United States Court of Appeals
for the Federal Circuit
__________________________
CARMEN RIVERA
(SUBSTITUTED FOR ROBERTO V. ORTIZ),
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7097
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 06-932, Judge Alan G.
Lance, Sr.
___________________________
Decided: August 19, 2011
___________________________
OMAR A. KHAN, Wilmer Cutler Pickering Hale and
Dorr, LLP, of New York, New York, argued for claimant-
appellant. Of counsel were ADRIEL I. CEPEDA DERIEUX,
CLARION JOHNSON and SAVERINO MERCADANTE. Of coun-
sel on the brief were MARGARET C. BARTLEY and E.
CARSON LANGE, National Veterans Legal Services Pro-
gram, of Washington, DC.
RIVERA v. DVA 2
MARTIN F. HOCKEY, JR., Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, argued for
respondent-appellee. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and TODD M. HUGHES, Deputy Director. Of
counsel on the brief were MICHAEL J. TIMINSKI, Deputy
Assistant General, and MARTIN S. SENDEK, Attorney,
United States Department of Veterans Affairs, of Wash-
ington, DC.
MARK R. LIPPMAN, The Veterans Law Group, of La
Jolla, California, for amicus curiae The Federal Circuit
Bar Association.
__________________________
Before BRYSON, DYK, and O’MALLEY, Circuit Judges.
BRYSON, Circuit Judge.
I
Appellant Carmen Rivera is the widow of Army vet-
eran Roberto V. Ortiz. In December of 1971, Mr. Ortiz
filed a claim for benefits for a service-connected disability
that he characterized as a “nervous condition” and “recur-
rent headaches.” After obtaining a psychiatric evaluation,
the Veterans Administration regional office rejected Mr.
Ortiz’s claim in 1972. The regional office concluded that
his “nervous condition” was not service connected and
stated that a “personality disorder” is “not a disability
under the law.” Mr. Ortiz did not appeal that determina-
tion, and that decision became final.
In 1979, Mr. Ortiz sought to reopen his disallowed
claim. He supported his request with a psychiatric
evaluation made by a private physician. When the re-
3 RIVERA v. DVA
gional office refused to reopen his 1971 claim, Mr. Ortiz
filed a notice of disagreement. The regional office pro-
vided him with a statement of the case, which identified
the single issue in the case as the “sufficiency of evidence
to reopen claim for service connection for nervous condi-
tion” and stated that the 1979 psychiatric evaluation was
insufficient to warrant reopening because it was “solely
cumulative or repetitious in character” to the evidence
already in the record and therefore was not new and
material evidence that would justify reopening the 1971
claim.
Mr. Ortiz took steps to appeal that decision to the
Board of Veterans’ Appeals. At the outset, there was
some confusion regarding what documents Mr. Ortiz had
submitted in support of his appeal. In March of 1980, Mr.
Ortiz wrote to the agency asking about the status of his
appeal of his request for service connection for his nerv-
ous condition. The following month, the regional office
sent Mr. Ortiz a letter instructing him that if he wished
to “reactivate [his] appeal,” he should submit a copy of VA
Form 1-9, a standard agency form that includes instruc-
tions and questions that are relevant to perfecting an
appeal to the Board. Mr. Ortiz responded by letter in
May of that same year. He explained that he had already
sent the agency a completed copy of VA Form 1-9:
I just received a letter on 23 April of 1980, relative
to my claim of the case, for the compensation for
my nervous condition. The form was sent out in
November of 1979, from here, the Veterans at
Ponce. . . . Please search the records because no
action has yet been taken. I hope that you can
make an evaluation, since I do not see any reason
why you would not want to do it, since I have all
the rights. I was 8 years waiting. I hope you will
RIVERA v. DVA 4
give me an appointment since I feel very sick and
the treatment at Mayaguez consists only of pills
and nothing else.
The regional office again sent Mr. Ortiz a letter in-
structing him to file VA Form 1-9. That letter, dated
June of 1980, advised Mr. Ortiz that no further action
would be taken on his appeal unless he submitted the
completed form within 30 days. Mr. Ortiz did not respond
to that letter, and the Board did not take any further
steps to address his appeal.
