On October 8, 2015, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), sitting in Boston, heard argument on NOVA’s petition for review of the VA’s final rule implementing regulations concerning standard claims and appeals forms under 38 U.S.C. § 7105. National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, No 2015-7025. Kenneth Carpenter, Carpenter Chartered, argued for NOVA. The Federal Circuit consolidated the argument with those of the Veterans Justice Group and the American Legion. Veterans Justice Group v. Secretary of Veterans Affairs, No. 15-7021; American Legion v. Secretary of Veterans Affairs, No. 15-7061.
NOVA focused its challenge on the VA’s prescribed notice of disagreement (NOD) form. In its petition, NOVA argued the VA’s requirement of a standardized NOD form exceeds the Secretary’s authority to prescribe “the forms of application by claimants” under 38 U.S.C. § 501(a)(2). NOVA further argued Rule 20.201(a) imposes an unnecessary burden on claimants and will result in the rejection of statutorily- sufficient NODs. The imposition of stricter limits than those dictated by statute violates the uniquely pro-claimant system crafted by Congress.
During the argument, NOVA emphasized the statute only requires the veteran express disagreement with a decision to initiate an appeal. Therefore, the VA’s additional requirements, i.e., a mandatory form that asks the veteran to address a “specific issue of disagreement” and “area of disagreement” are not in accordance with law. The recorded argument can be heard by clicking HERE.