Whitt v. Derwinski

Whitt v. Derwinski, 1 Vet. App. 40, decided 1990-10-12.

FARLEY, Associate Judge, concurring in part and dissenting in part.

I agree with the principles and analyses of the majority and the results derived from their application to the Whitt, Williams and Davis cases. However, because I do not believe that they were correctly applied in the Stokes case, I respectfully dissent.

Congress determined that this Court would have jurisdiction to review decisions of the Board of Veterans Appeals (BVA) in those cases “in which a notice of disagreement [was] filed ... on or after [November 18, 1988].” Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402. Congress might well have chosen to confine the grant of jurisdiction to BVA decisions entered “on or after” November 18,1988, but it did not. Instead, Congress chose an earlier interim step in the claims adjudication process and focused upon the Notice of Disagreement (NOD).

Prior to the creation of this Court, the NOD served only a minor role in the adjudication process. A rating decision was usually communicated to a veteran in the barest of terms with little recitation of the evidence or discussion of the rationale. If the veteran was dissatisfied with the result and desired review by the BVA, it was necessary for the veteran to file a NOD with the Regional Office. 38 C.F.R. § 19.-118 (1989). The function of the NOD was merely to prompt the Regional Office to prepare a Statement of the Case (SOC) which consists of a description of the evidence and the basis for the adjudication for review by the BVA. 38 C.F.R. § 19.119 (1989). However, with the passage of the Veterans’ Judicial Review Act, 38 U.S.C. §§ 4051-4092 (1988), the NOD, which previously served only a minor procedural purpose, was accorded new and substantial legal significance for it was selected to serve as the foundation of this Court’s jurisdiction. See Pub.L. No. 100-687, § 402.

The filing of an initial NOD satisfied the procedural purpose of the Department of Veterans Affairs (VA) for it would have prompted the preparation of the SOC and initiated the appeal. It is for this reason that the VA never had the occasion to address the question of whether, there could be more than one NOD with respect to a single claim. Consideration of subsequent NOD’s only became important when the NOD was decreed by statute to have a bearing on this Court’s jurisdiction. While multiple NOD’s would have little or no significance for the VA in processing an appeal, they could well be significant in determining whether this Court could entertain an appeal of a BVA decision.

As we said in Erspamer v. Derwinski, 1 Vet.App. 3 (1990), “the trigger for a Notice of Disagreement is an adjudication deci*48sion.” Erspamer, at 8. If there is more than one adjudication, there can, but need not, be more than one NOD; thus, an NOD is triggered by an adjudication but every adjudication need not trigger an NOD. If, following an adjudication, an initial NOD was filed after November 18, 1988, this Court would have jurisdiction to review the BVA decision. If, however, the initial NOD was filed before November 18, 1988, this Court would not have jurisdiction unless there was a subsequent adjudication and a valid NOD filed after November 18, 1988.

In both the Whitt and Williams cases, there were initial adjudications and NOD’s filed prior to November 18, 1988, and subsequent adjudications (by a Hearing Officer in Whitt and by the Regional Office, sua sponte, in Williams) followed by NOD’s filed after November 18, 1988. This Court has jurisdiction to consider each of these cases and I concur in the denial of the Secretary’s motions to dismiss. In Davis, an initial adjudication was also followed by a later adjudication but the subsequent NOD was filed before rather than after November 18, 1988. Therefore, this Court lacks jurisdiction and I concur in the granting of the Secretary’s motion to dismiss. In Stokes, an initial adjudication and a pre-November 18, 1988, NOD was followed by a later adjudication, the December 9, 1988, decision by the Hearing Officer. The veteran, by his Paralyzed Veterans of America representative, filed a VA Form 1-646 dated March 31, 1989, with the Regional Office. The veteran’s representative specifically disagreed with the “VA rating decision of 1-4-88”, Br. of Appellant at Exhibit 24, which was the original adjudication, and stated that the veteran “has properly completed all steps to this final appeal.” Id. Specific mention was made of the “personal hearing before the Hearing Officer on 11-16-88.” Id. The veteran’s testimony at the hearing was summarized and, in the penultimate paragraph, “[t]he VA’s repeated denial ...” of the claim was noted. Id. The majority concludes that this document is not an NOD and it is this conclusion with which I disagree.

Two reasons are given for the conclusion that the filing of March 31, 1989, is not an NOD: “While it referred to the hearing, it did not in any way disagree with the decision emanating from it. Perhaps, given the fact that the Regional Office did not mail notification of its decision until April, 1989, there was no awareness of the decision when the VA Form 1-646 was filed.” Supra at p. 47. It is true that the decision of the Hearing Officer is not referred to by specific date; however, 38 C.F.R. § 19.118 provides that: “The Notice of Disagreement should be in terms which can be reasonably construed as a desire for review of that determination. It need not be expressed in any special wording.” In my view, the March 31, 1989, VA Form 1-646 submitted on behalf of the veteran “can be reasonably construed as a desire for review”, id., of the Hearing Officer’s adjudication. After all, “[i]t need not be expressed in any special wording.” Id.

The second reason given by the majority is that the veteran himself could not have had notice of the Hearing Officer’s decision on March 31, 1989, the date which appears on the document, because, as the veteran later noted in a pro se submission, he did not receive notice of the decision until April 1989. This is an insufficient predicate for dismissing the Notice of Disagreement filed by the veteran’s representative. Moreover, it ignores the realities of the relationship and the daily contact between representatives of the service organizations, such as the Paralyzed Veterans Association, and the adjudication personnel in the regional offices.

There is no doubt that the decision by the Hearing Officer on December 9, 1988, was an adjudication. The statement dated March 31, 1989, which was submitted by a National Service Officer of the Paralyzed Veterans Association on behalf of the veteran, fulfilled the regulatory definition of an NOD. Since that NOD was filed after November 18, 1988, I believe that this Court has jurisdiction to entertain this ap*49peal. Because I would deny the motion to dismiss, I respectfully dissent.

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KRAMER, Associate Judge, filed the opinion of the Court, in which NEBEKER, Chief Judge, joined.

FARLEY, Associate Judge, concurring in part and dissenting in part, filed a separate opinion.

