UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 06-0932

ROBERTO V. ORTIZ, APPELLANT,

 V .

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appellant's Motion for Panel Decision

(Argued January 14, 2009 Decided March 3, 2010)

Nancy Lehman, of West Palm Beach, Florida, for the appellant.

Tracy K. Alsup, with whom Paul J. Hutter, General Counsel; and R. Randall Campbell,

Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.

Before GREENE, Chief Judge, and KASOLD, HAGEL, MOORMAN, LANCE, DAVIS, and

SCHOELEN, Judges.

LANCE, Judge, filed the opinion of the Court. GREENE, Chief Judge, and KASOLD,

Judge, filed dissenting opinions.

LANCE, Judge: Veteran Roberto V. Ortiz appeals through counsel an August 9, 2005, Board

of Veterans' Appeals (Board) decision that denied his appeal for an effective date earlier than June

28, 1994, for his service-connected bipolar disorder. In a single-judge memorandum decision issued

on July 28, 2008, the Court affirmed the Board's decision. Mr. Ortiz filed a timely motion for

reconsideration, or, in the alternative, for a panel decision. Based upon this motion, a panel of the

Court heard oral argument, after which the case was called for full-Court consideration. The Court's

July 28, 2008, memorandum decision is withdrawn and this opinion is issued in its place. For the

reasons that follow, the Board's August 9, 2005, decision will be affirmed.
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I. FACTS

Mr. Ortiz served in the U.S. Army from October 1958 to August 1960. The San Juan, Puerto

Rico, regional office (RO) denied a 1971 claim for compensation and pension for a nervous

condition and headaches. Mr. Ortiz did not appeal that RO decision and it became final. On May

29, 1979, Mr. Ortiz again sought benefits for his nervous condition, and submitted evidence in

support of his request. In September 1979, the RO denied his request because the evidence

submitted was deemed insufficient to warrant reopening his claim. Mr. Ortiz filed a timely Notice

of Disagreement (NOD) and, in October 1979, the Secretary issued a Statement of the Case (SOC).

The SOC informed Mr. Ortiz that his claim was denied because the evidence he had submitted did

not constitute "new and material evidence to reopen" his previously disallowed claim. Record (R.)

at 174. The SOC further noted that the evidence submitted was "solely cumulative or repetitive in

character" and it failed to establish that a nervous condition was incurred or aggravated in service.

Id. The cover letter from VA that enclosed the SOC informed Mr. Ortiz that the SOC was being sent

to him so that he could make his best argument to the Board as to why VA's ruling "should be

changed." R. at 171. VA informed Mr. Ortiz that his argument or "Substantive Appeal" should be

set out in the attached VA Form 1-9 and that he should state, in his own words, the benefit he seeks,

the facts in the SOC with which he disagrees, and "any errors you believe we made in applying the

law." Id. 

Several months later, in March 1980, Mr. Ortiz filed a statement in support of claim "[k]indly

requesting [the] status of my claim of appeal to Washington my request service connection nervous

condition." R. at 178. In response thereto, the Secretary sent Mr. Ortiz a letter stating that "you must

submit VA Form 1-9 [Substantive Appeal] to reactivate your appeal." R. at 181. In May 1980, Mr.

Ortiz responded to the Secretary's letter stating that

[t]he form was sent out in November 1979, from here, the Veterans at Ponce. I can't

see the reason why you are sending me the same form 1-98 [sic] Appeal, if it is

already filed up. 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. [S]ince I have all the rights. I was 8 years waiting. I hope you will

give me an appointment since I feel very sick and the treatment at Mayaguez consists

only of pills and nothing else.

R. at 184.
3

In June 1980, the Secretary wrote to Mr. Ortiz stating that he had never received his VA

Form 1-9. This letter also stated that the Secretary was sending Mr. Ortiz a new Form 1-9 for his

completion and signature, and that if the form was not received within 30 days no further action

would be taken on his appeal. The record copy of the letter reflects that it was incorrectly addressed

to "Mr. Roberto Vidal Ordal." R. at 195. It also reflects that a VA Form 1-9 was enclosed with the

letter.

In July 1994, Mr. Ortiz again sought benefits for his nervous condition, and he stated that his

medical evidence was at the VA hospital. The RO reopened his claim, but denied it based upon a

lack of evidence of treatment for his psychosis during service or within the presumptive period

following service. Mr. Ortiz filed an NOD (see R. at 242) and, after an extensive procedural history

resulting in a March 2000 RO decision, he was granted service connection for bipolar disorder and

assigned a 70% disability compensation rating and a rating of total disability based upon individual

unemployability (TDIU), effective July 8, 1994. Mr. Ortiz submitted a statement that disputed the

July 1994 effective date on the grounds that his condition originated in 1965 and that he had filed

a claim for the same benefit in 1971. The RO considered his statement to be an NOD as to his

effective date and issued an SOC in July 2001. In response to the SOC, Mr. Ortiz stated that VA had

failed to process his 1979 Substantive Appeal in response to the October 1979 SOC, and therefore

he requested an earlier effective date for his 100% disability rating. 

