**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 00-1037

[Rafael A. Gomez, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

On Appeal from the Board of Veterans\' Appeals

(Argued October 29, 2002 Decided December 5, 2003 )

*Ronald L. Smith*, of Washington, D.C., for the appellant.

*Glenn R. Bergmann*, with whom *John H. Thompson*, Acting General
Counsel; *Ron Garvin*, Assistant General Counsel; *Michael A. Leonard*,
Deputy Assistant General Counsel; and *Robert C. Cain, II*, were on the
brief, all of Washington, D.C., for the appellee.

Before KRAMER, *Chief Judge*, and IVERS and STEINBERG, *Judges*.

KRAMER, *Chief Judge*, **filed the opinion of the Court. STEINBERG,
*Judge*, filed a concurring opinion.**

KRAMER, *Chief Judge*: The appellant, through counsel, appeals a
March 31, 2000, Board of Veterans\' Appeals (Board or BVA) decision that
dismissed his appeal to the Board from a VA regional office (RO)
decision that denied several disability compensation claims. Record (R.)
at 3, 5. The Board predicated that dismissal on the ground that the BVA
lacked jurisdiction over the appeal because the appellant had not filed
a properly completed Substantive Appeal to the Board within the
statutory time period. R. at 3-4. The appellant and the Secretary have
filed briefs, and the appellant has filed a reply brief. This appeal is
timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a)
and 7266(a). For the reasons that follow, the Court will reverse the
Board decision and remand the matter.

**I. Background**

The appellant served on active duty from October 1971 to April 1975. R.
at 8. In a January 20, 1996, decision, the RO denied the appellant\'s
claims for service connection for a back disorder, a neck disorder,
obesity, and a right-shoulder condition and awarded service connection
for a left-ankle fracture and assigned a 10% disability rating,
effective November 13, 1995. R. at 26-28. The appellant, in May 1996,
filed through his representative a Notice of Disagreement (NOD) as to
the RO\'s denial of his back, neck, and right-shoulder
service-connection claims and assignment of only a 10% disability rating
for his left‑ankle fracture. R. at 30. Subsequently, the RO granted
service connection for the appellant\'s right-shoulder condition and
assigned a 10% disability rating, effective November 13, 1995. R. at 54
(rating decision codesheet dated September 4, 1996). On September 17,
1996, the RO issued to the appellant a Statement of the Case (SOC) as to
service connection for both his back and neck conditions and increased
ratings for both his service‑connected‑right-shoulder condition and
service‑connected‑left-ankle fracture. R. at 46-54. In the SOC cover
letter, the RO stated that it had \"enclosed VA Form 9, Appeal to the
Board of Veterans\' Appeals \[(Form 9)\], which you may use to complete
your appeal.\" R. at 46.

In October 1996, the appellant filed a Form 9 in which he provided his
name, claim-file number, and address; checked the \"NO\" box that
specified that \"\[*i*\]*f you checked \'NO\' your appeal will be
reviewed on all the evidence now of record*\"; and signed and dated the
form. R. at 56 (handwritten notation reflecting \"copy to BVA
10/9/96\"). On October 30, 1997, the appellant, through his
representative, filed a statement in which he specified that service
connection for his back and neck conditions and increased ratings for
his right-shoulder and left-ankle conditions were the issues on appeal.
R. at 58-60. The statement included arguments that his appeal warranted
allowance under 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.7, 4.40, and 4.59
and that the evidence in his case was at least in equipoise. R. at 59.
Subsequently, on February 24, 1998, the appellant, through his
representative, submitted additional evidence and requested that that
evidence be considered regarding his back-condition claim. R. at 62-64.
In an October 29, 1999, statement filed through his representative, the
appellant identified the issues on appeal as service connection for his
back and neck conditions and increased disability ratings for his
right-shoulder and left-ankle conditions. R. at 67-68. He also
essentially argued that the Board could not rely on its own medical
conclusions regarding whether his symptoms supported a particular
diagnosis for either his back or neck condition or whether those
symptoms were \"acute and transitory,\" but rather the BVA needed
supporting medical evidence for any such conclusions. R. at 68. The
appellant further argued that the Board could not \"selectively rely on
those parts of a doctor\'s statement \[that\] support its conclusions.\"
*Id*.

The RO, on November 26, 1999, notified the appellant that his appeal was
being placed on the BVA docket. R. at 70-71. On December 3, 1999, the
appellant filed through his representative an \"\[i\]nformal \[h\]earing
\[p\]resentation\" as to his four claims. R. at 73-75. In a January 10,
2000, letter, the Board notified the appellant that a timely Substantive
Appeal as to his four claims might not have been filed and that he had
60 days to present written argument, to present additional evidence
relevant to the Board\'s jurisdiction, or to request a hearing to
present oral argument on the question of the timeliness and adequacy of
the appeal. R. at 77‑78.