In 1994, Mr. Ortiz again sought to reopen his claim.
This time, following lengthy proceedings, the regional
office granted him service connection for a bipolar disor-
der with an effective date of July 8, 1994. Mr. Ortiz
disputed the assigned effective date; he contended that
the effective date for his benefits should be 1979, because
the Board had improperly failed to process his 1979
appeal, which he contended was still pending in appellate
status. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed.
Cir. 2009). In a 2005 decision the Board adjusted his
effective date slightly, but rejected his “pending claim”
argument on the ground that he had failed to file a VA
Form 1-9 or its equivalent, setting out allegations of error
of fact or law, within one year of the regional office’s
September 1979 decision.
Mr. Ortiz appealed the Board’s decision to the Court
of Appeals for Veterans Claims (“the Veterans Court”). In
a single-judge decision dated July 28, 2008, the court
concluded that Mr. Ortiz’s submissions “did no more than
identify his claim,” i.e., his request for service-connected
disability benefits, and therefore did not satisfy the
statutory requirement that he identify particular factual
or legal errors in the regional office’s decision.
5 RIVERA v. DVA
On rehearing en banc, the Veterans Court upheld the
Board’s decision by a divided vote. Analyzing the statute
that sets forth the procedures governing appeals to the
Board, the court noted that since its enactment in 1962,
the statute has required a claimant’s formal appeal to “set
out specific allegations of error of fact or law, such allega-
tions related to the specific items in the statement of the
case.” 38 U.S.C. § 7105(d)(3). The court explained that
the veteran’s substantive appeal must expand upon his
initial statement of disagreement with the regional of-
fice’s decision and set forth, “however inartfully—a par-
ticular theory of error for the Board to decide.” The court
stated that although Mr. Ortiz’s 1980 letter had identified
his claim of service connection for a nervous condition and
had made clear that he “was contesting whether new and
material evidence had been submitted to reopen the prior
denial of that claim,” that was not sufficient. Because Mr.
Ortiz’s letter had “asserted no reason or theory why the
[statement of the case] was incorrect” and had “failed to
even state a rough or inarticulate allegation of error,” the
court concluded that the Board had properly treated the
1979 appeal as having been abandoned.
The dissenting judges noted that Mr. Ortiz’s letters
were sent to the agency “shortly after he received the
[statement of the case] that addressed only one issue—the
failure, as determined by the [regional office] to submit
new and material evidence—making it readily under-
standable what Mr. Ortiz was contesting.” In the view of
the dissenting judges, Mr. Ortiz’s act of “simply appealing
the [regional office’s] determination that he had not
submitted new and material evidence is sufficient issue
identification” for his administrative appeal.
Mr. Ortiz died while the case was pending before the
Veterans Court. Following the entry of judgment in the
RIVERA v. DVA 6
Veterans Court, Ms. Rivera moved to be substituted on
her husband’s claim. Because the time for filing an
appeal was approaching, she filed a notice of appeal to
this court before the Veterans Court had acted on her
motion. The Veterans Court then denied the motion on
the ground that the notice of appeal had transferred
exclusive jurisdiction over the matter to this court. Ms.
Rivera argues that the notice of appeal did not divest the
Veterans Court of authority to enter an order substituting
her on her husband’s claim, but in the alternative, she
moved this court to hold that she should be substituted on
Mr. Ortiz’s claim. We granted Ms. Rivera’s motion with-
out prejudice to the government’s right to object to the
substitution, but the government has raised no objection
to the substitution order in its brief.
II
The statute governing appeals to the Board of Veter-
ans’ Appeals that was in effect in 1980, 38 U.S.C.
