Sean Kendall Veterans Law Firm

​Despite Court cases that provide that veterans may file a written Notice of Disagreement (NOD) in any written format, VA is now proposing that veterans use a standard form to file such a document.  Such VA proposed regulations are clearly contrary to law.  The U.S. Court of Appeals for Veterans Calims (CAVC) has addressed the first issue when it held that the Secretary's authority does not include creating formal requirements for an NOD beyond the requirements set by 38 U.S.C. § 7105. See Tomlin v. Brown, 5 Vet. App. 355 (Vet. App. 1993). Furthermore, in Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002), the court upheld the construction of the authorizing statute contained in the current Rule 20.201. Specifically, the court held that requiring an NOD to contain "terms that can be reasonably construed as a disagreement with that determination and a desire for appellate review" is a "reasonable and permissible construction of § 7105." Id. at 1314.VA argues that this holding grants authority to define an NOD as a form the agency promulgates.  However, if the VA requires veterans to use its standard form, the result will be more veterans missing the one year appeal deadline to disagree with a VA decision. The Proposed Rule has two major components: (1) To require all claims to be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises, and (2) To provide that VA would accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as a Notice of Disagreement (NOD) only if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided.

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