KRAMER, Associate Judge: SUMMARY OF DECISION

The Court joined Whitt v. Derwinski, U.S.Vet.App. No. 89-16, Williams v. Derwinski, U.S.Vet.App. No. 89-151, Davis v. Derwinski, U.S.Vet.App. No. 90-38, and Stokes v. Derwinski, U.S.Vet.App. No. 90-122 because, in each of these cases, the Secretary of Veterans Affairs (Secretary) filed a motion to dismiss, asserting that the Notice of Disagreement (NOD) was filed before November 18, 1988, and that the Court is thus without jurisdiction. The Veterans’ Judicial Review Act (Act) provides that it “shall apply with respect to any case in which a notice of disagreement is filed ... on or after ... [November 18, 1988].” Veterans’ Judicial Review Act, Pub.L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The definition of an NOD, at 38 C.F.R. § 19.118 (1989) (Regulation), is dispositive of whether we have jurisdiction. Applying this definition to the facts of these cases, we deny the motions to dismiss in the Whitt and Williams cases and grant them in the Davis and Stokes cases.

ANALYSIS

Prior to the Act, there existed a statutory bar to judicial review of veterans’ benefits decisions. 38 U.S.C. § 211(a) (1988). The Act granted the Court exclusive jurisdiction to review decisions which are adverse to claimants of the Board of *42Veterans’ Appeals (BVA), 38 U.S.C. § 4052 (1988), “in which a notice of disagreement is filed under section 4005 of title 38, United States Code, on or after ... [November 18, 1988].” Pub.L. No. 100-687, § 402. Neither the Act, nor 38 U.S.C. § 4005 (1988), however, define an NOD. Section 4005 provides procedures that the appellant shall follow in filing an NOD and the actions that the Secretary shall take subsequent to such filing. A written NOD starts an appeal within the Department of Veterans Affairs (VA), is based upon disagreement with a determination of the agency to which an application for benefits was made, and must be filed within one year of the date of the mailing of the notice of such determination. § 4005(a), (b)(1).

Citing the statutory authority in § 4005, the Secretary defined NOD in the Regulation as follows:

A written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction (the VA regional office, medical center or clinic which notified the claimant of the action taken) will constitute a Notice of Disagreement. The Notice of Disagreement should be in terms which can be reasonably construed as a desire for review of that determination. It need not be expressed in any special wording.

38 C.F.R. § 19.118.

While the Secretary maintains that the only valid NOD that can be filed is the first NOD filed in response to the first adjudicative determination of an agency of original jurisdiction with respect to a particular claim, the plain language of the Regulation states otherwise. The operative words are “expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction (the VA Regional Office, medical center or clinic which notified the claimant of the action taken)_” (emphasis added). Nothing in this language suggests that the only NOD that can be filed is in response to the first agency of original jurisdiction adjudication on a particular claim. The only limitation involves the necessity to file the NOD in response to “an adjudicative determination” made by the Regional VA activity. Such a reading is supported by agency practice which over the years has, at the very least, been informal and unstructured.

In Erspamer v. Derwinski, 1 Vet.App. 3, 8 (1990), the Court stated:

The trigger for a Notice of Disagreement is an adjudication decision ... In view of the two BVA remands for development of additional evidence, there is real potential that there will be subsequent adjudication [and that] a new Notice of Disagreement might be filed ... [which could be the basis for] ... appellate jurisdiction.

(emphasis added).

Thus, the Court has already clearly expressed the view that there can be more than one NOD filed under certain circumstances with respect to the same claim.

Moreover, as part of the Act, Congress reenacted § 4005 of Title 38, with several changes not pertinent here. In Isaacs v. Bowen, 865 F.2d 468, 473 (2d Cir.1989), the court stated:

A recent statement of the basic doctrine [of legislative reenactment] is that when the agency charged with the implementation of a statute has purported to interpret it by promulgating regulations, and Congress — without overruling or clarifying the agency’s interpretation— later amends the statutory scheme, the agency view is then deemed consistent with Congress’ objectives. Although accurate, this formulation does not adequately define the contours of the doctrine, which the Supreme Court expressed in this fashion: ‘[w]hen a Congress that re-enacts a statute voices its approval of an administrative or other interpretation thereof, Congress is treated as having adopted that interpretation, and this Court is bound thereby.’ United States v. Board of Comm’rs, [435 U.S. 110, 134, 98 S.Ct. 965, 980, 55 L.Ed.2d 148 (1978) ]. This suggests that a test is required to ascertain whether Congress has spoken clearly enough to *43constitute acceptance and approval of the administrative interpretation. Mere reenactment is insufficient. It must also appear that Congress expressed approval of the agency interpretation. That is to say, the doctrine applies when Congress indicates not only an awareness of the administrative view, but also takes an affirmative step to ratify it. In short, to construe an agency’s interpretation as Congress’ will we must find a manifestation of congressional approval.

(citations omitted).

We believe that the Isaacs test for application of the doctrine of legislative reenactment is met in this case. When Congress passed the Act, it made no change affecting the Regulation which had been in effect since 1963 and of which it must have been aware, given the relationship between 38 U.S.C. § 4005 and the Regulation. More importantly, Congress specifically provided the Court with jurisdiction based on the filing date of an NOD, thus taking the affirmative step necessary to ratify the definition of an NOD contained in the Regulation.

The Court holds that any NOD which meets the requirements of the Regulation is valid for purposes of conferring jurisdiction. We now turn to a discussion of how this holding affects the cases under consideration.

The Whitt case

In January 1988, appellant filed a reopened claim with the Chicago, Illinois, Regional Office seeking entitlement to a permanent and total disability rating for pension purposes. On August 12, 1988, the Regional Office adjudicated the reopened claim and denied the appellant pension benefits. The appellant received notification from the Regional Office of the denial decision in a letter dated August 19, 1988. On August 26, 1988, the appellant submitted a VA Form 21-4138, Statement in Support of Claim, to the Regional Office disagreeing with the denial and requesting a personal hearing. The Regional Office issued a Statement of the Case on September 26, 1988. On October 21, 1988, the appellant appeared before a Hearing Officer and presented testimony concerning his pension claim.

On January 3, 1989, the appellant received notification that the Hearing Officer had continued the denial of pension benefits. Having received notification of the Hearing Officer’s decision, on January 5, 1989, the appellant submitted another VA Form 21-4138 to the Regional Office, expressing dissatisfaction with the decision to continue the denial of benefits. After the BVA, in its decision of June 15, 1989, denied appellant entitlement to a permanent and total disability rating for pension purposes, appellant filed a timely Notice of Appeal with the Court.

The Secretary filed a motion to dismiss for lack of jurisdiction, asserting that the only valid NOD was the first VA Form 21-4138 filed on August 26, 1988, prior to the statutorily mandated filing start date of November 18, 1988.