§ 4005(d)(3) (1980), is nearly identical to the statute that
is in force today, although it has been recodified as 38
U.S.C. § 7105(d)(3). The statute stated then, and states
now, that the claimant’s appeal “should set out specific
allegations of error of fact or law, such allegations related
to specific items in the statement of the case.” It adds
that the Board “may dismiss any appeal which fails to
allege specific error of fact or law in the determination
being appealed.” 38 U.S.C. § 4005(d)(5) (1976), now
codified as 38 U.S.C. § 7105(d)(5).
The appeal process requires a claimant to make two
filings in response to a decision by a regional office with
which the claimant disagrees. First, the claimant must
file a notice of disagreement, which need only express a
“desire for review” of the regional office’s decision. 38
7 RIVERA v. DVA
C.F.R. § 19.113 (1980). In response, the regional office
prepares a “statement of the case” explaining its decision
on the claim. To trigger review by the Board, the claim-
ant is required to file an appeal, identifying the error or
errors committed by the regional office.
The Veterans Court acknowledged that the Depart-
ment of Veterans Affairs (“DVA”), both at the time of Mr.
Ortiz’s 1980 appeal and now, has operated under a duty
to read the documents that a claimant files in support of
his appeal liberally and sympathetically in deciding if the
claimant has sufficiently alleged an error of fact or law.
38 C.F.R. § 19.116 (1980) (obligation to construe filing
liberally); see Comer v. Peake, 552 F.3d 1362, 1368 (Fed.
Cir. 2009) (same, under current regulation). Moreover,
we have held that the Board is required to address all
issues reasonably raised on appeal, even if the issue
might not be directly raised in the veteran’s appellate
filings when read in isolation. Robinson v. Shinseki, 557
F.3d 1355, 1361 (Fed. Cir. 2009); Comer, 552 F.3d at 1368
(DVA obliged to consider entitlement to TDIU benefits,
even when not specifically raised in the formal appeal, if
the record contains “persuasive and pervasive evidence” of
unemployability).
While acknowledging the liberal standard that is to be
applied to the construction of veterans’ submissions, the
Veterans Court interpreted section 7105(d)(3) to require
an appellant to present “a particular theory of error for
the Board to decide” and to “explain why the [statement of
the case] was in error.” Mr. Ortiz’s 1980 letter to the
agency failed to satisfy that standard, according to the
Veterans Court, because “it does not dispute any finding
of fact made by the [regional office]” and merely reflects
his dissatisfaction with the decision against him.
RIVERA v. DVA 8
The Veterans Court based its construction of section
7105(d)(3) in significant part on its understanding of the
legislative history leading to the enactment of that provi-
sion. The court noted that in 1962, Congress enacted the
law that “required [the] VA for the first time to fully
explain its decisions through a new procedure called the
Statement of the Case.” Act of Sept. 19, 1962, Pub. L. No.
87-666, 76 Stat. 553 (1962). The court added that the Act
“balanced this new disclosure rule with a requirement
that claimants respond to the [statement of the case] with
a Substantive Appeal that must clearly identify the
benefits sought and ‘should set out specific allegations of
error of fact or law . . . .’”
In fact, the requirement that claimants set out spe-
cific allegations of error in their substantive appeals was
not adopted to balance the agency’s obligation to issue a
statement of the case, but was of much earlier vintage. In
1933, Congress authorized the President to create what is
now the Board of Veterans’ Appeals. Independent Offices
Appropriation Act, 1934, Pub. L. No. 73-78, 48 Stat. 283,
309 (1933). The Board was created later that same year
by executive order. Exec. Order No. 6230, pt. 2, § 1
(1933). Language similar to the language at issue in this
case first appeared in that 1933 order: “Each application
for review on appeal should contain specific assignments
of the alleged mistake of fact or error of law in the adjudi-
cation of said claim, and any application for review on
appeal insufficient in this respect may be dismissed.” Id.
§ 7. But it was not until 1962 that Congress required the
regional office to prepare the statement of the case. The
statement of the case was intended to summarize the
evidence, identify the applicable law, and explain the
reasons for the regional office’s decision. 76 Stat. at 553.