Over the ensuing years, Mr. Ortiz was granted an earlier effective date of June 28, 1994, for

reasons not relevant to this appeal, and he continued to seek a still earlier effective date based on his

belief that the Secretary failed to properly process his 1979 claim and appeal of the RO's decision

denying that claim. In the decision we consider here on appeal, the Board affirmed the assigned

effective date of June 28, 1994, for Mr. Ortiz's bipolar disorder. Relevant to this appeal, the Board

concluded that Mr. Ortiz had failed to file a VA Form 1-9, or its equivalent, setting out allegations

of error of fact or law, within one year from the RO's September 1979 decision.

II. ARGUMENTS

Mr. Ortiz argues that he filed a timely Substantive Appeal to the RO's September 1979

decision, but the Board never processed his appeal. He contends that his March 1980 statement in
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support of claim asking about his appeal, and his May 1980 letter informing the Secretary that he

already had filed a VA Form 1-9, constituted a Substantive Appeal because the correspondence

reflected his intent to appeal and was the equivalent of a VA Form 1-9. See Appellant's Brief at 14.

He further argues that his 1979 appeal was pending when he was awarded service connection in

March 2000, and that he should be assigned an effective date based on his pending claim.

The Secretary argues that there is a plausible basis for the Board's denial of an earlier

effective date. The Secretary contends that the correspondence Mr. Ortiz sent to the Secretary did

not contain specific allegations of error of fact or law as required by statute and regulation, and,

therefore, it did not constitute a Substantive Appeal. The Secretary argues that, absent the filing of

a Substantive Appeal, the September 1979 RO decision became final the May 1979 claim and may

not be the basis for an earlier effective date.

III. LAW AND ANALYSIS

A. Standard of Review

Although the Board's assignment of an effective date generally is reviewed under the "clearly

erroneous" standard of review, see Canady v. Nicholson, 20 Vet.App. 393, 398 (2006) ("A Board

determination of the proper effective date is a finding of fact that the Court reviews under the 'clearly

erroneous' standard set forth in 38 U.S.C. § 7261(a)(4)."), in this instance, an earlier effective date

was denied because the Board determined that a Substantive Appeal had not been filed by Mr. Ortiz.

Whether a document constitutes a Substantive Appeal is reviewed de novo. Gibson v. Peake,

22 Vet.App. 11, 15 (2007). Additionally, the Court reviews the Board's interpretations of statutes

and regulations de novo. See 38 U.S.C. § 7261 (Court interprets statutory and regulatory provisions);

Lane v. Principi, 339 F.3d 1331, 1339 (Fed. Cir. 2003) ("[I]nterpretation of a statute or regulation

is a question of law."); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court reviews

"questions of law de novo without any deference to the Board's conclusions of law").

When interpreting a statute or regulation, the "'starting point is its language.'" Otero-Castro

v. Principi, 16 Vet.App. 375, 380 (2002) (quoting Good Samaritan Hosp. v. Shalala, 508 U.S. 402,

409 (1993)); see Black & Decker Corp. v. Comm'r of Internal Revenue, 986 F.2d 60, 65 (4th Cir.

1993) ("Regulations, like statutes, are interpreted according to the canons of construction."). The
5

words of a statute or regulation are to be given their plain meaning. See Tropf v. Nicholson,

20 Vet.App. 317, 321 n.1 (2006) ("[A] statute is ambiguous only when the application of the

ordinary meaning of the words and rules of construction to the plain language of the regulation fails

to answer the question at issue. . . . Without standard word meanings and rules of construction,

neither Congress nor the Secretary can know how to write authorities in a way that conveys their

intent and no practitioner or—more importantly—veteran can rely on a statute or regulation to mean

what it appears to say."); see also Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) ("[W]e

assume 'that the legislative purpose is expressed by the ordinary meaning of the words used.'"

(quoting Richards v. United States, 369 U.S. 1, 9 (1962))); Bell Atl. Tel. Cos. v. FCC, 131 F.3d 1044,

1047 (D.C. Cir. 1997) (stating that statutory construction "may be characterized as a search for the

plain meaning of the statute"); Gardner v. Derwinski, 1 Vet.App. 584, 586 (1991) ("Determining a

statute's plain meaning requires examining the specific language at issue and the overall structure

of the statute."), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed. Cir.1993), aff'd, 513 U.S. 115

(1994).

However, understanding the plain meaning of the statute requires due regard for the context

of the provision at issue and consideration of related provisions. Montclair v. Ramsdell, 107 U.S.

147, 152 (1883) ("It is the duty of the court to give effect, if possible, to every clause and word of

a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of

the meaning of the language it employed."). Furthermore, "even when the plain meaning of the

statutory language in question would resolve the issue before the court, the legislative history should

usually be examined at least 'to determine whether there is a clearly expressed legislative intention

contrary to the statutory language.'" Glaxo Operations U.K. Ltd. v. Quigg, 894 F.2d 392, 396 (Fed.

Cir. 1990) (quoting Madison Galleries, Ltd. v. United States, 870 F.2d 627, 629 (Fed. Cir. 1989)).

B. Statutory Requirements of a Substantive Appeal

In this case, the Court is called upon to interpret the Substantive Appeal provision as it

operated in 1980. Then, as now, the administrative appeal for VA claims began with the filing of

an NOD and was completed with the filing of a Substantive Appeal. See 38 U.S.C. § 4005(a)

(1980); Disabled Am. Veterans v. Sec'y, 327 F.3d 1339, 1342 (Fed. Cir. 2003). Although 38 U.S.C.

