinski, Nos. 89-16, 89-151, 90-38, and 90-122, at *2 (Court of Veteran's Appeals October 12, 1990). However, Congress chose to limit the jurisdiction of the Veterans Court to cases in which a NOD had been filed on or after November 18, 1988. 38 U.S.C. ยง 7251 Note. See Prenzler v. Derwinski, 928 F.2d at 393-94. In so doing, Congress implicitly adopted the definition of a NOD already in place in 38 U.S.C. ...

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