Congress believed that veterans often lacked the informa-
tion necessary to pursue an appeal to the Board, and it
9 RIVERA v. DVA
intended the statement of the case to assist the veterans
in framing their further submissions and the Board in
resolving appeals. See S. Rep. No. 87-1843, at 2 (1962)
(“This bill will place the veteran or his survivor in a better
position to develop new evidence available and to fully
prepare and present his appeal. Moreover, the issue
should be more clearly delineated which should facilitate
appellate procedures in many cases.”).
Accordingly, before 1962 veterans were required to
identify specific errors of fact or law for the Board to
review, even though they did not have the benefit of the
agency’s statement of the case explaining the reason for
the regional office’s decision. Because the pleading re-
quirement was neither imposed for the first time nor
amended as part of the 1962 legislation, it appears that
Congress did not intend to “balance” the obligations of the
agency and the obligations of the claimant by requiring
the veteran to offer, as the Veterans Court stated, “a
particular theory of error.” To the contrary, with the
statement of the case procedure in place, the Board could
identify the issues on appeal with reference to the state-
ment of the case and did not have to rely exclusively on
the veteran’s appeal to frame the issues.
Section 7105(d)(3) does not prescribe a particular for-
mat for the veteran’s appeal or a particular degree of
specificity that must be provided. If the regional office
addresses, for example, multiple claims in the same
decision, it may be reasonable to expect the veteran to
specify the particular denied claim that he seeks to ap-
peal. On the other hand, less specificity is necessary
when the regional office’s decision turns on only a single
issue and the nature of the claimed error with respect to
that issue is obvious from the decision itself. In fact,
when the regional office decides only one issue and refer-
RIVERA v. DVA 10
ences only one issue in the statement of the case, the
veteran’s expression of a desire to appeal from the re-
gional office’s decision effectively identifies the issue to be
decided by the Board.
In its 1979 decision, the regional office decided a sin-
gle issue: that Mr. Ortiz’s newly submitted evidence was
not sufficient to warrant reopening his previously disal-
lowed claim. The statement of the case identified the sole
issue as the “sufficiency of the evidence to reopen claim
for service connection for nervous condition,” and it ex-
plained the regional office’s decision simply by saying that
Mr. Ortiz’s evidence was “solely cumulative or repetitious
in character” and failed to establish that his nervous
condition was incurred or aggravated in service. In such
a case, in which the sole issue on appeal is the factual
question of the sufficiency of the veteran’s evidence to
reopen his claim, all that is required is that the veteran
make clear that he disagrees with the regional office’s
conclusion that he failed to offer new and material evi-
dence.
The Veterans Court acknowledged that Mr. Ortiz’s
1980 correspondence made it clear that he was “contest-
ing whether new and material evidence had been submit-
ted to reopen the prior denial of that claim.” The court
also stated that it would have been sufficient if Mr. Ortiz
had stated in his appeal “that the [regional office] erred in
its interpretation of the new evidence it discussed.”
Comparing what the court regarded Mr. Ortiz to have
made clear in his correspondence and what the court
considered to be necessary to satisfy the statutory stan-
dard, it appears that the court interpreted the statute to
require an explicit statement of what was conveyed by
clear implication in his correspondence. In light of the
Board’s obligations to read veterans’ submissions liberally
11 RIVERA v. DVA
and to consider the full context within which those sub-
missions are made, we conclude that section 7105(d)(3)
does not impose such a requirement, at least in the con-
text of a case involving the single factual question of the
sufficiency of the veteran’s evidence to reopen a claim.
Under these circumstances, since there was only a
single issue identified in the statement of the case, Mr.
Ortiz’s 1980 letters to the Veterans Administration were
sufficient to identify the issue on appeal and to satisfy the
statutory standard. Where, as in this case, the underly-
ing facts are undisputed, it is within our jurisdiction to
decide the ultimate legal question, i.e., whether Mr. Ortiz
adequately identified the error he wished the Board to
correct. See Szemraj v. Principi, 357 F.3d 1370, 1375
(Fed. Cir. 2004).
Costs to Ms. Rivera.
REVERSED