In the March 31, 2000, decision on appeal, the Board characterized the
claims as service-connection claims for a back disorder, a neck
disorder, and a right-shoulder disorder and a claim for an increased
rating for a left-ankle fracture. R. at 1. The Board implicitly
determined that the appellant *had timely filed a Form 9 but* then
concluded that, because *that Form 9 did not include any allegation of
error*, it was not properly completed as required by 38 C.F.R. § 20.202.
R. at 4. Citing 38 U.S.C. § 7105(d)(5), the Board stated that it may
dismiss an appeal where, in a Substantive Appeal, an appellant fails to
allege specific error of fact or law. *Id*. The Board next noted that,
although the appellant had filed *additional statements that \"might be
construed as a Substantive Appeal of these issues*,\" those statements
*were filed well after the time period* (apparently 60 days based on the
BVA\'s citations) for filing a Substantive Appeal had expired. R. at 4
(citing, inter alia, 38 C.F.R. §§ 20.302(c), 20.305) (emphasis added).
The Board concluded that the appellant was \"*statutorily barred* from
appealing the January 1996 \[RO\] decision\" and that, therefore, the
*Board did \"not have jurisdiction* to consider an appeal from \[that
RO\] decision\" (citing 38 C.F.R. § 20.200 and *Roy v. Brown*,
5 Vet.App. 554, 556 (1993)). R. at 3, 4 (emphasis added). The BVA then
dismissed the appeal. R. at 5.

The appellant appealed to this Court, and oral argument before the
instant panel was heard on October 29, 2002. At that oral argument, the
Court requested that the Secretary, in consultation with the appellant,
file a copy of the Form 9 instructions that were provided to the
appellant in this case and copies of any subsequent versions of Form 9
and related instructions. On November 12, 2002, the Secretary filed a
response that included a copy of the instructions that accompanied the
January 1992 edition of the Form 9 that the RO had sent to the appellant
with the September 17, 1996, SOC. Response Exhibit (Resp. Ex.) 1. The
Secretary also included a copy of a January 1998 edition of Form 9 with
instructions; the 1998 edition of Form 9, as contrasted with the 1992
edition that was sent to and subsequently filed by the appellant, does
not include the \"NO\" box that specified that \"\[*i*\]*f you checked
\'NO\' your appeal will be reviewed on all the evidence now of
record*.\" Resp. Ex. 2; *see* R. at 56 (appellant\'s October 1996 Form
9).

**II. Analysis**

The statutory provision that sets out the elements of an appeal to the
Board provides:

> \(3\) Copies of the \'\'\[SOC\]\'\' prescribed in paragraph (1) of
> this subsection will be submitted to the claimant and to the
> claimant\'s representative, if there is one. The claimant will be
> afforded a period of sixty days from the date the \[SOC\] 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 of error of fact or law, such allegations related to
> specific items in the \[SOC\]. The benefits sought on appeal *must* be
> clearly identified. The agency of original jurisdiction may close the
> case for failure to respond after receipt of the \[SOC\], but
> questions as to timeliness or adequacy of response shall be determined
> by the Board . . . .

38 U.S.C. § 7105(d)(3) (emphasis added). That provision further provides
that \"\[t\]he Board . . . *may dismiss any appeal which fails to allege
specific error of fact or law* in the determination being appealed.\"
38 U.S.C. § 7105(d)(5) (emphasis added).

In his regulations, the Secretary has provided:

> A Substantive Appeal consists of a properly completed . . . Form 9,
> \"Appeal to Board of Veterans\' Appeals,\'\' or correspondence
> containing the necessary information. If the \[SOC\] and any prior
> Supplemental \[SOCs (SSOC)\] addressed several issues, the Substantive
> Appeal must either indicate that the appeal is being perfected as to
> all of those issues or must specifically identify the issues appealed.
> The Substantive Appeal *should* set out specific arguments relating to
> errors of fact or law made by the agency of original jurisdiction in
> reaching the determination, or determinations, being appealed. To the
> extent feasible, the argument *should* be related to specific items in
> the \[SOC\] and any prior \[SSOCs\]. The Board will construe such
> arguments in a liberal manner for purposes of determining whether they
> raise issues on appeal, but the Board *may dismiss any appeal which
> fails to allege specific error of fact or law* in the determination,
> or determinations, being appealed. The Board will not presume that an
> appellant agrees with any statement of fact contained in a\[n SOC\] or
> a\[n SSOC\] which is not specifically contested. Proper completion and
> filing of a Substantive Appeal are the last actions the appellant
> needs to take to perfect an appeal.