§ 4005(d)(3) (1980) is now codified as 38 U.S.C. § 7105(d)(3) (2008) and the language in
When Congress overhauled the appellate process as part of the introduction of judicial review, it made a point 1

of eliminating the presumption of agreement. See 38 U.S.C. § 7105(d)(4) (2009) ("The claimant in any case may not

be presumed to agree with any statement of fact contained in the [S]tatement of the [C]ase to which the claimant does

not specifically express agreement."). However, the Board retains the authority to dismiss any appeal that fails to make

a specific allegation of error. 38 U.S.C. § 7105(d)(5) (2009).

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subsection(d)(3) in both the 1980 and the 2008 statutory provisions is identical, the full statutory

scheme was not the same.

The Substantive Appeal procedure was introduced by Public Law 87-666, § 1 (Sept. 19,

1962), which was captioned "An Act to improve due process in the consideration and final

adjudication of disputed claims for veterans' benefits by providing that the claimant shall be

furnished a brief statement of the facts and law applicable to the case appealed and afforded an

opportunity to reply thereto." The act required VA for the first time to fully explain its decisions

through a new procedure called the Statement of the Case. However, the act balanced this new

disclosure rule with a requirement that claimants respond to the SOC with a Substantive Appeal that

must clearly identify the benefits sought and "should set out specific allegations of error of fact or

law . . . related to specific items in the [S]tatement of the [C]ase." Id. The act further provided that

"[t]he appellant will be presumed to be in agreement with any statement of fact contained in the

[S]tatement of the [C]ase to which no exception is taken" and gave the Board the authority to

"dismiss any appeal which fails to allege specific error of fact or law in the determination being

appealed." Id. Pursuant to this statutory language, the 1979 version of Form 1-9 required specific 1

allegations of error of fact or law.

Based on the language, history, and complete structure of the statute creating the Substantive

Appeal procedure, it is clear that the statute must be interpreted as placing a burden on claimants to

expand upon their initial disagreement with the RO decision by setting forth—however inartfully—a

particular theory of error for the Board to decide. Indeed, the U.S. Court of Appeals for the Federal

Circuit (Federal Circuit) has recognized this point. In Collaro v. West, it explicitly held that the

"statutory and regulatory regime that Congress created to protect veterans" allows a claimant to file

a "vague NOD" and at a later time "cut the rough stone of his NOD to reveal the radix of his issue

that lay within." 136 F.3d 1304, 1308-09 (Fed. Cir. 1998). Hence, the purpose of the Substantive
7

Appeal requirement—particularly the requirement as articulated in 1980—was to give the Board

some guidance as to what error the claimant perceived.

In interpreting the statute to make the articulation of an argument optional, our dissenting

colleagues divorce the sentence in the statute that provides that a claimant "should set out specific

allegations of error of fact or law" (emphasis added) from the sentence that follows it, within the

same statute, providing that the Board "may dismiss any appeal which fails to allege specific error

of fact or law in the determination being appealed." Our dissenting colleagues essentially read out

of the statute this latter sentence and thus mischaracterize this Court's holding. There is no "implicit"

holding that "should" means "must." Our holding today is that "should," coupled with the latter

sentence in the same statute regarding the Board's express authority to dismiss an appeal that does

not allege an error, means "must" when the Board dismisses the appeal for failing to set out specific

allegations of error. The Court cannot disregard language Congress specifically included in the

statute. By giving the Board authority to dismiss an appeal for a claimant's failure to state the error,

the statute essentially makes the assertion of an error mandatory or, at a minimum, provides that a

claimant assumes the risk of dismissal by the Board if no error is asserted. Of course, if a claimant

does not assert error and the Board does not dismiss the Substantive Appeal for failure to assert an

error, this Court would not be in a position to review the issue whether the Substantive Appeal was

sufficient. In that sense, where the Board has essentially accepted the Substantive Appeal despite

no assertion of error, the Board has waived its authority to dismiss the appeal based upon no

assertion of error. 

C. Interpreting an Alleged Substantive Appeal

In the light of the discussion above, we must determine whether the appellant filed an

adequate Substantive Appeal as to the 1979 denial of his claim. At this point, the Court must

address what it means to liberally read a document. Fundamentally, a liberal reading is a relative

concept. It does not eliminate the relevant procedural requirement. However, it does require VA

to be generous in interpreting a submission in light of what the Secretary needs from the claimant

to continue the process. This is easily illustrated by looking at how the requirement has been applied

to two distinctly different procedural requirements.
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Perhaps no procedural requirement in the adjudication of veterans benefits is less

burdensome than the NOD. The Federal Circuit has observed that it "is not an onerous task," and

that finding that a statement constitutes an NOD merely requires finding "terms that can be

reasonably construed as a desire for appellate review." Gallegos v. Principi, 283 F.3d 1309, 1314

(Fed. Cir. 2002). Within this framework, the Court has liberally interpreted the statement by an

appellant that he "wonder[ed] why [his claim] wasn't allowed back in 1985" to be an NOD as to the

effective date of his award. Anderson v. Principi, 18 Vet.App. 371, 375 (2004).

