## Facts

- A veteran sought VA service-connected disability benefits, later including PTSD.
- A VA regional office denied the PTSD claim in September 1994.
- In October 1994, the veteran’s representative submitted a letter stating the denial was “a little bit premature” and that further development would aid fair evaluation.
- The letter did not expressly request appellate review by the Board of Veterans’ Appeals.
- The veteran took no further action until February 1997, when he applied to reopen the PTSD claim.
- The VA granted service connection for PTSD with an effective date tied to the February 1997 reopening.
- The veteran sought an earlier effective date, arguing the 1994 letter was a valid Notice of Disagreement (NOD) that kept the 1994 claim pending.
- The Board rejected that argument, finding the letter did not satisfy 38 C.F.R. § 20.201’s requirement that an NOD express a desire for Board review.
- The Court of Appeals for Veterans Claims invalidated the “desire for Board review” component of § 20.201 and treated the 1994 letter as a valid NOD.
- The Secretary appealed to the Federal Circuit.

## Issues

1. Whether 38 C.F.R. § 20.201 (1998), requiring an NOD to be reasonably construed as expressing a desire for appellate review, is a permissible interpretation of 38 U.S.C. § 7105 under Chevron.
2. Whether the veteran’s 1994 representative letter qualified as a valid NOD under the governing regulation.

## Decision

- The Federal Circuit held that 38 C.F.R. § 20.201 (1998) is valid and entitled to Chevron deference.
- The court concluded the statute did not unambiguously foreclose the VA’s ability to set minimum content requirements for an NOD.
- The court found the regulation’s “desire for appellate review” requirement reasonable, not arbitrary or capricious, and not contrary to 38 U.S.C. § 7105.
- The court reversed the Veterans Court’s judgment and remanded.
- Because the 1994 letter lacked language reasonably construed as seeking appellate review, it did not satisfy § 20.201 as upheld.

## Legal Principles

- Under Chevron, if a statute leaves ambiguity regarding procedural content requirements, a reasonable agency regulation supplying minimum requirements is entitled to judicial deference.
- For purposes of initiating VA appellate review under the then-applicable regulation, a valid NOD must (1) express dissatisfaction or disagreement with an adjudicative determination and (2) be reasonably construed as expressing a desire for appellate review.
- A regulation may require an expression of intent to enter the appellate process to distinguish between requests for further agency-level development and initiation of Board review, so long as the requirement is not unduly technical and permits flexible wording.

## Conclusion

The Federal Circuit upheld the VA’s regulatory requirement that an NOD convey a desire for appellate review, reversed the Veterans Court’s invalidation of that requirement, and remanded; the representative’s 1994 letter, requesting further development without indicating intent to seek Board review, did not constitute a valid NOD under the regulation.


Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002)