38 C.F.R. § 20.202 (2003) (emphasis added).

\"The starting point in interpreting a statute is its language.\" *Good
Samaritan Hosp. v. Shalala*, 508 U.S. 402, 409 (1993). When this Court
reviews de novo the Secretary\'s interpretation of a statute, the first
question is always \"whether Congress has directly spoken to the precise
question at issue.\" *Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc.*, 467 U.S. 837, 842 (1984); *see* 38 U.S.C. § 7261(a)(1)
(scope of review); *Trilles v. West*, 13 Vet.App. 314, 321 (2000) (en
banc). \"If the intent of Congress is clear, that is the end of the
matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.\" *Chevron*, 467 U.S. at
842-43.

With respect to the Board\'s determination that it was required to
dismiss (i.e., that it lacked jurisdiction over) the appellant\'s appeal
because he had failed to allege that specific error of fact or law was
contained in the January 1996 RO decision within the
Substantive‑Appeal‑filing period following the issuance of the September
1996 SOC, the Court concludes that the Board erred. In this regard,
under the plain language of the statute, the section 7105(d)(5) penalty
is expressly permissive, i.e., \"may dismiss.\" 38 U.S.C. § 7105(d)(5).
Further, the Secretary, in accordance with *Chevron*, *supra*, has
implemented that plain language in his regulation. *See* 38 C.F.R.
§ 20.202. The Court thus holds that the Board\'s use of a
jurisdictional, i.e., nondiscretionary, analysis was not appropriate.
*See* R. at 4 (Board concluded that, absent timely Substantive Appeal,
appellant was statutorily barred from appealing to Board); 38 U.S.C.
§ 7104(c) (Board bound by VA regulations); 38 C.F.R. § 20.101(a) (2003)
(same); *see also* *Myers v. Principi*, 16 Vet.App. 228, 234 (2002)
(noting that, although \"plain meaning \[of 38 U.S.C. § 4005(e) (now
section 7105(d)(5))\] strongly suggests that a discretionary authority
is granted, the Court need not reach that issue\"). *See generally
Malone v. Gober*, 10 Vet.App. 539, 544 (1997) (discussing care that
Secretary \"may\" provide, as opposed to \"shall\" provide, as being
left to his discretion); *Willis v. Brown*, 6 Vet.App. 433, 435 (1994)
(use of word \"may\" in statute makes action discretionary).

To the extent that the Board may have had discretion under section
7105(d)(5) to dismiss the appellant\'s appeal, any such discretion,
under the plain language of the statute, would not arise until after the
Board determined that the appellant had \"fail\[ed\] to allege specific
error of fact or law in the \[January 1996 RO decision\].\" 38 U.S.C.
§ 7105(d)(5); *see Meakin v. West*, 11 Vet.App. 183, 185-86 (1998). The
Court thus concludes that, in this case, because the appellant was not
required to make any such allegations, he did not \"fail\[\] to allege\"
and, therefore, the Board did not possess any such discretion to dismiss
the appellant\'s appeal. In this regard, VA utilized a Form 9 that
specifically indicated that, \"\[i\]f \[the appellant\] checked \[the\]
\'NO\' \[box, his\] appeal w\[ould\] be *reviewed* on all the evidence
\[then\] of record,\" i.e., the appellant did not need to take any
further action (after checking the \"NO\" box) in order to obtain a
Board decision on his appeal. R. at 56 (emphasis added). Further, the
appellant, within the statutory time period (as implicitly conceded by
the BVA (*see* R. at 4)), checked that \"NO\" box and submitted the
VA-provided form to the RO, which apparently immediately forwarded a
copy of the Form 9 to the BVA. *See id*. In addition, the Board
acknowledged (*see* R. at 4) that the appellant subsequently presented,
in statements submitted by his representative \"in \[his a\]ppealed
\[c\]ase\" (R. at 58-59, 67-68), arguments as to errors of fact or law
in the January 1996 RO decision. *See EF v. Derwinski*, 1 Vet.App. 324,
326 (1991) (Board has duty to review all \"issues raised in all
documents . . . submitted prior to the BVA decision\"). It appears,
therefore, that it was VA\'s own words, i.e., the language of the \"NO\"
box on the Form 9, that may have led the appellant not to present those
arguments at an earlier time. *Cf*. *Irwin v. Dep\'t of Veterans
Affairs*, 498 U.S. 89, 96 (1990) (stating, as to statutory filing
deadlines, that tolling of such deadlines may be available \"where the
claimant has been induced or tricked by his adversary\'s misconduct into
allowing the filing deadline to pass\"); *Bailey v. West*, 160 F.3d
1360, 1361, 1365 (Fed. Cir. 1998) (en banc) (applying tolling in
veterans benefits context where RO employee accepted appellant\'s signed
form to appeal Board decision and apparently told him that, inter alia,
\"she would take care of \[his appeal\]\"). *But cf. Cummings v. West*,
136 F.3d 1468, 1472-74 (Fed. Cir. 1998) (holding that language utilized
in Appeals Notice accompanying Board decision satisfactorily explained
how and when to pursue BVA reconsideration and to appeal to this Court;
also recognizing that portion of such notice might be confusing). Such
language is particularly significant because the VA claims‑adjudication
process is a nonadversarial, proclaimant system in which claimants often
lack representation. *See EF*, *supra*.