On the other end of the spectrum, the standard for setting forth a valid assertion of clear and

unmistakable error (CUE) in a final decision is much more demanding. "'In order for there to be a

valid claim of [CUE], . . . [t]he claimant, in short, must assert more than a disagreement as to how

the facts were weighed or evaluated.'" Crippen v. Brown, 9 Vet.App. 412, 418 (1996) (quoting

Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc)). The claimant must provide some degree

of specificity as to what the alleged error is, and, unless it is the kind of error that, if true, would be

CUE on its face, "persuasive reasons must be given as to why the result would have been manifestly

different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (emphasis in original);

see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir.), cert. denied, 528 U.S. 967 (1999)

(adopting this Court's interpretation of 38 C.F.R. § 3.105). In this context, we have observed that

a liberal reading "can fill in details where [a] theory is not fully fleshed out, but it cannot supply a

theory that is absent." Acciola v. Peake, 22 Vet.App. 320, 327 (2008).

It is easy to understand why a CUE motion must meet a more demanding standard than an

NOD must. At the point that an NOD is filed, the Secretary has issued an initial decision and does

not need to know anything more to prepare an SOC than that the claimant is dissatisfied. In

comparison, a CUE motion challenges a final decision. Without a theory of error expressed by the

claimant, the Secretary lacks the roadmap necessary for adjudicating a collateral attack. Cf. Andre

v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002) ("[E]ach 'specific' assertion of CUE constitutes a

claim that must be the subject of a decision by the [Board] before the Veterans Court can exercise

jurisdiction over it."). As we explained in Acciola, lowering the threshold of the CUE pleading

requirement too much would not only place an unmanageable burden on the Secretary, but would

also have veteran-unfriendly consequences even in cases where the Secretary made a sincere effort
9

to invent a theory for the claimant. In other words, even though the liberal reading requirement is

a claimant-friendly standard, we must be mindful of what the Secretary requires from a claimant at

each stage in order to properly continue the adjudication process.

The Substantive Appeal is complemented by the Secretary's duty to address all issues

reasonably raised by the appellant, and the caselaw discussing the Secretary's duty illuminates the

scope of the corresponding requirement. It would be illogical to hold that a document was adequate

to be a Substantive Appeal yet did not sufficiently define a single issue for the Board to address. In

this regard, the Federal Circuit has recently discussed how the liberal reading requirement relates to

the Board's obligation to address theories of error in its decision. Ultimately, it concluded:

We also do not suggest that under the regulations the veteran is entirely

relieved of his or her obligation to raise issues in the first instance before the VA

where the record is being made. The regulations quite clearly impose such an

obligation even in direct appeals, stating that "the Substantive Appeal must either

indicate that the appeal is being perfected as to all . . . issues or must specifically

identify the issues 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 [(2009)].

Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). Although Robinson addressed the

current procedures, it is nonetheless informative of how we should liberally read a purported

Substantive Appeal under the law as it existed in 1980.

Turning back to the issue of whether the correspondence in this case was sufficient to satisfy

the Substantive Appeal requirement, we conclude that it was not. The appellant's May 1980

correspondence stated:

The form was sent out in November 1979, from here, the Veterans at Ponce. I can't

see the reason why you are sending me the same form 1-98 [sic] Appeal, if it is

already filed up. 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. [S]ince I have all the rights. I was 8 years waiting. I hope you will

give me an appointment since I feel very sick and the treatment at Mayaguez consists

only of pills and nothing else.

R. at 184.

Nothing in that paragraph references any part of the SOC or why the denial of the appellant's

claim might be erroneous. It does not dispute any finding of fact made by the RO decision. It does
10

not include even the vaguest outline of error for the Board to address. It does not reference any

argument made in prior correspondence during the claim. Clearly, the appellant is dissatisfied.

However, mere dissatisfaction is the essence of an NOD. Similarly, to the extent Mr. Ortiz's request

for VA in March 1980 to "search the records" for his appeal is an inquiry into the status of his

appeal, the Court concludes that such status inquiry, without some assertion of RO error, is

insufficient to constitute a Substantive Appeal. At the Substantive Appeal stage more is required.

In the absence of an identifiable error for the Board to address, we cannot conclude that this

correspondence satisfies the requirements of a Substantive Appeal.

Our dissenting colleagues appear to equate the term "issue" with "error." We agree that the

1980 letter identified the general claim of service connection for a nervous condition and it was

understandable that Mr. Ortiz was contesting whether new and material evidence had been

submitted to reopen the prior denial of that claim. To be clear, however, that misses the mark. It

is not sufficient for Mr. Ortiz to merely identify his claim, but rather, as stated above, he must state

what error was committed by the RO. Although there was only one claim at issue, there are any

number of possible errors that could be alleged. For example, the appellant could have asserted that

the RO failed to address a particular piece of evidence in the record, that the RO erred in its

interpretation of the new evidence it discussed, that the original decision was never final, or that

some aspect of the substantive law was misapplied. Accordingly, the fact that the Board could

identify the claim does not demonstrate that it could identify any particular substantive, procedural,

developmental, or notice error. We cannot agree with our dissenting colleague that a claimant's mere

notification to the Secretary that he is appealing an RO's decision denying a claim to reopen fulfills

the statutory requirements and precludes the Board from exercising its discretion in finding a