We disagree. While it is true that the appellant did file an NOD prior to November 18, 1988, it is also true that the VA Form 21-4138 filed on January 5,1989, met all the criteria for an NOD set out in the Regulation. It was a written communication from the claimant expressing dissatisfaction and a desire for review of the Hearing Officer’s decision. Most importantly, the primary purpose of the Hearing Officer was to adjudicate the appellant’s claim and his decision to continue the denial of benefits was an adjudicative determination within the meaning of the Regulation. See Veterans Benefits Administration Circular 20-89-11 (March 26, 1990). The Court holds that the appellant did file an NOD on or after November 18, 1988, and that the Court thus has jurisdiction to review the BVA decision of June 1989.

The Secretary is ordered to file a designation of record on appeal within .30 days.

The Williams Case

In a rating decision dated February 19, 1987, the San Francisco, California, Regional Office awarded the appellant a 10-percent disability rating for his service-connected Post Traumatic Stress Disorder (PTSD). In a letter dated March 23, 1987, *44the appellant notified the Regional Office that he wished to appeal the rating. On June 8, 1987, the Regional Office issued a Statement of the Case.

On February 10, 1988, the appellant filed a VA Form 21-4138, Statement in Support of Claim, and a brief with the Regional Office. After receiving a report of a psychiatric examination concerning the appellant, the rating board in the Regional Office prepared another rating decision dated October 3, 1988, increasing the disability rating from 10 percent to 50 percent. The appellant received notification of this new adjudicative determination by letter dated November 1, 1988.

On February 17,1989, the appellant filed another VA Form 21-4138 along with another brief with the Regional Office “in support of appeal for rating increase.” The Regional Office issued a Supplemental Statement of the Case on April 14, 1989. The BVA in its decision dated September 5, 1989, denied the appellant entitlement to an increased disability rating for his PTSD from the 50 percent awarded by the Regional Office in its October 3, 1988 decision.

The appellant filed a timely Notice of Appeal with the Court and the Secretary moved to dismiss for lack of jurisdiction, alleging that appellant’s NOD was jurisdic-tionally ineffectual as it was filed prior to November 18, 1988.

By its rating action of October 3, 1988, the Regional Office granted the appellant entitlement to an increased disability rating for PTSD. This rating action constituted an adjudicative determination. In February 1989, the appellant filed both a VA Form 21-4138 and a brief with the Regional Office, expressing dissatisfaction with this adjudication. Since these submissions met all of the criteria set forth in the Regulation, they constitute a valid NOD to the assignment of the 50-percent rating for the appellant’s PTSD. Thus, the Court holds that it has jurisdiction to review the September 1989 BVA decision which denied the appellant entitlement to an increase in his 50-percent disability rating.

The Secretary is ordered to file a designation of record on appeal within 30 days.

The Davis case

The appellant, the veteran’s widow, reopened her claim for benefits in early 1988 by filing an application with the Houston, Texas, Regional Office for entitlement to service connection for the cause of the veteran’s death. The Regional Office denied appellant’s reopened claim on April 18, 1988. In June 1988, the appellant filed an NOD as to this decision. In response, the Regional Office issued a Statement of the Case on July 15, 1988, limited to a discussion of the Regional Office’s decision that the appellant had not submitted new and material evidence which would support an award of service connection for the cause of the veteran’s death. In September 1988, the appellant submitted a VA Form 1-9, Appeal to Board of Veterans Appeals, to the Regional Office asking for BVA review. In this document she raised for the first time the issue of whether negligent medical care provided to her deceased husband in a VA hospital caused his death. When the Regional Office processed the VA Form 1-9, it recognized that the appellant had raised a new basis for benefits. Treating the appeal as a new claim, the Regional Office proceeded to adjudicate for the first time the appellant’s entitlement to benefits under the criteria governing this type of claim set forth in 38 U.S.C. § 351 (1988), and implemented by 38 C.F.R. §§ 3.358, 3.800 (1989). On September 22, 1988, the Regional Office rating board prepared a rating determination denying appellant benefits under these provisions. The Regional Office notified the appellant of this decision by letter dated October 14, 1988. On November 2, 1988, the appellant’s representative submitted a VA Form 1-646, Statement of Accredited Representative in Appealed Case, to the Regional Office. In this submission, the representative stated that the issue on appeal to the BVA is “[sjervice connection for cause of death under 38 CFR 3.800 [sic].” As indicated, this regulation implements the provisions of § 351 by addressing whether the veteran’s death while receiving treatment in a VA hospital resulted from negligence, *45accident, or improper care. Upon receipt of the November 2, 1988, YA Form 1-646, the Regional Office issued a Supplemental Statement of the Case to appellant on November 22, 1988. The appellant submitted a VA Form 21-4138, Statement in Support of Claim, dated December 20, 1988, disagreeing with the finding that her husband’s death had not resulted from negligence and requesting BVA review.

On February 6, 1989, the representative submitted a memorandum to the Regional Office, referencing the October 14, 1988, YA letter to the appellant and requesting that the memorandum be considered an NOD to the denial of benefits under § 3.800. On October 12, 1989, the BVA denied the appellant’s reopened claim of early 1988 for entitlement to service connection for the cause of the veteran’s death. While the BVA did note the appellant’s negligence claim, it declined to decide the issue, instead concluding that “it is to the appellant’s advantage to consider the issue on the basis of service connection and not on the basis of entitlement to benefits under 38 U.S.C. § 351.” Harry R. Davis, loc. no. 929434, at 2 (BVA Oct. 12, 1989).

The appellant filed a timely Notice of Appeal with the Court and the Secretary moved to dismiss for lack of jurisdiction. While acknowledging that two documents had been filed that might have been NOD’s, each on a separate claim, the Secretary, nevertheless, asserted that since both documents had been filed prior to November 18, 1988, the Court lacked jurisdiction over both claims.

In this case, the facts disclose that there are two separate claims, multiple adjudications thereon by the Regional Office, and two separate NOD’s as defined by the Regulation filed in response thereto. Neither NOD, however, is sufficient to provide the Court with jurisdiction in that each was filed prior to November 18, 1988.

The first claim is a reopened claim for service connection for cause of death filed in early 1988. The adverse adjudication thereon occurred on April 18,1988, and the NOD with respect thereto was filed on June 6, 1988.

The second claim was filed in September 1988 for negligent medical care in a VA hospital causing death, a claim separate from and independent of the first claim. The adverse adjudication on this claim occurred on September 22, 1988, and the NOD with respect thereto was filed on November 2, 1988.