Given these circumstances, the Court holds that VA waived any additional
pleading requirements on the part of the appellant. *See Beyrle v.
Brown*, 9 Vet.App. 24, 28 (1996) (Court concluded that Board had waived
filing of Form 9 where, although there was no evidence of record that
appellant had filed Form 9, BVA had proceeded to adjudicate appellant\'s
claims on merits). Based on this record, a determination to the contrary
would raise serious fair process issues. *See* *Austin v. Brown*,
6 Vet.App. 547, 551-52 (1994); *Thurber v. Brown*, 5 Vet.App. 119, 123
(1993). However, given the Court\'s holdings in this case, we need not
address any such issues.

Hence, the Court holds that the appellant timely filed a Substantive
Appeal as to the January 1996 RO decision and that the Board, therefore,
possessed jurisdiction over his appeal. Accordingly, the Court will
reverse the Board determination to the contrary and, because the BVA
lacked discretion to dismiss the appellant\'s appeal, will remand the
appellant\'s claims for adjudication on the merits.

As to the requirement in section 7105(d) that an appellant identify the
benefits sought, the Court notes that it generally would remand such a
case to the Board for the BVA to address that requirement in the first
instance. However, in this case, we need not do so because, as explained
above, the Form 9 that the appellant timely filed specified that he did
not have to do anything further to obtain a Board decision in his
appeal, as long as he checked the \"NO\" box, which he did. *See* R. at
56. In this regard, the Court notes that that \"NO\" box no longer
appears to be a part of Form 9. *Compare* R. at 56 (appellant\'s October
1996 Form 9 (Jan. 1992 edition)), *with* Resp. Ex. 2 (Jan. 1998 edition
of Form 9).

**III. Conclusion**

Based upon the foregoing analysis, the record on appeal, the parties\'
pleadings, and oral argument, the March 31, 2000, Board decision is
REVERSED and the matter is REMANDED for proceedings consistent with this
opinion. On remand, the appellant is free to submit additional evidence
and argument in accordance with *Kutscherousky v. West*, 12 Vet.App.
369, 372-73 (1999) (per curiam order). *See Kay v. Principi*,
**16 Vet.App. 529, 534 (2002) (stating, in case where Court remanded
claim and declined to address appellant\'s additional arguments as to
BVA error, that, on remand, appellant is free to raise such arguments to
Board and Board must address those arguments).** The Board shall proceed
expeditiously, in accordance with section 302 of the Veterans\' Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645,
4658 (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide
for \"expeditious treatment\" of claims remanded by Board or Court).

STEINBERG, *Judge*, concurring: Although I join in the Court\'s opinion,
I write separately to address the \"should/must\" dichotomy in 38 U.S.C.
§ 7105(d)(3) and the language in section 7105(d)(3) and (d)(5) regarding
the submission by a claimant of specific allegations of error of fact or
law. These were the principal issues on which the October 29, 2002, oral
argument focused.

**I. Requirements for Filing Appeal to the Board of Veterans\' Appeals**

Section 7105(d)(3) provides in pertinent part:

> The claimant will be afforded a period of sixty days from the date the
> \[S\]tatement of the \[C\]ase \[(SOC)\] 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 of error of fact or law, such allegations related
> to specific items in the \[SOC\]. The benefits sought on ***appeal
> must*** be clearly identified.

38 U.S.C. § 7105(d)(3) (emphasis added). Section 7105(d)(5) provides:
\"The Board of Veterans\' Appeals \[(Board or BVA)\] ***may dismiss any
appeal*** which fails to allege specific error of fact or law in the
determination being appealed.\" 38 U.S.C. § 7105(d)(5) (emphasis added).
VA regulation § 20.202 contains provisions derived from section
7105(d)(3) and (5) as follows:

> If the \[SOC\] and any prior Supplemental \[SOCs\] addressed several
> issues, the Substantive Appeal ***must*** either indicate that the
> appeal is being perfected as to all of those issues or ***must***
> specifically identify the issues appealed. The Substantive Appeal
> ***should*** set out specific arguments relating to errors of fact or
> law made by the agency of original jurisdiction \[(AOJ)\] in reaching
> the determination, or determinations, being appealed. . . . \[T\]he
> Board ***may*** dismiss any appeal which fails to allege specific
> error of fact or law in the determination, or determinations, being
> appealed.

