          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            NO.14-4085

                                  BARRY D. BRAAN, APPELLANT,

                                                 V.

                                   ROBERT A. MCDONALD,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal from the Board of Veterans' Appeals


(Argued June 30, 2016                                                    Decided August 26, 2016)

        Landon E. Overby, with whom Robert V. Chisholm, Sarah K. Barr, and Jenna E. Zellmer,
all of Providence, Rhode Island, were on the brief for the appellant.

       Mark D. Gore, with whom Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant
General Counsel; and Richard A. Daley, Deputy Assistant General Counsel, all of Washington, D.C.,
were on the brief for the appellee.

       Before KASOLD, LANCE, and SCHOELEN, Judges.

       SCHOELEN, Judge: The appellant, Barry D. Braan, through counsel, appeals an October 20,
2014, Board of Veterans' Appeals (Board) decision in which the Board denied the appellant's wife,
Ruth Braan, entitlement to Civilian Health and Medical Program of the Department of Veterans
Affairs (CHAMPVA) benefits under 38 U.S.C. §1781. Record of Proceedings (R.) at 2-10. This
appeal is timely, and the Court has jurisdiction to review the Board's October 2014 decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). This matter was referred to a panel of the Court with oral
argument to address whether CHAMPVA benefits extend to a veteran (or veteran's spouse) when
the veteran is treated "as if" service connected under 38 U.S.C. § 1151. Additionally, the parties
were directed to address whether the veteran has standing to bring a claim before the Court when the
veteran seeks CHAMPVA benefits on behalf of his wife. For the reasons discussed below, the Court
holds that the Board did not have jurisdiction to decide the matter, and the Board's ultra vires
decision will be set aside. Furthermore, because the Court lacks jurisdiction over the merits of the
case, it will dismiss the appeal.


                                                I. BACKGROUND
         Mr. Braan is a veteran who served on active duty in the U.S. Army from October 1970 to
October 1972. R. at 24. In March 1995, Mr. Braan underwent a cardiac catheterization procedure.
R. at 735. He subsequently submitted a disability compensation claim for a cardiovascular
condition. R. at 851-72. In June 1995, the regional office (RO) awarded a 20% disability rating
pursuant to 38 U.S.C. § 1151, finding that "the evidence of record indicates the condition is a
complication of the cardiac catheterization which [Mr. Braan] underwent on [March 13, 1995]." R.
at 535. In May 1998, the RO increased Mr. Braan's disability rating for "aortic aneurysm" to 100%.
R. at 363-69.1
         In March 2010, Mrs. Braan applied for CHAMPVA benefits.2 An April 2010 decision from
the VA Health Administration Center (HAC), addressed to "Ruth M. Braan," stated that Mrs. Braan
was not eligible for CHAMPVA benefits because although her "sponsor's disability may have been
adjudicated by [VA] as being service connected, . . . VA benefits granted under [section 1151] do
not include CHAMPVA . . . ." R. at 1729. In September 2010, Mr. Braan filed a "Privacy Release
Form" with his congressional representative on behalf of his wife, requesting an appeal of the denial
of CHAMPVA benefits. R. at 320. In October 2010, Mr. Braan's Congressman forwarded a memo
and Mr. Braan's Privacy Release Form to VA. R. at 319. In January 2011, the VA HAC issued a
Statement of the Case (SOC) in Mrs. Braan's appeal, but addressed the SOC's cover letter to Mr.

         1
            Mr. Braan's cardiac disability was originally identified as "status post aortic dissection, descending thoracic,
aorta." R. at 535. In May 1998, the RO identified his disability as an "aortic aneurysm" and granted him a 100% rating.
R. at 363-69. A June 2010 RO certification identifies Mr. Braan as having a permanent and total disability rating with
an effective date of December 1, 2007. R. at 322. Later documents from 2013 and 2014, including the decision on
appeal, continued Mr. Braan's 100% permanent and total rating, but again characterized the appellant's condition as
"status post aortic dissection, descending thoracic, aorta." R. at 7, 137. The Court is satisfied that VA used these
disability descriptions interchangeably and that Mr. Braan currently has a 100% permanent and total disability rating for
his cardiac condition.
         2
            The application for CHAMPVA benefits (VA Form 10-10d) lists Ruth Braan as the "applicant" and Mr. Braan
as the "sponsor." R. at 1732. Boxes are provided below the signature line for information regarding the signer if the
signer is "a person other than an applicant," and the boxes are filled out with Mr. Braan's information and signature. Id.
Despite the presence of Mr. Braan's signature, the appellant concedes that Mrs. Braan was the original applicant.
Appellant's Response at 3 ("Although Mrs. Braan initially filed a claim for CHAMPVA benefits, the [appellant] was
listed as the sponsor and signed the form.").