The real dispute between the parties revolves around which document constitutes the NOD to the adverse adjudication in the second claim. While it is true that the appellant’s representative, in his November 2, 1988 filing of VA Form 1-646, inaccurately characterized the issue as one involving service connection rather than negligence, the reference to 38 C.F.R. § 3.800 leaves no doubt that the appealed issue included cause of death from medical negligence in a VA hospital. And while it is also true that the representative did not characterize his filing as an NOD, the document, nevertheless, met the requirements of the Regulation. It was a written communication. It came from the claimant’s representative. It expressed dissatisfaction and disagreement with the adverse Regional Office adjudicative determination of September 22, 1988, notice of which was given by the Regional Office to the claimant by letter dated October 14, 1988. Lastly, as there is no requirement that the NOD have any special wording, the reasonable construction of the document is that it requested review of the September 22, 1988, adverse determination. Because the VA Form 1-646 filed November 2, 1988, already constituted the NOD that pertained to this specific adjudicative determination, VA Form 21-4138 dated December 20, 1988, and submitted by the appellant, and the February 6, 1989, filing of a memorandum by her representative, cannot also constitute NOD’s to the same adjudicative determination. While there can be more than one effective NOD involving a particular claim, there can only be one effective NOD with respect to each adjudicative determination of an agency of original jurisdiction and that must, of necessity, be the first document filed which meets the requirements of the Regulation. For the reasons *46stated above, the motion of the Secretary is granted and the appeal dismissed for lack of jurisdiction.

The Stokes Case

In December 1986, the appellant reopened his claim with the Montgomery, Alabama, Regional Office seeking entitlement to service connection for his multiple sclerosis. The Regional Office denied the reopened claim by letter dated December 30, 1986.

In April 1987, the veteran submitted a VA Form 21-4138, Statement in Support of Claim, which could be construed as an NOD. The Regional Office responded by letter dated July 16, 1987, informing the appellant that no further action could be taken on his claim. The appellant submitted another VA Form 21-4138 on July 29,1987, stating that he disagreed with the conclusions concerning his claim for benefits. The Regional Office wrote to the appellant again on August 25, 1987, explaining why the reopened claim remained denied. On September 16, 1987, the appellant responded by submitting yet another VA Form 21-4138 in which he continued to disagree with the denial of benefits for his multiple sclerosis. On September 23, 1987, the appellant’s representative submitted a memorandum to the Regional Office, referring to the appellant’s disagreement with the denial of benefits and requesting a Statement of the Case. On December 16, 1987, the Regional Office rating board prepared a rating decision, denying the reopened claim.

The Regional Office sent the appellant a Statement of,the Case in September 1988 to which the appellant responded by filing a VA Form 1-9, Appeal to the Board of Veterans Appeals, the same month. On this form, the appellant indicated a desire to appear at a personal hearing to be conducted by the Regional Office. Such a hearing was held on November 16, 1988, in which appellant testified and submitted written statements from persons having knowledge of his physical health before and after his period of military training. Although the Hearing Officer then denied the appellant entitlement to service connection for his multiple sclerosis on December 9, 1988, no notification of this decision was apparently mailed to the appellant or his representative until April 3, 1989.

In March 1989, the appellant’s representative filed a VA Form 1-646, Statement of Accredited Representative in Appealed Case, with the Regional Office, expressing disagreement with a January 4, 1988, rating decision which is not part of the record presently before the Court. While the document also referred to the hearing held before the Hearing Officer on November 16, 1988, no reference was made to the decision of the Hearing Officer. On April 3, 1989, the Regional Office mailed notice to the appellant that the Hearing Officer had denied his claim for service connection for multiple sclerosis. On December 28, 1989, the BVA denied the appellant service connection for his multiple sclerosis and the appellant filed a timely Notice of Appeal with the Court.

The Secretary moved to dismiss for lack of jurisdiction, contending that no jurisdictionally effective NOD was filed on or after November 18, 1988. The appellant, however, contends that the VA Form 1-646 filed in March 1989 with the Regional Office constituted a jurisdictionally effective NOD.

Because this document disagrees only with the purported rating decision of January 4, 1988, however, it is not sufficient to provide jurisdiction. That rating decision is not before the Court. It is referenced only in the March 1989 VA Form 1-646 and nowhere else in the record. No mention of it is made elsewhere by the appellant or anywhere by the Secretary.

Even if this rating decision were before the Court, 38 U.S.C. § 4005(b)(1) and 38 C.F.R. § 19.129 (1989) require that an NOD be filed within one year from the date of mailing of the notice of determination. Although we do not know precisely when notice of the purported January 4, 1988, rating decision was mailed to the appellant or his representative, this March 1989 NOD may very well fail to be valid regarding this decision because of the one-year time requirement.

47Had the March 1989 VA Form 1-646 disagreed with the adjudicative determination of the Hearing Officer which was rendered December 9, 1988, and mailed to the appellant April 3, 1989, it would have provided the Court with jurisdiction. Or, for that matter, had any other document been timely filed by the appellant, prior to the BVA decision and, which met the requirements of the Regulation with respect to the December 9, 1988, adjudication, it would have provided the Court with jurisdiction. Why an NOD was not filed regarding this adjudication is not known. However, the VA Form 1-646 which was filed in March 1989 is not such a document. While it referred to the hearing, it did not in anyway disagree with the decision emanating from it. Perhaps, given the fact that the Regional Office did not mail notification of its decision until April 1989, there was no awareness of the decision when the VA Form 1-646 was filed. Nevertheless, the Regulation requires a written communication expressing disagreement with an adjudicative determination, not simply a statement of awareness that such adjudication is in progress.

Thus, for the reasons stated, the Court does not have jurisdiction to review the BVA decision of December 28, 1989, because no jurisdictionally effective NOD was filed on or after November 18, 1988. The motion of the Secretary to dismiss the appeal is granted.

Whitt v. Derwinski, 1 Vet. App. 94, decided 1990-12-21.

STEINBERG, Associate Judge, dissenting:

I disagree with the majority’s decision to deny the Secretary’s motion for review en banc in Whitt v. Derwinski, and Williams v. Derwinski, 1 Vet.App. 40 (1990). I believe that Whitt was wrongly decided and that Williams may have been.

I also believe that en banc review is necessary here because the Court’s decision depends on an unfortunate method of statutory construction, which may be cited here or elsewhere as precedent. I refer to the Court’s dispositive reliance on a definition (not even a statutory one) to determine the operative effect of statutorily-contemplated action (here the filing of a notice of disagreement) with inadequate regard for the statutory purpose established for the definition or, for that matter, the entire statutory scheme or its underlying purpose.