38 C.F.R. § 20.202 (2003) (emphasis added).

***A. Interpreting the Statute***

\"\'The starting point in interpreting a statute is its language.\'\"
*Lee (Raymond) v. West*, 13 Vet.App. 388, 394 (2000) (quoting *Good
Samaritan Hosp. v. Shalala*, 508 U.S. 402, 409 (1993)). As this Court
explained in *Lee*:

> The \"plain meaning \[of a statute\] must be given effect unless a
> \'literal application of \[the\] statute \[or regulation\] will
> produce a result demonstrably at odds with the intention of its
> drafters.\'\" *Gardner v. Derwinski*, 1 Vet.App. 584, 586-87 (1991),
> *aff\'d sub nom. Gardner v. Brown*, 5 F.3d 1456 (Fed. Cir. 1993),
> *aff\'d* \[*sub nom. Brown v. Gardner*\], 513 U.S. 115 . . . (1994);
> *Fagan*\[ *v. West*\], 13 Vet.App. \[48,\] 52 \[(1999)\]; *Curtis*\[
> *v. West*\], 11 Vet.App. \[129,\] 133 \[(1998)\]. \"If the intent of
> Congress is clear, that is the end of the matter\". *Skinner v.
> Brown*, 27 F.3d 1571, 1572 (Fed. Cir. 1994) (quoting *Chevron, U.S.A.,
> Inc. v. Natural Res*\[.\] *Def*\[.\] *Council, Inc.*, 467 U.S. 837,
> 842 . . . (1984)), *aff\'ing* 4 Vet.App. 141 (1993) (mem.).

*Lee (Raymond)*, *supra*. Each \"part or section of a statute should be
construed in connection with every other part or section so as to
produce a harmonious whole.\" *Meeks v. West*, 12 Vet.App. 352, 354
(1999) (internal quotation and citation omitted); *see also Cottle v.
Principi*, 14 Vet.App. 329, 334 (2001); *Talley v. Derwinski*,
2 Vet.App. 282, 286 (1992). Also, as the U.S. Supreme Court stated in
*United States v. Nordic Village*, \"the settled rule \[is\] that a
statute must, if possible, be construed in such fashion that every word
has some operative effect.\" *Nordic Vill*., 503 U.S. 30, 35 (1992);
*see Colautti v. Franklin*, 439 U.S. 379, 392 (1979) (determining that
it is an \"elementary canon of construction that a statute should be
interpreted so as not to render one part inoperative\"). According to
the Supreme Court, where Congress has by statute directly addressed an
issue, the reviewing court \"must give effect to the unambiguously
expressed intent of Congress\", *Chevron*, 467 U.S. at 842‑43; *see
also* *Barnhart v. Walton,* 535 U.S. 212, 217-18 (2002); *Cottle*,
*supra*; however, where a statute involving veterans\' benefits is
ambiguous, \"interpretive doubt is to be resolved in the veteran\'s
favor\", *Brown v. Gardner*, 513 U.S. at 118; *see also Allen (Alfred)
v. Brown*, 7 Vet.App. 439, 448 (1995) (en banc) (applying
interpretive-doubt principle from *Brown v. Gardner*, *supra*, and
ruling in appellant\'s favor on question of statutory interpretation).

***1. Timely Filing of Substantive Appeal:*** It is clear from the plain
language of section 7105(d)(3) that a claimant must file a document by
the end of either (1) the 60-day period following the mailing of an SOC
(60-day post-SOC filing period) or (2) according to Department of
Veterans Affairs (VA) regulation § 20.302(b)(1), the one-year period
following the date of the AOJ (here a VA regional office (RO)) decision
being contested, which is the period during which a Notice of
Disagreement (NOD) must be filed (NOD-filing period) under 38 U.S.C. §
7105(b)(1). 38 C.F.R. § 20.302(b)(1) (2003); *see Morgan (Douglas) v.
Principi*, 16 Vet.App. 20, 24-25 (2002). I will refer to these two
filing periods collectively as the \"Substantive‑Appeal-filing period\".
Although the Substantive Appeal in the present case was filed more than
one year after the date of the January 1996 letter notifying the veteran
about the January 1996 VARO decision and only the 60-day post-SOC filing
period (and not the one-year NOD-filing period) is involved here, the
analysis set forth below applies equally to the two filing periods.

***2. Specific Allegations of Error of Fact or Law:*** The
\"should/must\" language in section 7105(d)(3) regarding specific
allegations of error of fact or law does not, ***by itself***, contain
ambiguity; in light of the plain meaning of these two words, it is
unreasonable to read \"should\" as meaning \"must\" when the next
sentence includes the word \"must\". 38 U.S.C. § 7105(d)(3); *see
Black\'s Law Dictionary* 1019 (6th ed. 1990) (defining \"must\" as
\"\[it\] is primarily of mandatory effect, . . . ; and in that sense is
used in antithesis to \'may\'\"), *id.* at 1379 (defining \"should\" as
\"ordinarily implying duty or obligation; although usually no more than
an obligation of propriety or expediency, or a moral obligation, thereby
distinguishing it from \'ought\'\"); *Maggitt v. West*, 202 F.3d 1370,
1378 (Fed. Cir. 2000) (noting that \"it is open to question whether
application of an exhaustion requirement is consistent with the
statutory purposes underlying the veterans\[\'\] benefits laws\" and
citing 38 U.S.C. § 7105(d)(3) for proposition that \"veteran \'should,\'
not \'must,\' set out specific allegations of error of fact or law in
his \[S\]ubstantive \[A\]ppeal to the Board\"). However, when read in
conjunction with the \"may dismiss\" language of section 7105(d)(5) --
as noted above, regulation § 20.202 combines these provisions from the
statute -- the meaning of \"should\" in section 7105(d)(3) becomes less
clear. 38 U.S.C. § 7105(d)(3), (5); *see Nordic Vill.*, *Colautti*,
*Cottle*, and *Meeks*, all *supra*. Section 7105(d)(5)\'s \"may
dismiss\" language may be read as suggesting that the \"should\"
provision in section 7105(d)(3) is more mandatory than permissive.