                                                             2
Braan's address and evidently construed his Privacy Release Form as a Notice of Disagreement
(NOD). R. at 1703-08 ("Dear Mr. Braan, . . . [w]e have carefully reviewed the correspondence and
supporting documentation in which you disagree with our decision that you are not a qualifying
sponsor . . . .").
        In January 2012, Mr. Braan filed a VA Form 9, purporting to appeal the CHAMPVA benefits
denial on behalf of his wife. R. at 294. In the VA Form 9, Mr. Braan stated: "As a 100% disabled
vet[eran] I am entitled to CHAMPVA benefits for my spouse. [Section] 1151 claims are to be
treated as service connected." Id.
        In the October 20, 2014, decision on appeal, the Board identified the appeal as Mr. Braan's
and concluded that Mrs. Braan was not entitled to CHAMPVA benefits because although section
1151 provides that Mr. Braan's total and permanent disability is treated "as if" it were a service-
connected disability, the disability was not actually "incurred in or aggravated . . . in [the] line of
duty in the active military, naval, or air service." R. at 6-7 (quoting 38 U.S.C. § 101(16)).
        As support for its conclusion, the Board pointed to a VA General Counsel advisory opinion
(VAOPGCADV 22-97 (July 31, 1997)) stating that section 1151's "quasi-service-connection"
provides monetary compensation only under chapters 11 or 13 of title 38. R. at 7. Because
entitlement to CHAMPVA is provided under chapter 17 (section 1781), the Board reasoned that
CHAMPVA benefits may not be paid pursuant to section 1151. Id. The Board also cited Mintz v.
Brown, 6 Vet.App. 277 (1994), for the proposition that section 1151's "as-if" service connection
creates entitlement only under chapters 11 and 13. R. at 8.
        Subsequently, Mr. Braan appealed the Board's decision to this Court. On June 6, 2016, the
Court issued an order directing Mrs. Braan, within 7 days of the order, to "file a motion to intervene
as an appellant, if she desires to do so." 06/06/16 Order to Intervene at 1 (citing Padgett v. Peake,
22 Vet.App. 159, 162 (2008) (en banc) (noting that in order to have standing before this Court,
litigants generally must establish the requisite personal interest in the outcome); U.S. Vet. App.
R. 43(b) ("If substitution of a party in the Court is necessary for any reason other than death, the
Court may order substitution on its own initiative or on a party's motion."); cf. FED. R. CIV.
P. 17(a)(3) ("The Court may not dismiss an action for failure to prosecute in the name of the real
party in interest until . . . a reasonable time has been allowed for the real party in interest to ratify,


                                                    3
join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds
as if it had been originally commenced by the real party in interest."); FED. R. CIV. P. 24(b)(1)(B)
(providing for permissive intervention by anyone who "has a claim or defense that shares with the
main action a common question of law or fact")). Mrs. Braan did not file a motion to intervene.


                                II. THE PARTIES' ARGUMENTS
        CHAMPVA, generally, is a "health benefits program in which [VA] shares the cost of certain
health care services and supplies with eligible beneficiaries." CHAMPVA Supplemental Insurance
Plan Features, http://champva.us/, at 1. Specifically, 38 U.S.C. § 1781 provides, in relevant part:
        (a) The Secretary is authorized to provide medical care, in accordance with the
        provisions of subsection (b) of this section, for –
                (1) the spouse or child of a veteran who has a total disability,
                permanent in nature, resulting from a service-connected
                disability . . . .
38 U.S.C. § 1781(a). Mr. Braan argues that he is a qualified sponsor for CHAMPVA purposes
because he is treated as if he had a service-connected disability under 38 U.S.C. § 1151. That statute
provides, in relevant part:
        (a) Compensation under this chapter and dependency and indemnity compensation
        under chapter 13 of this title shall be awarded for a qualifying additional disability
        or a qualifying death of a veteran in the same manner as if such additional disability
        or death were service-connected. For purposes of this section, a disability or death
        is a qualifying additional disability or qualifying death if the disability or death was
        not the result of the veteran’s willful misconduct and—
                (1) the disability or death was caused by hospital care, medical or
                surgical treatment, or examination furnished the veteran under any
                law administered by the Secretary, either by a Department employee
                or in a Department facility as defined in section 1701(3)(A) of this
                title . . . .
38 U.S.C. § 1151(a).
        As to the issue of standing, Mr. Braan maintains that he has standing to bring the
CHAMPVA denial appeal on behalf of his wife because he was "'adversely affected'" by a final
Board decision (Appellant's Response at 2 (quoting 38 U.S.C. § 7266(a))) when the Board denied
his status as a qualifying sponsor for CHAMPVA benefits under 38 U.S.C. § 1781. Appellant's