SUMMARY

The holding that this Court has jurisdiction over the appeal in Whitt is not consonant with the statutory scheme, or Congress’ intent in enacting it, in the Veterans’ Judicial Review Act, Pub.L. 100-687, 102 Stat. 4105 (1988) (VJRA). Section 402 of the VJRA provides that judicial review “shall apply with respect to any case in which a notice of disagreement [with the VA regional office determination] is filed under section 4005 of title 38, United States Code, [with that office] on or after ... [November 18, 1988].” VJRA, § 402, 102 Stat. at 4122 (emphasis added). In making the filing of a section 4005 notice of disagreement (NOD) after November 17, 1988, an essential event in order to vest this Court with jurisdiction over an appeal from a Board of Veterans’ Appeals (BVA) decision, Congress chose an action by a claimant that was a prerequisite to obtaining review of the case by the BVA — that is, a meaningful, necessary action by the claimant.

Whitt, however, holds that an entirely superfluous January 5, 1989, document filed by the appellant was adequate to provide this Court with jurisdiction over the appeal. That disagreement document served no procedural purpose whatsoever that I can divine. It was surely not a prerequisite to obtaining BVA’s review. The appellant’s appeal to the BVA would have gone forward, without the filing of that document, based on the NOD filed on August 26, 1988.

Regarding the decision in Williams, I believe the issues involved need further consideration before deciding whether the February 17, 1989, disagreement document filed by the appellant provided this Court with jurisdiction over his appeal. In my view, this Court’s'jurisdiction in Williams turns in large part on whether the appellant’s appeal to the BVA would under the law and valid regulations have gone forward, after his rating was increased to 50 percent by the Regional Office, without the filing of the February 17, 1989, or any subsequent, document disagreeing with the 50-percent rating. If it would have, then Williams was wrongly decided. If there is a valid statutory and regulatory basis for determining that the appeal would have been abandoned under that circumstance, then I believe Williams was correctly decided.

*96DISCUSSION

The Whitt Case

On August 19, 1988, appellant Whitt received notification from the Regional Office that his reopened claim for a total disability rating for pension purposes had been denied. On August 26, 1988, the appellant submitted a VA Form 21-4138 stating: “I disagree with the decision of the VA letter of August 19, 1988. Please send me a ‘Statement of the Case’ and I request a personal hearing”. Preliminary Record at Exhibit 1. A Statement of the Case was issued by the Regional Office on September 26, 1988. The personal hearing requested by the appellant was conducted by a single hearing officer on October 21, 1988. On that same date the appellant filed his “substantive appeal” on a VA “Appeal to the Board of Veterans Appeals” form. On January 3, 1989, the appellant received notification from the hearing officer that “the evidence of record including the testimony presented at the hearing does not warrant a change in our previous determination.... Since there has been no change in our previous determination your case is being forwarded to the BVA for review.” Id. at Exhibit 6. On January 5, 1989, the appellant submitted another VA Form 21-4138, expressing dissatisfaction with the continued denial. The BVA denied the claim in a decision issued on June 15, 1989, and the appellant filed a timely Notice of Appeal (NOA) with the Court.

The Secretary filed a motion here to dismiss for lack of jurisdiction, contending that because the NOD in the case was filed prior to November 18, 1988, the Court lacked jurisdiction over the appeal. The Court, holding that “the definition of an NOD, at 38 C.F.R. § 19.118 (1989) (Regulation), is dispositive of whether we have jurisdiction”, found that the appellant’s January 5, 1989, disagreement document filed with the Regional Office met all the requirements set out in that regulatory definition, and, therefore, concluded that a valid post-November 17, 1988, NOD, providing this Court with jurisdiction, had been filed. Whitt, 1 Vet.App. at 41, 43.

The Court stated that nothing in the language of the Regulation “suggests that the only NOD that can be filed is in response to the first agency of original jurisdiction adjudication on a particular claim. The only limitation involves the necessity to file the NOD in response to ‘an adjudicative determination’ made by the Regional VA activity.” Id. at 42. The Court concluded that “the primary purpose of the Hearing Officer was to adjudicate the appellant’s claim and his decision to continue the denial of benefits was an adjudicative determination within the meaning of the Regulation.” Id. at 43.

What the Court has done here is to apply a definition to determine the operative effect of an action without regard to the purpose for which the definition was established. Definitions in statutes are not themselves operative provisions of law. See Sutherland Stat. Const § 27.02, at 459 (4th ed. 1985) (“courts are not bound to follow a statutory definition where obvious incongruities in the statute would thereby be created, or where one of the major purposes of the legislation would be defeated or destroyed”). A statutory (or, as here, regulatory but arguably ratified by Congress) definition is no more than an apposi-tional phrase to be inserted, for interpretive purposes, after the defined term in the operative statutory provisions.

Here the operative statutory provisions occur in the 38 U.S.C. § 4005 (1988) language quoted below. The purpose of the NOD, to which VJRA section 402 refers as one “filed under section 4005”, is to “initiate” BVA “appellate review” (38 U.S.C. § 4005(a) (1988)) by letting the Department of Veterans Affairs (VA) know of the intent to appeal within one year from the date of VA’s “mailing of notice of the result of initial review or determination [by the VA regional office].” 38 U.S.C. § 4005(b) (1988). Thus, the NOD is to obtaining BVA review what an NOA under 38 U.S.C. § 4066 (1988) is to obtaining review in this Court if filed “within 120 days after the date on which notice of the decision is mailed [by the BVA].” Just as there generally is no need to file more than one NOA *97to obtain review here, so there generally is no need to file more than one NOD to obtain BVA review. Although the particular facts of a case, and Williams may be such a case, might call for an exception to the general rule, I find nothing exceptional about the facts in Whitt.

In using as a jurisdictional prerequisite to taking an appeal here the filing of the NOD after a date certain, Congress chose an action which claimants are required to take within a one-year period in order to obtain appellate review by the BVA. 38 U.S.C. § 4005(b) (1988).

The process for appealing to the BVA set out in 38 U.S.C. § 4005 (1988) is as follows: subsection (a) provides that “appellate review [to the BVA] will be initiated by a notice of disagreement and completed by a substantive appeal [both filed by the claimant] after a statement of the case is furnished [by a VA regional office] as prescribed in this section.”

Subsection (b) provides that the “notice of disagreement shall be filed within one year from the date of [VA’s] mailing of notice of the result of initial review or determination [at the VA regional office].”

Subsection (c) provides that generally “if no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or determination shall become final”.

Subsection (d)(1) provides that “where the claimant ... files a notice of disagreement with the decision of the agency of original jurisdiction [the VA regional office], such agency will take such development or review action as it deems proper under the provisions of regulations not inconsistent with this title [38]. If such action does not resolve the disagreement either by granting the benefit sought or through withdrawal of the notice of disagreement, such agency shall prepare a statement of the case.”