The wording of section 7105(d)(3) and (d)(5) is similarly ambiguous as
to the interpretation of the words \"appeal\" and \"formal appeal\". 38
U.S.C. § 7105(d)(3), (d)(5). It is unclear if a \"formal appeal\", which
equates to the Substantive Appeal referred to in section 7105(a),[^1]
relates only to the filing of a VA Form 9 (or other document requiring
BVA review) or to any document filed during the entire appeal process,
including the NOD and later supplementation of a timely filed VA Form 9.
Regulation § 20.202 refers only to a \"Substantive Appeal\". 38 C.F.R.
§ 20.202. In the instant case, the appellant argues that the \"plain
meaning\" of the word \"appeal\" in the statute refers to the entire
appeal process (Brief (Br.) at 9-10) and that the Board must review the
entire record when determining whether an appellant has submitted
specific allegations of error of fact or law (Br. at 11). The Secretary
asserts that the appellant\'s VA Form 9 cannot be considered a timely
Substantive Appeal because it did not contain specific allegations of
error. Br. at 10.

In *Douglas* *v. Derwinski*, the en banc Court noted:

> **\[N\]owhere do the statutory provisions relating to the claimant\'s
> filing a \"formal appeal\" in order to perfect an appeal to the BVA
> (initiated by the filing of a\[n NOD\] with a\[n RO\] decision,
> followed by a\[n SOC issued\] by a\[n RO\]) provide that only legal
> issues raised in the formal appeal, and evidence pertinent to those
> issues, must be considered by the Board.**

*Douglas*, 2 Vet.App. 435, 439 (1992) (en banc). The Court in *Douglas*
rejected the Secretary\'s argument that the Board is to review only the
issues raised in the VA Form 9 or other Substantive Appeal documents and
pointed out: \"Nowhere does \[§ 20.202\] state that only the issues
raised in the Form \[\]9 appeal must be considered; nor does the
regulation state that the BVA must consider only the evidence pertinent
to the issues raised explicitly in the Form \[\]9 appeal.\" *Ibid.* The
Court emphasized the importance of implementing 38 U.S.C. § 7104(a)[^2]
in the spirit of the proclaimant, informal, and VA nonadversarial
adjudication environment.[^3] *Ibid.* Similarly, the Court in *EF v.
Derwinski* also recognized that the Board must look at the entire record
and not be limited by the content of a VA Form 9. The Court held:

> **In *Myers v. Derwinski*, 1 Vet.App. 127, 129 (1991), this Court
> stated that \"it is the claimant\'s statements on the VA Form \[\]9
> which often frame\[\] the nature of the appeal to the BVA. . . .
> Therefore upon receipt of a VA Form \[\]9, the BVA must review all
> issues which are reasonably raised from a liberal reading of the
> appellant\'s substantive appeal.\" However, there is nothing magical
> about the statements actually on the \[VA Form 9\], given the VA\'s
> non-adversarial process. The VA\'s statutory \"duty to assist\" *must
> extend this liberal reading to include issues raised in all documents
> or oral testimony submitted prior to the BVA decision. ***

***EF*, 1 Vet.App. 324, 326 (1991) (emphasis added).**

**The above cases clearly direct the Board to look beyond the contents
of VA Form 9 (or other Substantive Appeal documents) to other
claims-file documents submitted by a claimant -- such as, here, the
October 1997 Disabled American Veterans Statement of Accredited
Representation filed for the appellant prior to the March 2000 BVA
decision and setting forth the issues on appeal (Record at 58-59) -- in
order to determine the issues that the Board must address. *See Douglas*
and *EF*, both *supra*.** It is axiomatic that if the Board must
consider all such documents in deciding an appeal, then any requirement
that a claimant must allege specific error would be satisfied by the
content of the Substantive Appeal as well as other documents filed
during the entire appeal process up to the time of the Board
decision.[^4] Because VA claimants are often unrepresented at the time
that they file a VA Form 9 and may face great difficulties in preparing
legal and factual analyses within the filing deadlines, permitting
claimants who file a timely VA Form 9 to provide supplementation after
the Substantive-Appeal‑filing period would provide them with a greater
opportunity to prepare legal and factual analyses with the assistance of
an attorney or nonattorney practitioner. Finally, there is nothing in
section 7105(d)(3) or (d)(5) that prohibits supplementation outside of
the Substantive‑Appeal-filing period. *See* 38 U.S.C. § 7105(d)(3),
(d)(5).