                                                    4
Response at 2-3. As support for this position, Mr. Braan highlights the Board's statement that
"'quasi-service-connected' status . . . under section 1151 . . . is not a basis for determining that the
veteran is also an eligible CHAMPVA sponsor, for purposes of section 1781." Id. at 3 (quoting R.
at 8). Mr. Braan also states that he has standing because his CHAMPVA sponsor status is his own
legal right and not his wife's. Id.
         Mr. Braan asserts that "Mrs. Braan's entitlement to CHAMPVA benefits and [his] entitlement
to qualifying sponsor status" are "one issue," and VA has treated the case as such throughout the
appeals process. Id. at 5. Mr. Braan argues that if the Court decides he does not have standing, the
Court should nevertheless reach the merits of the case by exercising its "inherent constitutional
power to administer equitable remedies." Id. (quoting Gazaille v. McDonald, 27 Vet.App. 205, 213
(2014) (Greenberg, J., concurring)).
         The Secretary argues that Mr. Braan does not meet the "case or controversy" requirement
under Article III of the U.S. Constitution3 because there is no "injury in fact."4 Secretary's Response
at 2-3. The Secretary asserts that there is no injury in fact because the CHAMPVA benefits belong
to Mr. Braan's wife and not to Mr. Braan. Id. at 3-4. The Secretary then asserts that even if the
Court were to find that Mr. Braan suffered an injury in fact, he would need to establish third-party
standing in order to bring the appeal – which the Secretary claims Mr. Braan cannot establish
because (1) Mr. Braan, who wishes to assert the right, cannot establish a "close relationship with the
person who possesses the right"5; and (2) there is nothing hindering Mrs. Braan from protecting her
own interests. Id. at 6-7 (citing Kowalski v. Tesmer, 543 U.S. 125, 130 (2004); In re Stanley,
9 Vet.App. 203, 213 (1996)). Furthermore, the Secretary states that even if the Court decides that
Mr. Braan does not have standing, there may be procedural remedies that allow the appeal to move


         3
          Though this is an Article I Court, it has adopted the case-or-controversy requirements of Article III courts.
See Mokal v. Derwinski, 1 Vet.App. 12 (1990).
         4
           Under Article III, constitutional standing is present when (1) there is an injury in fact (defined as "an invasion
of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or
hypothetical"); (2) the alleged injury is causally related to the conduct of the defendant; and (3) it is likely that the injury
will be "redressed by a favorable decision." Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (citations omitted).
         5
            The Secretary alleges that in this context, a "close relationship" exists when the "third-party and the would-be
plaintiff are related such that the challenged conduct, as to the would-be plaintiff, serves to impair rights held by the third
party." Secretary's Response at 6 (citing Kowalski v. Tesmer, 543 U.S. 123, 130 (2004)).

                                                               5
forward, depending on how the Court chooses to characterize Mr. Braan's lack of standing.
Id. at 7-13.