Subsection (d)(3) provides that “the claimant will be afforded a period of sixty days from the date the statement of the case is mailed to file the formal appeal.”

In its opinion, the Whitt panel stated:

When Congress passed the [VJRA], it made no change affecting the Regulation [defining an NOD] which had been in effect since 1963 and of which it must have been aware, given the relationship between 38 U.S.C. § 4005 and the Regulation. More importantly, Congress specifically provided the Court with jurisdiction based on the filing date of an NOD, thus taking the affirmative step necessary to ratify the definition of an NOD contained in the Regulation.

Whitt, 1 Vet.App. at 43.

This analysis is fine as far as it goes. But it fails to go far enough. For, just as Congress “ratified” the regulatory definition of an NOD, so, too, did Congress, in enacting VJRA section 402 with a specific reference to section 4005 while at the same time amending parts of section 4005 in the same statute, make very clear that the NOD referred to was one filed for the purpose (contemporaneously unchanged by Congress) specified in section 4005. There is absolutely no indication in the VJRA or its legislative history that the NOD referred to in section 402 could be a document with the sole function of conferring appellate jurisdiction on this Court. Under section 4005, the only purpose of the NOD is to “initiate” an appeal to the BVA. As far as I can tell, the document Mr. Whitt filed in January, subsequent to the notice from the hearing officer, served no purpose in “initiating” or obtaining BVA appellate review.

Section 4005(a) provides that “each appellant will be accorded hearing and representation rights pursuant to the provisions of this chapter and regulations of the [Secretary].” 38 U.S.C. § 4005(a) (1988). VA regulations provide that “a hearing on appeal shall be granted if an appellant or a representative expresses a desire to appear in person.” 38 C.F.R. § 19.157(a) (1989). Whitt, as part of his appeal, requested a personal hearing and was entitled to such a hearing under the applicable law and regulation as part of the appellate review initiated by his August NOD. Whether or not the decision of the hearing officer was (as the Court concluded in Whitt, 1 Vet.App. at *9843 a separate adjudication, Whitt had already initiated his appeal from the August 19, 1988, determination of the Regional Office by filing his August 26 NOD. (The hearing officer certainly recognized this when he advised Whitt in the January 3, 1989, letter that his case was “being forwarded to the BVA for review.” Preliminary Record at Exhibit 6.) I can find no requirement — and the panel decision does not cite one — that the appellant in order to continue his appeal had to file another NOD following the hearing. Consequently, unless the Regional Office had granted him the pension benefits he sought,1 his appeal would have gone forward to the BVA regardless, just as the Regional Office had already advised him, because the BVA appeals process had already been initiated by his August 1988 NOD.

The Williams Case

On February 19,1987, appellant Williams was awarded a 10-percent disability rating by the Regional Office. On March 23, 1987, the appellant notified the Regional Office by a letter titled “NOTICE OF DISAGREEMENT” that he “wish[ed] to appeal the decision ... regarding Compensation for Service connected ‘Post-Traumatic Stress Disorder’.” Appellee’s Motion to Dismiss, to Stay Further Proceedings, and to Set Aside the Court’s Previous Order to Designate the Record on Appeal at Exhibit 2. A Statement of the Case, which section 4005(d)(1) provides is to follow an NOD, was issued by the Regional Office on June 8, 1987. On February 10, 1988, the appellant filed a VA Form 21-4138 and a “Brief in Support of Appeal for Rating Increase” (this document appears to be his “substantive appeal” under section 4005(d)(3)), contending that “the veteran has a severe impairment of his ability to maintain effective or favorable relationships and has a pronounced impairment in his ability to obtain or retain employment. Therefore, he should be awarded a 70% rating.” Id. at Exhibits 4, 5.

After reviewing a VA psychiatric examination diagnosis of the appellant, the Regional Office increased the 10-percent rating to 50 percent. This October 3, 1988, rating decision stated: “this [50-percent rating] is considered a substantial grant .of benefits sought on appeal.” Id. at Exhibit 6. VA notified the appellant of the increased rating in a letter dated November 1, 1988. That letter provided in part:

Please let us know whether this decision satisfies the purpose of your notice of disagreement or whether you wish to continue with your appeal. In the absence of a reply within 30 days, it will be assumed that this allowance meets your contentions, and your notice of disagreement will be considered withdrawn. Such withdrawal would be subject to your right to reactivate the appeal any time during the remainder of the appeal period.

Id. at Exhibit 7 (emphasis added). On February 17, 1989, well after the 30-day deadline the VA had imposed, the appellant filed another VA Form 21-4138 and an updated “Brief in Support of Appeal for Rating Increase” advising VA that he “wish[ed] to continue with his appeal as he [felt] a rating of 70% more adequately represented] the degree of his disability.” Id. at Exhibits 8, 9. The Regional Office issued a Supplemental Statement of the Case on April 14, 1989. See 38 C.F.R. § 19.122 (1989). On September 5, 1989, the BVA issued a decision denying an increase of the 50-percent rating. The appellant filed a timely NOA here, and the Secretary moved to dismiss for lack of jurisdiction, contending that the NOD was filed prior to November 18, 1988.

The Court, applying the same analysis it had applied in Whitt, held that the Regional Office determination increasing the rating from 10 percent to 50 percent “constituted an adjudicative determination” under 38 C.F.R. § 19.118 (1989). Williams, 1 Vet.App. at 44. (It is difficult to quarrel with that characterization of the Regional Office’s action.) Therefore, the Court con-*99eluded that the February 17, 1989, filing was a valid NOD, expressing dissatisfaction with the 50-percent rating, and provided this Court with jurisdiction. Id. at 44.

It is important to note that the Court’s holding in Williams is totally consistent with VA’s own advice to Mr. Williams in its November 1, 1988, letter to him. Under VA’s interpretation of its procedure (as articulated in that letter), the March 23,1987, NOD had been constructively “withdrawn” on December 1, 1988, because more than 30 days had passed; and the February 17, 1989, document must have been a new NOD, as contemplated by the language in the November 1 letter that “such withdrawal would be subject to your right to reactivate the appeal any time during the remainder of the appeal period.”2 Appel-lee’s Motion to Dismiss at Exhibit 7. The only way to “reactivate the appeal” under section 4005 would be by filing an NOD.