For all of the above reasons, I conclude that if there is a
specific-allegation-of-error requirement, then considerations of fair
process[^5] and the proclaimant veterans\' benefits system[^6] dictate
that the Board must review for such specific allegations of error all of
the documents, including a VA Form 9, submitted by the claimant up to
the time of the Board decision.

***3. Dismissal of Appeal:*** I turn next to the question of the
consequences for a claimant who fails to allege specific errors of fact
or law. Section 7105(d) and § 20.202 both provide that the Board \"may
dismiss\" an appeal if a claimant fails to assert allegations of error.
38 U.S.C. § 7105(d); 38 C.F.R. § 20.202. Given the ambiguity as to the
meaning of the statutory administrative-process provisions of section
7105(d), the same fair-process considerations and proclaimant
environment dictate that VA, as the regulator, give notice to the
claimant of how the appeal process works. *Cf. *38 U.S.C. § 5104(a)
(requiring that Secretary must provide notice to claimant and any
representative thereof of decision on benefits claim and \"an
explanation of the procedure for obtaining review of the decision\"); 38
C.F.R. § 3.103(a), (b)(1) (2003) (providing for such notice). It is
unclear from section 7105(d)(5) or § 20.202 under what circumstances, if
any, the Secretary will exercise his discretion to dismiss an appeal.
Moreover, a comparison of the 1992 VA Form 9 with the 1998 VA Form 9 and
their respective instructions shows that certain language that was in
the 1992 VA Form 9 was not contained in the 1998 VA Form 9 or its
instructions. Specifically, the 1998 instructions do not contain the
1992 instructions\' provision that stated: \"Appeals which fail to
allege specific error of fact or law in the determination being appealed
may be dismissed by the BVA.\" This deletion thus removes notice to a VA
claimant that the Secretary may dismiss his or her appeal if the
\"Appeal\[\] . . . fail\[s\]\" to include those specific
allegations.[^7] Because it would run counter to fair-process
considerations and the proclaimant nature of the VA adjudication system
for the Secretary to exercise arbitrarily his discretion to dismiss, the
Secretary must give claimants fair notice by informing them of the
criteria to be used in determining whether to exercise the dismissal
discretion set forth in section 7105(d)(5) and § 20.202.[^8]

**II. Conclusion**

Against this background, I find it inescapable that the ambiguity
regarding the \"should/must\" and the \"appeal/formal appeal\" language
and the specific‑allegations-of-error content provision in section
7105(d)(3) and (d)(5) must be construed in favor of the claimant.
38 U.S.C. § 7105(d)(3), (d)(5); *see Brown v. Gardner*, *supra*;
*Kilpatrick v. Principi*, 327 F.3d 1375, 1385 (Fed. Cir. 2003)
(declining to defer to VA regulation \"that applies the statutory
language restrictively, but instead constru\[ing\] the statute as we
believe Congress clearly intended\" and citing *Brown v. Gardner*,
*supra*). Accordingly, I conclude that if the \"should/must\" language
in section 7105(d)(3) and § 20.202 is construed to require that a VA
claimant make specific allegations of error of fact or law in an RO
decision in order to appeal that decision to the Board, then the
\"appeal/formal appeal\" language must be construed to permit a claimant
who filed a timely VA Form 9 to supplement that VA Form 9 later with
specific allegations of error in any document filed before the Board
makes its decision -- here the BVA decision in March 2000 -- and not be
limited to making the allegations in the Substantive Appeal only. 38
U.S.C. § 7105(d)(3), (d)(5); 38 C.F.R. § 20.202; *see Douglas*, *EF*,
and *Myers*, all *supra*. This conclusion is especially unavoidable
where the Secretary has not in his regulations, *see, e.g.*, 38 C.F.R.
§§ 20.202, 20.302(b), provided any notice to VA claimants as to the
circumstances under which his section 7105(d)(5) discretion to dismiss
an appeal that \"fails to allege \[such\] specific errors\" will be
exercised. 38 U.S.C. § 7105(d)(5). Surely, Congress could not have
intended to permit the Secretary to exercise such a dismissal authority
in an arbitrary and capricious manner.[^9]

[^1]: Regulation § 20.302(b)(1) provides that it is the \"Substantive
    Appeal \[that\] must be filed within 60 days from the date that the
    agency of original jurisdiction \[(AOJ)\] mails the Statement of the
    Case to the appellant, or within the remainder of the 1-year period
    from the date of mailing of the notification of the determination
    being appealed, whichever period ends later.\" 38 C.F.R.
    § 20.302(b)(1) (2003); *see Thompson (Charles) v. Brown*, 8 Vet.App.
    169, 179 (1995) (stating that VA Form 9 is \"also called the
    \'formal appeal\' (38 U.S.C. § 7105(d)(3)) and the \'Substantive
    Appeal\' (38 C.F.R. §§ 20.200, 20.202-20.204\[)\]\").