Substantive Appeal to be inadequate based on a failure of the claimant to allege any error in the RO

decision. While acknowledging "the Board's discretionary authority to reject a Substantive Appeal

(or the equivalent)" and the Board's continued "discretion to dismiss an administrative appeal if a

Substantive Appeal was untimely or inadequate," our dissenting colleague suggests that we should

address the Court's standard of review as to the issue whether a claimant's filing below constituted

a Substantive Appeal. The standard of review was clearly established in Gibson and we decline to

change it here. But under any standard of review, the 1980 documents submitted by Mr. Ortiz do
11

not constitute a Substantive Appeal (i.e., an adequate Substantive Appeal) because they fail to allege

any error at all in the 1979 RO decision. In this case, two letters from the RO explained to the

appellant that it had no record that he had filed a Substantive Appeal and asked that the appellant file

a Substantive Appeal. That was not an unreasonable request. The appellant need not be rewarded

for his refusal to cooperate. Cf. Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (noting that "[t]he

duty to assist is not always a one-way street").

Our conclusion is reinforced by comparing the case to some of our prior decisions. The

circumstances in Gibson, supra, are strikingly similar to those presented in this case. In Gibson, an

RO denied the claimant an award of TDIU. In response to that decision, the claimant obtained a VA

Form 1-9, handwrote his disagreement with the RO's decision on separate sheets of paper, attached

those papers to the Form 1-9 document, and wrote "see attached sheets" on the form. This

submission was treated by VA as an NOD, an SOC was issued, and the claimant was asked to submit

a Form 1-9. He did not do so until after the time to submit the form had expired. On appeal, he

maintained that his original submission of the Form 1-9 constituted an adequate Substantive Appeal

although it was submitted prior to the issuance of the SOC and did not set forth any specific

allegations of error of fact or law. The Court held that the original submission of the Form 1-9, even

assuming it was possible to consider it a document separate from the attached sheets, could not

constitute a Substantive Appeal because it "lack[ed] the specificity that section 7105(d)(3), as

reinforced through regulation, requests." Gibson, 22 Vet.App. at 17. 

As in Gibson, the appellant here indicated his subjective desire to appeal to the Board in his

1980 letters to VA. R. at 178 ("Kindly requesting status of my claim of appeal to Washington").

Both Mr. Ortiz and Mr. Gibson were aware that nothing they had submitted to VA was accepted as

a Substantive Appeal by the RO. See id. at 16 ("None of the documents generated by the RO

contained information indicating to the appellant that the RO had received or accepted a Substantive

Appeal from him."); see R. at 181 ("In reference to VA Form 21-4138 received on March 27, 1980,

you must submit VA Form 1-9 to reactivate your appeal."); R. at 195 (letter to appellant stating that

VA Form 1-9 "was never received in Veterans Administration"). Both Mr. Ortiz's letters and Mr.

Gibson's Form 1-9 contained no allegations of error of fact or law. 
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Further, in another case where no Form 1-9 was submitted, the Court held that an "equivalent

in correspondence" to a Form 1-9 must include some allegations of error of fact or law in VA's

decision. In Archbold v. Brown, the Court concluded that a Substantive Appeal had been filed,

absent the submission of a VA Form 1-9, because the appellant had submitted a "written statement

[that was] presented to and accepted by the Board [that] specifically identified the issue appealed

[and it] contained specific arguments as to the errors made by the RO." 9 Vet.App. 124, 132 (1996).

In that case, the appellant submitted a written document to clarify his claims at a Board hearing. Id.

The document set forth the benefit he was seeking–a reinstatement of his 40% disability rating that

had been reduced by VA. He explained how particular evidence supported his belief that he was

entitled to a higher disability rating and stated his reduced rating was inadequate. Given this detailed

statement and the Board's acceptance of it, the Court determined this constituted a Substantive

Appeal because it "contained the necessary information required for a 1-9 Appeal." Id.

Unlike Archbold, here the appellant's 1980 letters contain almost none of the necessary

information required by the Form 1-9 appeal such that they can be construed as an "equivalent in

correspondence." The 1979 Form 1-9 required that claimants set forth "in specific detail the benefits

sought on appeal and your reasons for believing that the action appealed from is erroneous." See VA

Form 1-9, June 1979. To be an "equivalent in correspondence" to the 1979 Form 1-9, at a minimum

the appellant had to make some effort to explain why the SOC was in error. While the appellant

identified his claim, he asserted no reason or theory why the SOC was incorrect as the 1979 Form

1-9 requires. 

Ultimately, the veterans benefits system—particularly in the era before this Court was

created—sometimes requires claimants to be more than passive participants. Cf. Dusek v. Derwinski,

2 Vet.App. 519, 521-22 (1992) (affirming the denial of a claim for an increased disability rating

based upon the claimant's refusal to cooperate with a VA medical examination); Wood, 1 Vet.App.

at 193 (noting that "[t]he duty to assist is not always a one-way street"). The Court has recognized

that the VA system does not have infinite resources. Grivois v. Brown, 6 Vet.App. 136, 139 (1994).