In my view, the fundamental issue that must be resolved in order to determine whether the appellant’s February 17, 1989, disagreement ' document provided this Court with jurisdiction is whether the February 1989 disagreement was necessary in order to continue the appeals process. If the appeal would have gone forward without any further action by the appellant, i.e., without the February 17, 1989, or some other subsequent, filing, then the February 17, 1989, filing was not a necessary action and, under the analysis set forth earlier in this opinion regarding Whitt, did not provide this Court with jurisdiction over the appeal.

If, on the other hand, appellate review would not have gone forward unless the appellant expressed dissatisfaction with the 50-percent rating, then the February 17, 1989, filing was a necessary action, the type of action contemplated by Congress in enacting VJRA section 402, and provided this Court with jurisdiction over the appeal.

The answers to these questions turn on whether VA’s description in its November 1 letter of the appellate procedure applicable to Williams was correct as a matter of law and valid regulation, or, alternatively, if not, whether VA may now disavow its earlier advice.

The ultimatum with which VA confronted Mr. Williams in the November 1 letter— ‘if you don’t tell us within 30 days that you wish to continue your appeal, it will be withdrawn’ — does not seem to be one authorized either by the statute or the applicable regulation. Section 4005(d)(1), quoted above, specifically refers to “withdrawal of the notice of disagreement”. 38 U.S.C. § 4005(d)(1) (1988). The statute does not explicitly limit withdrawal to the claimant, but that appears to be the plain import.

Indeed, VA has so interpreted the statute in the applicable regulation, which provides:

Withdrawal may be by the appellant or the authorized representative except that a representative may not withdraw either a notice of disagreement or substantive appeal filed by the appellant personally. The agency of original jurisdiction may not withdraw a notice of disagreement or a substantive appeal after the filing of either or both.

38 C.F.R. § 19.125 (1989).

Thus, we have the Regional Office in its November 1 letter advising the appellant of a procedure to be followed in his claim that seems to be contrary to law and regulation.3 The Secretary seems to have con*100ceded as much by stating, in the Memorandum in Support of Appellee’s Motion for Review En Banc and to Stay Further Proceedings at 3, the following:

An appeal continues until concluded by a BVA decision or until withdrawn, in writing, by the appellant. 38 C.F.R. § 19.-125. Accordingly, for VA to accept an NOD without written withdrawal of an already pending one on the same issue would be an ultra vires act.

(Emphasis in original.)

The subset of issues presented here is fascinating:

Does VA have statutory authority and, if so, valid regulatory authority to require a claimant, in order to initiate a BVA appeal under section 4005 — that is, as a jurisdictional prerequisite to BVA review — to file a second NOD following an award of part of the claimed benefit (Williams had sought a 70-percent rating and received a 50-percent rating)?

If not, can VA deny that a document is an NOD which it had told the claimant quite explicitly would be an NOD, when its advice was contrary to law and regulation? That is, is VA here equitably estopped from claiming that the February 17, 1989, disagreement document is not an NOD when, according to its November 1, 1988, advice to him, his March 23, 1987, NOD was “constructively” withdrawn?

I do not attempt to resolve definitively the questions presented here, but merely point out that I believe those issues need to be resolved before a determination regarding our jurisdiction may properly be reached in Williams.

Response to Judge Kramer’s Separate Opinion

In his response to this dissenting opinion, Judge Kramer makes three arguments which I will answer briefly.

Judge Kramer first suggests that section 4005 does not expressly state that an NOD may “only be used to initiate [BVA] appellate review.” That’s true enough; if it did, this case would long since have been resolved. In the absence of such crystal clarity, the question is: What is the meaning of the words “filed under section 4005” in VJRA section 402? The panel opinion has created an extra-statutory NOD, which is inconsistent with the full statutory context and the underlying statutory purpose.

Judge Kramer next points to language in section 4005(b)(2) that he reads as showing “that Congress contemplated the possibility of more than one NOD within the context of a single claim.” Separate opn., infra, p. 102. But, as Judge Kramer recognizes later in his opinion, I do not contend that a second NOD may never be necessary as to a particular claim. See infra p. 102. Hence, if it is the case that Congress contemplated more than one NOD “within the context of a single claim” (Separate opn., infra, p. 102), that does not detract from my analysis or conclusion.

Finally, Judge Kramer asserts that “[pjerhaps the most compelling argument against ... [my dissenting] view ... arises from the November 1, 1988, letter” from VA to Williams (id.) presenting him with the dubious ultimatum that I discuss at length above, see supra pp. 99-100. Judge Kramer views this letter as making “clear that VA practice in certain circumstances requires the filing of an NOD for a purpose other than initiation of an appeal.” Separate opn., infra p. 102. Although VA never explicitly told Williams that what he needed to file if 30 days elapsed was a second NOD, I certainly agree that the VA letter so implied. And that is exactly my point. VA could require a second NOD in order to re-initiate the appeal only if VA could lawfully withdraw the initial NOD, thereby having de-initiated the appeal that that NOD had initiated. Hence, the “VA practice” to which Judge Kramer points, assuming for the moment that it is a lawful one (which I seriously question, see my discussion supra pp. 99-100 and especially note 3), makes exactly the opposite point he seeks to use it for.

Judge Kramer is absolutely correct about one thing: “the very premise upon which [my] dissent rests ... [is] that the *101only purpose of the NOD is to initiate an appeal to the BVA.” Separate opn., infra, p. 102. His attempt to find another purpose for what he considers a subsequent NOD in Williams points up the failure to explain, in either the panel decision or the separate opinion, how the superfluous document filed in Whitt can be an NOD “filed under section 4005”, as VJRA section 402 requires in order to vest jurisdiction here.

CONCLUSION

Under the Court’s analysis, whether or not an appellant can have his case heard by this Court could depend on whether the appellant happened to file a totally superfluous document — one that he was not required to file and one which served no purpose in obtaining appellate review by the BVA. Congress in choosing the post-November 17, 1988, filing of the NOD “under section 4005” as an event necessary to provide this Court with jurisdiction selected an action it regarded as legally necessary to obtain appellate review by the BVA. Subsections (a) and (c) which Congress (in the VJRA) left undisturbed in section 4005 (while amending subsection (d)) make filing an NOD a prerequisite to obtaining BVA review. If one is not filed within the one-year period, the VA regional office determination is generally final and not directly appealable to the BVA. See 38 U.S.C. § 4005(c) (1988).

What the Court has done here is to establish another kind of NOD — one not “under section 4005” as VJRA section 402 requires, but one the sole function of which is to secure judicial review. This might be a sound public-policy result, but it plainly is not the one Congress chose in enacting the VJRA.