[^2]: Section 7104(a) of title 38, U.S. Code, provides: \"Decisions of
    the Board \[of Veterans\' Appeals (Board)\] shall be based on the
    entire record in the proceeding and upon consideration of all
    evidence and material of record and applicable provisions of law and
    regulation\". *Cf.* *Disabled Am. Veterans v. Sec\'y of Veterans
    Affairs*, 327 F.3d 1339, 1347 (Fed. Cir. 2003) (construing 38 U.S.C.
    § 7104(a) broadly so as to preclude the Board from considering
    \"additional evidence without having to remand the case to the AOJ
    for initial consideration and without having to obtain the
    appellant\'s waiver\").

[^3]: *See Hodge v. West*, 115 F.3d 1356, 1362 (Fed. Cir. 1998) (stating
    that \"\[t\]his court and the Supreme Court both have long
    recognized that the character of the veterans\' benefits statutes is
    strongly and uniquely pro\[\]claimant\" and describing \"the
    historically non\[\]adversarial system of awarding benefits to
    veterans\"); *Trilles v. West*, 13 Vet.App. 314, 326 (2000) (en
    banc) (describing \"the VA pro\[\]claimant nonadversarial claims
    adjudication process\"); *Littke v. Derwinski*, 1 Vet.App. 90, 91-92
    (1990).

[^4]: *Cf. Scarborough v. Principi*, 536 U.S. 920 (2002) (granting
    petition for writ of certiorari and remanding in light of *Edelman*,
    *infra*), *vacating* 273 F.3d 1087, 1092 (Fed. Cir. 2001)
    (concluding, in attorney-fee context, that, after expiration of
    30-day period for filing Equal Access to Justice Act (EAJA)
    application pursuant to 28 U.S.C. § 2412(d)(1)(B), appellant could
    not amend EAJA application to include statutorily-required
    allegation that Secretary\'s position was not substantially
    justified); *Edelman v. Lynchburg College*, 535 U.S. 106, 112-115
    (2002) (holding that, where statute did not indicate whether
    discrimination charge must be verified \"\'under oath or
    affirmation\'\" when filed, statute was open to interpretation and
    sustaining agency\'s conclusion that verification could be filed
    after timely charge was submitted because that interpretation was
    reasonable).

[^5]: *See generally Austin v. Brown*, 6 Vet.App. 547, 551‑52 (1994)
    (discussing \"considerations of fair process\"); *Thurber v. Brown*,
    5 Vet.App. 119, 123 (1993) (noting \"\'underlying concepts of
    procedural regularity and basic fair play\'\") (quoting *Gonzales v.
    United States*, 348 U.S. 407, 411‑12 (1955)).

[^6]: *See supra* note 3.

[^7]: The 1992 VA Form 9 instruction, although significantly more
    helpful to a claimant than the silence in the 1998 instructions,
    does not specifically require that the allegations of error appear
    in the Substantive Appeal itself; moreover, the 1992 VA Form 9 is
    entitled \"Appeal to Board of Veterans\' Appeals\" and not
    \"Substantive Appeal\" and thus adds to the confusion by perhaps
    implying that the allegations of error must be contained therein.

[^8]: *See* *supra* notes 3 and 4; *cf. supra* note 7, *infra* note 9.

[^9]: *Cf. Scott (Charles) v. Brown*, 7 Vet.App. 184, 189 (1994)
    (discussing Secretary\'s \"\'sole discretion\'\" under 38 C.F.R.
    § 3.109(b) (1993), which states that Notice‑of‑Disagreement-filing
    period \"\'may be extended for good cause shown\'\", and concluding
    that \"\[t\]he exercise of such a discretionary \[extension\]
    authority as to which regulations have been prescribed is subject to
    review by this Court to determine whether the exercise of discretion
    was made \'in accordance with the regulatory guidance or whether the
    decision was made in an arbitrary or capricious manner\'\" under 38
    U.S.C. § 7261(a)(3)(A)) (quoting *Smith (Barbara) v. Derwinski*,
    1 Vet.App. 267, 279 (1991) (discussing Secretary\'s establishment of
    regulations prescribing criteria for exercising his discretion to
    determine whether \"equity and good conscience\" require waiver of
    collection of debts owed VA and reviewing waiver decision based on
    whether discretion was exercised in \"arbitrary of capricious
    manner\", pursuant to 38 U.S.C. § 7261(a)(3)(A))).