Accordingly, it is appropriate for the Secretary to conserve those resources by requiring a reasonable

level of cooperation from a claimant. Id. In the context of the Substantive Appeal, the statute and

regulations in effect require an appellant to state in at least general terms why the RO's decision was
Even assuming, as our dissenting colleague, Chief Judge Greene, states, that the RO erred in 1980 in not 2

forwarding to the Board the issue of the adequacy of Mr. Ortiz's response to the SOC as a Substantive Appeal, the fact

that the issue of adequacy remained open and pending until resolved by the Board does not mean that the claim for

benefits based on bipolar disorder remained open and pending for 25 years. The claim did not remain pending for 25

years because Mr. Ortiz's 1980 submission was ultimately correctly determined by the Board to be inadequate as a

Substantive Appeal and the 1979 RO decision denying the claim, therefore, was final. The mere passage of time, no

matter how long, in resolving the issue of adequacy cannot fix a broken appeal. The passage of time cannot resuscitate

an appeal as to the denial of a claim where the appeal was not effectuated with a proper Substantive Appeal. Because

the 1980 submission here was inadequate as a Substantive Appeal, it does not matter how long the issue of the adequacy

of the Substantive Appeal was pending.

13

erroneous. As we stressed in Acciola, "the Court is not trying to establish a bright-line rule.

Mechanical rules are easily misapplied to unsophisticated pro se pleadings. Rather the Court

recognizes that the difficult task of sympathetically reading [pro se pleadings] must apply common

sense to balance reasonable assistance to veterans against undue burdens on the Secretary."

22 Vet.App. at 327. As the correspondence in this case failed to even state a rough or inarticulate

allegation of error, the Board's effective-date determination was correct.2

III. CONCLUSION

Upon consideration of the foregoing, the Board's August 9, 2005, decision is AFFIRMED.

KASOLD, Judge, dissenting: Anyone reading the first few paragraphs of the facts as found

by the Board and laid out in the majority opinion is left with a clear understanding that (1) Mr. Ortiz

timely inquired about his appeal to the Board, (2) the RO either never received his appeal or lost it,

and informed Mr. Ortiz that he must file a VA Form 1-9, (3) a frustrated Mr. Ortiz replied to the RO

that he had already filed an appeal form and he wanted his appeal processed and wanted benefits for

his "nervous condition," later characterized by the Secretary as bipolar disorder. It is also clear from

the facts as found by the Board and laid out by the majority that Mr. Ortiz's 1979 claim had been

denied for one reason and one reason only, i.e., because "the evidence submitted was deemed

insufficient or inadequate to warrant a reopening of his claim," i.e., failure to submit new and

material evidence. Ante at 2; see also Gibson v. Peake, 22 Vet.App. 11, 15 (2007) (Court reviews

Substantive Appeal de novo).
14

The RO's direction that Mr. Ortiz had to submit his appeal on a VA Form 1-9 to reinstate his

claim, R. at 181 (April 1980 letter from the RO advising Mr. Ortiz that "he must submit VA Form

1-9 to reactivate his appeal") (emphasis added)), was not and is not the law. See 38 C.F.R. § 19.116

(1980) (appealing to the Board may be executed with a VA Form 1-9 "or its equivalent in

correspondence from a claimant or his representative following the furnishing of a Statement of the

Case"); see also 38 C.F.R. § 20.202 (2009) (providing that an appeal consists of a VA Form 9 "or

correspondence containing the necessary information"). While one might be critical of Mr. Ortiz

for his apparent frustration, it is axiomatic that the RO could not force the filing of a VA Form 1-9

before processing the appeal. Moreover, the Court early on recognized that laches will not apply

against a veteran. Browder v. Derwinski, 1 Vet.App. 204, 208 (1991) (concluding "that the VA

benefits system as well as the Veterans' Judicial Review Act both militate against the application of

the doctrine [of laches] to cases before this Court" (citing Manio v. Derwinski, 1 Vet.App. 140

(1991))). Furthermore, it is the Board, not the RO, that has the authority to dismiss an appeal if the

Substantive Appeal is inadequate. 38 U.S.C. § 4005(d)(5) (1980) ("The Board of Veterans' Appeal

. . . may dismiss any appeal which fails to allege specific error of fact or law in the determination

being appealed."), now codified as 38 U.S.C. § 7105(5). 

Although the majority lay out the relevant facts at the outset of their opinion, their subsequent

discussion and analysis regarding whether a Substantive Appeal had been filed inexplicably focuses

only on Mr. Ortiz's May 1980 letter to the Secretary. Ante at 8-9. Such a narrow focus is not the

law. Whether or not a Substantive Appeal or the equivalent has been filed is determined by

considering the totality of the circumstances, Gibson, 22 Vet.App. at 17 ("evaluating the content and

circumstances" of the veteran's submissions to determine whether they constitute an NOD and a

Substantive Appeal); cf. Jarvis v. West, 12 Vet.App. 559, 561 (1999) ("In determining whether a

written communication constitutes an NOD, on de novo review, the Court looks at both the actual

wording of the communication and the context in which it was written."), and providing a liberal and

sympathetic reading of the pleadings, see Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)

(stating that with respect to "all pro se pleadings, [the Board and the Secretary are required to] give

a sympathetic reading to the veteran's filings") (citing Roberson v. Principi, 251 F.3d 1378 (Fed. Cir.