In Whitt, the disagreement filed by the appellant on January 5, 1989, surely was not a prerequisite to obtaining review by the BVA, and, therefore, should not be interpreted as an NOD providing this Court with jurisdiction. To demonstrate the truth of this first statement — that the second NOD was not a prerequisite to obtaining BVA review — one need only imagine how solicitous this Court would be toward Mr. Whitt if a year had passed from the hearing officer’s affirmance without Whitt filing any document and the BVA had then denied him a review. Undoubtedly, this Court would find that the initial NOD had initiated the appeal (since, on the panel’s own analysis, the August 26, 1988, NOD was also clearly an NOD which met the terms of the Regulation), just as the hearing officer had suggested to Whitt, and would thus order the BVA to consider the case.

In Williams, it is unclear whether the filing of the February 17, 1989, disagreement document was a step lawfully required to continue BVA appellate review— as VA itself told Williams it was. Further consideration should be undertaken before a determination is made whether this Court has jurisdiction over that appeal.

Finally, nothing in this opinion should be understood as contending that there can be only one NOD filed in a case under section 4005. There may be cases where BVA appellate review can lawfully be said to be precluded unless a subsequent NOD is filed. Perhaps Williams is such a case. If, after BVA appellate review has been initiated by the filing of an NOD, the issue involved in the claim truly changes such that BVA appellate review of that issue could not lawfully go forward without the filing of another NOD, then more than one NOD would be necessary in such a case and the required later NOD would vest jurisdiction here if filed after November 17, 1988.

For the above reasons, I respectfully dissent from the Court’s denial of review en banc in the Whitt and Williams cases. KRAMER, Associate Judge, filed the following separate opinion on December 21, 1990:

KRAMER, Associate Judge: Having joined in the Court’s decision to deny the Secretary’s motion for review en banc in Whitt v. Derwinski, and Williams v. Derwinski, 1 Vet.App. 40 (1990), this opinion is written separately in order to respond briefly to the dissenting opinion filed by Associate Judge Steinberg.

*102The gravamen of Judge Steinberg’s dissent is that the “only purpose” of a Notice of Disagreement (NOD) is to ‘initiate’ an appeal to the [Board of Veterans’ Appeals],” (BVA), Dissenting opinion at 97, and that unless it does so, it cannot be a valid NOD for this Court’s jurisdictional purposes. This analysis appears flawed.

.First, while 38 U.S.C. § 4005 (1988) does provide that appellate review is to be initiated by an NOD, 38 U.S.C. § 4005(a), nothing in § 4005 states that an NOD can only be used to initiate appellate review. Section 4005 does not define an NOD or in any way seek to otherwise limit its utilization. It does, however, contain a provision that

“[n]otices of disagreement and appeals must be in writing and may be filed by the claimant [or an authorized agent for the claimant]. Not more than one [agent] will be recognized at any one time in the prosecution of a claim.”

38 U.S.C. § 4005(b)(2) (1988) (emphasis added). The word “notices” is plural yet the words “claimant” and “claim” are singular. The most reasonable construction of this provision is that Congress contemplated the possibility of more than one NOD within the context of a single claim. It is this construction which the Veterans Administration (now the Department of Veterans Affairs) (VA) regulation defining an NOD follows and which is the basis of the Court’s decision in Whitt. See 38 C.F.R. § 19.118 (1989) (An NOD is a “written communication from a claimant or the representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction.”) Thus, it is the import of both the statute, and the VA regulation derived from it, that an NOD can be filed for a purpose other than the initiation of an appeal.

Second, the November 1, 1988 letter from the VA to the appellant Williams advising him that his 10% disability rating had been increased to 50% (Williams had originally requested a 70% disability rating) stated in part:

Please let us know whether this decision satisfies the purpose of your notice of disagreement or whether you wish to continue with your appeal. In the absence of a reply within 30 days, it will be assumed that this allowance meets your contentions, and your notice of disagreement will be considered withdrawn.

Prelim. R. at Exhibit 7. The response of a veteran to the type of VA statement above would certainly constitute an NOD as defined by 38 C.F.R. § 19.118. Thus, it is clear that VA practice in certain circumstances requires the filing of an NOD for a purpose other than the initiation of an appeal.

Third, and most important for our discussion here, is the statement in the dissent that:

[N]othing in this opinion should be understood as contending that there can be only one NOD filed in a case.... There may be cases where BVA appellate review can lawfully be said to be precluded unless a subsequent NOD is filed.... If, after BVA appellate review has been initiated by the filing of an NOD, the issue involved in the claim truly changes such that BVA appellate review of that issue could not lawfully go forward without the filing of another NOD, then more than one NOD would be necessary in such a case and the required later NOD would vest jurisdiction [with this Court] if filed after November 17, 1988.

Dissenting opinion at 101 (emphasis added). Judge Steinberg acknowledges here that a valid NOD can be filed “after BVA review has been initiated,” id. (emphasis added), and thus destroys the very premise upon which his dissent rests — that the only purpose of the NOD is to initiate an appeal to the BVA.

For the reasons stated above, I respectfully disagree with the dissenting opinion and vote to deny en banc review.

. Whitt sought VA non-service-connected pension benefits based on total disability and low income; he either was or was not entitled to VA pension. Unlike the benefits Williams was seeking, Whitt could not have received a partial award of VA pension benefits.

. Under this analysis, the one-year “appeal period” would have begun to run on the date of VA’s mailing to the appellant of the November 1, 1988, letter. See 38 U.S.C. § 4005(b) (1988); 38 C.F.R. § 19.129 (1989).

. This is not to say that VA may not properly seek clarification from a claimant in this kind of situation as to whether a partial award (Mr. Williams sought a 70-percent rating and received a 50-percent rating) is satisfactory and the claimant wishes to abandon the appeal to the BVA. It is the ultimatum — that silence means withdrawal of the NOD — which appears to be unlawful. So, although VA may properly ask for clarification from a claimant, it seems doubtful to me that it may lawfully penalize the claimant for not providing it.

Even though here the claimant had already acted in such a way — by specifically seeking a 70-percent rating — as to put VA on notice that a 50-percent rating would not be satisfactory, it may be the correct operative assumption that any claimant seeking service connection is, un*100less he or she specifies to the contrary, always seeking a 100-percent rating.

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*95Associate Judges KRAMER and STEINBERG reserve the right to file separate opinions at a later date.

The foregoing Order was amended, as follows, on December 7, 1990:

It is ORDERED, sua sponte, that the Court’s order dated December 6, 1990, is amended to reflect that Associate Judge Steinberg voted to grant the motion for en banc review.

STEINBERG, Associate Judge, filed the following separate opinion on December 21, 1990: