Skip to the main content.
Free Case Review




green lock security thumb

green lock security thumb



green lock security thumb

green lock security thumb



4 min read

Encarnacion's Notice of Disagreement and Request for Reconsideration

Soldier carrying books related to topic Notice of Disagreement | Request for Reconsideration | VA Benefits Law

In the ongoing appeal process, Carmen L. Encarnacion, the surviving spouse of a veteran, is challenging a Board decision that dismissed the veteran's claim for a higher rating for a right knee condition.

The Board's reasoning for dismissing the appeal was based on their belief that they did not have the jurisdiction to consider it. They argued that the Notice of Disagreement (NOD) was primarily challenging the implementation of a decision made by the Board in 2018.

However, the Court of Appeals for Veterans Claims disagreed with the Board's stance, stating that the implementation of the Board's decision by the AOJ (Agency of Original Jurisdiction) did not qualify as a "decision" made by the Secretary of Veterans Affairs and therefore could not be appealed.

Despite this ruling, the Court remanded the case back to the Board with instructions to determine whether Ms. Encarnacion's submission could be interpreted as a motion to reconsider.

Following her husband's passing, Ms. Encarnacion filed two claims: one for dependency and indemnity compensation and another for accrued benefits.

The Board has dealt with the right knee claim on five separate occasions, dismissing it, remanding it, and finally reaching a decision.

In their May 2018 decision, the Board granted an initial rating of 10% for the limitation of flexion in the right knee, but no higher.

Ms. Encarnacion submitted an NOD in response to the AOJ's implementation of the Board's decision, which the Board rejected due to lack of jurisdiction.

The Court of Appeals for Veterans Claims has raised concerns about the effectiveness of the joint motion to remand the case, as it seems to only prolong the resolution of the issue.

The Court thoroughly examines the issue of jurisdiction in relation to Ms. Encarnacion's appeal, specifically focusing on the implementation of the Board's decision by the AOJ. According to the Court, the AOJ's implementation does not qualify as a "decision" under 38 U.S.C. § 511(a), thus questioning the Board's jurisdiction.

In its analysis, the Court refers to two provisions, 38 U.S.C. §§ 511 and 7104(a), which address the jurisdictional question. It highlights that there are exceptions to the finality of a Board decision, including the possibility of filing a Notice of Appeal, requesting reconsideration, or submitting a motion to revise the decision.

Ultimately, the Court concludes that the Board was not in error when it determined that it lacked jurisdiction, as the AOJ's implementation of the Board's decision was merely a ministerial task.

In light of this decision, the Court vacates the Board's previous decisions and remands the case back to the Board. The purpose of the remand is for the Board to assess whether Ms. Encarnacion's submission in July 2018 can be considered as a motion to reconsider.

Furthermore, the Court emphasizes the significance of jurisdiction, stating that it cannot be expanded or limited by agencies. However, it does not address a substitution issue raised by Ms. Encarnacion's new counsel, deeming it moot and not brought up in the initial brief.

It is important to note that Ms. Encarnacion's spouse, Army veteran Idilio Aparicio, sustained injuries to his left knee while on active duty in 1970, tearing his anterior cruciate ligament and medial meniscus.

In October 2009, the veteran made a request for service connection or increased ratings for various disabilities affecting his knees, back, and arms and legs. A C&P physician provided an opinion in March 2010, stating that the veteran's right knee condition was linked to his already service-connected left knee condition. In August 2010, the San Juan, Puerto Rico regional office (RO) granted service connection for lumbar strain and degenerative joint disease, rated at 40%, as well as right knee degenerative joint disease, rated at 10%. However, they denied several other claims. In September 2010, the veteran expressed disagreement with the assigned ratings, effective dates, and service connection denials. A Statement of the Case (SOC) in March 2011 reaffirmed the RO's decisions. Shortly after receiving the SOC, the veteran filed a VA Form 9, appealing all the issues. Unfortunately, the veteran passed away in Puerto Rico on October 25, 2011. On November 2, 2011, the appellant, Carmen L. Encarnacion, informed the VA of the veteran's death and requested an evaluation of Dependency and Indemnity Compensation (DIC) benefits, as well as the continuation of the appeal for accrued benefits.

According to the regulation, the agency of original jurisdiction (AOJ) is responsible for making decisions regarding substitution requests, including those made during an appeal pending before the Board.

In this case, the appellant's request for Dependency and Indemnity Compensation (DIC) benefits was denied by the VA. In June 2014, the appellant submitted a statement expressing disagreement with the denial. However, the Philadelphia regional office (RO) refused to accept the statement as a Notice of Disagreement (NOD) since the appellant already had an appeal pending for the same issue at the San Juan RO.

Despite the Board's attempts to have the AOJ address the issue of substitution, the AOJ did not take any action. Eventually, the Board dismissed the veteran's appeal due to his passing before a decision was issued. However, the Board acknowledged that the appellant had submitted a statement and an NOD that could be interpreted as a request to be substituted as the appellant.

To further investigate whether the veteran's service-connected disabilities contributed to his death, the Board remanded the case to the RO. This remand instructed the RO to issue a Statement of the Case (SOC), obtain necessary records, and seek a medical opinion. However, the Board found the medical opinions regarding the cause of the veteran's death to be inadequate and remanded the case again. This time, the RO was directed to provide the appellant with appropriate notice and refer her claims file to another VA physician.

Despite the regulatory requirement for a formal determination of substitution, the Board decided to overlook it, stating that the AOJ's actions implied acceptance of the appellant as a substitute. However, the Board made an error in describing the prior remands, stating that they occurred in May 2015 and September 2016, when they actually occurred in May 2016 and September 2017.

The Board failed to provide clarification regarding the contents of the December 2017 letter, which was not included in the court record.

The appellant argued that the Board lacked jurisdiction due to the AOJ's failure to make a substitution determination, while the Board maintained that it had jurisdiction.

The appellant's counsel expressed concerns about the appellant's ability to understand her rights given the conflicting messages she received from the VA.

The Court ordered a remand of the case to allow the Board to determine whether the appellant's July 2018 Notice of Disagreement could be interpreted as a motion for reconsideration.

In discussing the appeal, the Court highlighted the Board's lack of jurisdiction to consider the case.

Furthermore, the Court instructed the Board to carefully consider whether Ms. Encarnacion's submission could be viewed as a motion to reconsider.

The Court acknowledged that the appellant had ample time to submit evidence and noted that the failure to do so since November 2011 was not prejudicial.

It is important to note that the specific claim at issue in this appeal concerns a higher rating for a right knee condition.

The Court clarified that only the right knee claim is being addressed in this appeal.

Additionally, the Court delved into the distinction between "pure" and "mixed" implementation decisions.

To support its argument, the Court cited Grantham v. Brown as an example of a "mixed" implementation decision.