2001)); Moore v. West, 13 Vet.App. 69, 74 (1999) (stating that "submissions of VA claimants are
 Inasmuch as the RO lacks the authority to determine whether a Substantive Appeal has been filed, see 38 3

U.S.C. § 4005(d)(5) (1980) ("The Board of Veterans' Appeals . . . may dismiss any appeal which fails to allege specific

error of fact or law in the determination being appealed.") (now codified as 38 U.S.C. § 7105(5)), and the Board did not

review it until 2005, the 2005 statute and regulations could be the governing authority. The result is the same, however,

since the applicable 2005 statutory provision and regulation governing the Substantive Appeal continue to use "should"

with regard to the contents of the Substantive Appeal.

15

to be read liberally"); see also Acciola v. Peake, 22 Vet.App. 320 (2008) (Secretary conceding that

even pleadings filed by a veteran's representative are to be read sympathetically). 

The result reached by the majority comes simply and plainly from their implicit holding that

"should" means "must" in the controlling statute and regulation, and in the notice provided to Mr.

Ortiz. 38 U.S.C. § 4005(d)(5) ("The appeal should set out specific allegations of error of fact or law,

such allegations related to specific items in the statement of the case." (emphasis added)); 38 C.F.R.

§ 19.116 (1980) ("The appeal should set out specific allegations of error of fact or law." (emphasis

added)); R. at 171 (October 1979 letter advising Mr. Ortiz that he "should set out" his arguments 3

on the attached VA Form 1-9 (emphasis added)). In so holding, however, the majority fail to

consider that statutes dealing with veterans benefits are to be liberally construed in favor of the

veteran. See Brown v. Gardner, 513 U.S. 115, 120 (1994); see also Gomez v. Principi, 17 Vet.App.

369, 376 (2003) (Steinberg, J., concurring) (noting that it would be unreasonable to interpret

"should" as meaning "must" when the next sentence of the statutory section uses the word "must").

It might be possible to read "shall" as "should," given the context of a complete statutory

scheme, but it is wholly incongruous with a liberal construction favorable to the veteran to construe

a nonmandatory "should" as a mandatory "must" when interpreting a statute dealing with filing

requirements for an administrative appeal for a veteran seeking benefits, as is the case here.

The majority's reliance on cases dealing with CUE for its holding that "should" means "must"

is wholly inapposite. CUE deals with attacking an otherwise final decision, see Disabled Am.

Veterans v. Gober, 234 F.3d 682, 696-98 (Fed. Cir. 2000), and the CUE regulation uses the

mandatory "must" as opposed to the nonmandatory "should" with regard to the need to set forth clear

error of fact or law. 38 C.F.R. § 20.1404(b) (2009); see also Andre v. Principi, 301 F.3d 1354, 1361

(Fed. Cir. 2002) (noting that "[u]nlike a claim for benefits, a CUE claim subsumes a specific

allegation of error" and therefore the claimant must describe the alleged error with specificity). 
 The majority's description of possible issues on appeal is a red herring. Ante at 10. Surely, Mr. Ortiz could 4

have delineated such issues, but simply appealing the RO's determination that he had not submitted new and material

evidence is sufficient issue identification for administrative appeal.

16

Similarly, the majority's reliance on Gibson, supra, to support its implicit holding that

"should" means "must" ignores a key factual difference in the cases. In Gibson, the purported

Substantive Appeal was filed before a SOC was issued. Without an SOC, it would be (and is)

impossible to understand what issues in the SOC were (are) being disputed. Here, in stark contrast,

Mr. Oritz's letters were sent in shortly after he received the SOC that addressed only one issue—the

failure, as determined by the RO, to submit new and material evidence—making it readily

understandable what Mr. Ortiz was contesting. 4

Although our caselaw supports de novo review of whether a pleading below constitutes a

Substantive Appeal, I note that in 1980 the Board had, and continues to have, the discretion to

dismiss an administrative appeal if a Substantive Appeal was untimely or inadequate. See 38 U.S.C.

§ 4005(d)(5) (1980) ("The Board of Veterans' Appeals . . . may dismiss any appeal which fails to

allege specific error of fact or law in the determination being appealed." (emphasis added)) (now

codified as 38 U.S.C. § 7105(5)). The discretion vested in the Board certainly brings into question

what our standard of review should be, see 38 U.S.C. §7261(a)(3)(A) (conclusions of the Board are

reviewed under the "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with

law" standard of review); see also Foster v. Derwinski, 1 Vet.App. 393, 394 (1991) (review of the

Secretary's discretionary determinations is under the "arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law" standard), but even under the "arbitrary and capricious"

standard of review, the Board's decision that Mr. Ortiz's filings under the circumstances of this case

were insufficient to constitute a Substantive Appeal would be arbitrary and capricious because the

issue on administrative review is readily discernable – i.e., the RO's finding that Mr. Ortiz failed to

submit new and material evidence. The majority's conclusion to the contrary can be reached only

by transforming permissive statutory and regulatory language into mandatory language requiring Mr.

Ortiz to provide specific language in his appeal documents, without consideration of the totality of

the circumstances under which the documents were filed. This reverses, without explanation, our

previous caselaw, Gibson, supra, and gives new meaning to the duty to assist and a liberal and

sympathetic reading of pleadings! See Szemraj, Acciola, Moore, and Gibson, all supra. 
17

Finally, the majority's concern for the lack of infinite resources of the Secretary is

commendable, but it misses the mark. No organization has infinite resources, yet adherence to the

law nevertheless is required. Here, the law encourages a claimant to specify the issues on

administrative appeal; it does not require it. Rather, a Substantive Appeal "should" provide such

specificity, but if the totality of the circumstances and liberal reading permit an understanding of the

issue on appeal, the statute is satisfied. Mr. Ortiz met that standard, and the Secretary erred in not

processing his appeal. The failure to process his appeal kept Mr. Ortiz's claim open until the

Secretary finally addressed this issue and granted service connection, giving rise to the effective date

issue now on appeal. See 38 U.S.C. § 4005(d)(5) (1980) (giving the Board, not the RO, the authority

to dismiss an appeal for failing the allege specific error of law and fact) (now codified as 38 U.S.C.

§ 7105(5)). Under these circumstances, Mr. Ortiz may be entitled to an effective date for the award

of benefits as early as 1979, the date of his claim to reopen, or the date his entitlement arose,

whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2009). 

Accordingly, I believe that the decision of the Board regarding an effective date should be

set aside and the matter remanded for adjudication of the proper effective date.

GREENE, Chief Judge, dissenting: Although I agree with Judge Kasold's analysis, I write

separately to highlight a few points. Mr. Ortiz's March 1980 statement in support of claim and his

May 12, 1980, letter indicate that he believed he had filed a VA Form 1-9 in November 1979 with

regard to his claim and administrative appeal, within 60 days after receiving the October 1979 SOC.

The June 1980 response from the Secretary, which notably was addressed to another person and no

copy of the VA Form 1-9 that was purportedly sent with the letter is contained in the record on

appeal, informed Mr. Ortiz that his VA Form 1-9 had not been received and that he should complete

a new VA Form 1-9 and send it back to the RO within 30 days or else no further action would be

taken on his appeal. In 1980 VA regulation provided that after an NOD was filed, the RO had

discretion to close a case only if no response was received to the SOC. See 38 C.F.R. § 19.121(a)

(1980). 

Assuming arguendo that Mr. Ortiz had actually received the letter, he understood that it was

directed to him, and that he had been provided another VA Form 1-9, his March and May 1980
18

submissions to the RO, which were each made in response to the October 1979 SOC, were submitted

within one year of the September 1979 RO decision. As required by section 4005(d)(3), any

questions as to the timeliness or adequacy of those documents should have been resolved by the

Board. See Tropf v. Nicholson, 20 Vet.App. 317, 321 n.1 (2006) ("[A] statute is ambiguous only

when the application of the ordinary meaning of the words and rules of construction to the plain

language of the regulation fails to answer the question at issue . . . . Without standard word

meanings and rules of construction, neither Congress nor the Secretary can know how to write

authorities in a way that conveys their intent and no practitioner or-more importantly-veteran can rely

on a statute or regulation to mean what it appears to say."); see also Gardner v. Derwinski,

1 Vet.App. 584, 586 (1991) ("Determining a statute's plain meaning requires examining the specific

language at issue and the overall structure of the statute."), aff'd sub nom. Gardner v. Brown, 5 F.3d

1456 (Fed. Cir.1993), aff'd, 513 U.S. 115 (1994); 38 C.F.R. § 19.121(a) (1980). Thus, the RO erred

by closing Mr. Ortiz's case before forwarding his March and May 1980 statements to the Board to

liberally read the documents and determine the timeliness and adequacy of the responses to the SOC.

See 38 U.S.C. § 4005(d)(3); 38 C.F.R. §§ 19.116, 19.121(a) (1980). Therefore, without following

that requirement, the claim remained pending until a decision was made as to the timeliness and

adequacy of Mr. Ortiz's responses by the Board. 38 C.F.R. § 3.160(c) (2009) ("pending claim" is

"[a]n application, formal or informal, which has not been finally adjudicated"); see Myers v. Principi,

16 Vet.App. 228, 235 (2002) (holding that claim remains open after it is placed in appellate status

and before resolution by Board); see also Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) (claim

remains pending where RO fails to follow procedures by issuing SOC after claimant files timely

NOD). 

Although the Board in the August 2005 decision here on appeal finally made a determination

regarding the adequacy of Mr. Ortiz's March and May 1980 statements, that decision does not negate

the 25 year period that the claim was pending before the decision was made. See Myers and

Tablazon, both supra. As stated above, in March 2000, the RO awarded Mr. Ortiz service

connection for bipolar disorder with a 70% disability rating and a rating of TDIU. Because this

award was granted while Mr. Ortiz's claim was still pending, I would hold that the Board erred by
19

not considering the entire period for which the claim was pending to determine the proper effective

date. See 38 U.S.C. § 5110(a). Accordingly, I must dissent.