                                           III. ANALYSIS
                                                A. Law
        A "claim" is a written request for "determination of entitlement . . . to a specific benefit." 38
C.F.R. § 3.1(p) (2016); see also 38 C.F.R. § 20.3(f) (2016) (defining "claim" as an "application made
under title 38, United States Code, and implementing directives for entitlement to [VA] benefits").
Claims for benefits are submitted to and adjudicated by the RO, which renders a decision on behalf
of the Secretary. See 38 U.S.C. § 5103(a) (noting that the Secretary shall take certain action "[u]pon
receipt of a complete or substantially complete application" for benefits). Once the RO makes its
initial determination as to whether the claimant is entitled to benefits, the claimant (or the claimant's
authorized representative) may file an NOD in order to begin the appeal. 38 U.S.C. § 7105(a)
("Appellate review will be initiated by a[n] [NOD] . . . ."); 38 U.S.C. § 7105(b)(2) ("[NODs], and
appeals, must be in writing and may be filed by the claimant, the claimant's legal guardian, or such
accredited representative, attorney, or authorized agent as may be selected by the claimant or legal
guardian."). The request for "[a]ppellate review will be . . . completed by a [S]ubstantive [A]ppeal
after a[n] [SOC] is furnished as prescribed in [section 7105]." 38 U.S.C. § 7105(a). The law
requires that an SOC be mailed directly to the claimant. 38 U.S.C. § 7105(d)(3) ("Copies of the
[SOC] . . . will be submitted to the claimant and to the claimant's representative, if there is one.").
        "When a claim is properly appealed to the Board, the Board is vested with the jurisdiction
to review '[a]ll questions in a matter which under section 511(a) of [title 38] is subject to a decision
of the Secretary.'" Jarrell v. Nicholson, 20 Vet.App. 326, 331 (2006) (en banc) (quoting 38 U.S.C.
§§ 7104(a), 7105(a)) (citing Bernard v. Brown, 4 Vet.App. 384, 390-91 (1993)). However, nothing
in an NOD or Substantive Appeal could confer jurisdiction upon the Board over a claim that the
Board was never authorized to hear in the first place. See id. at 331. Furthermore, "it is axiomatic
that in the absence of legislation authorizing otherwise, jurisdiction cannot be conferred – nor can
the lack of jurisdiction be waived – by the parties." Id. (citations omitted); see Smith v. Brown,
10 Vet.App. 330, 334 (1997) (vacating as ultra vires a Board decision issued without jurisdiction and


                                                   6
dismissing appeal); see also Plaquemines Port, Harbor & Terminal Dist. v. Fed. Mar. Comm'n,
838 F.2d 536, 542 n.3 (D.C. Cir. 1988) (stating that abandonment of jurisdictional issues does not
confer jurisdiction where none exists and that "[a]gency jurisdiction, like subject matter in the federal
courts, cannot be achieved by consent of the parties").
                                           B. Application of Law to Facts
         The parties offer different procedural approaches to address the standing issue in this case.
Mr. Braan claims that he has standing to appeal his wife's CHAMPVA benefits denial because his
status under section 1151 is at issue. Appellant's Response at 3. The Secretary claims that the
appellant does not have Article III standing, but that if the Court were to find that Mr. Braan did have
such standing, the Court should substitute Mrs. Braan for Mr. Braan in the appeal because (1) she
is a proper beneficiary for CHAMPVA purposes; (2) she filed the original claim, and (3) replacing
his name with hers on the appeal would amount to little more than a clerical correction.6 Secretary's
Response at 7-13. However, both approaches, given the facts of this case, would be legally flawed.
         The facts before the Court are clear: Mrs. Braan filed the original CHAMPVA application
with the VA HAC, as evidenced by the fact that her name and contact information is written under
the "applicant" section of the VA Form 10-10d.7 R. at 1732. After the VA HAC denied benefits to
Mrs. Braan, Mr. Braan filed a Privacy Release Form through his Congressman. R. at 320. The
Congressman forwarded Mr. Braan's Privacy Release Form, along with a letter signed by the
Congressman alleging error in denying the claim, to the VA HAC. R. at 315, 319. The VA HAC
treated the Privacy Release Form and the Congressman's letter as an NOD and issued an SOC.
R. at 1703. Although the SOC was in Mrs. Braan's name (R. at 1705), the cover letter attached to



         6
             The Secretary argues that substitution would be proper under Rule 17(a)(3) of the Federal Rules of Civil
Procedure. FED. R. CIV. P. 17(a)(3) ("The court may not dismiss an action for failure to prosecute in the name of the real
party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join,
or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally
commenced by the real party in interest."). The Court notes that the Federal Rules are only persuasive, and that
substitution would occur here under Rule 43(b) of this Court's Rules of Practice and Procedure. U.S. VET. APP. R. 43(b)
("If substitution of a party in the Court is necessary for any reason other than death, the Court may order substitution on
its own initiative or on a party's motion.").
         7
            Notably, Mr. Braan never argues that he filed an original claim or that he was somehow an appropriate
representative. He states, in no uncertain terms, that "Mrs. Braan initially filed a claim for CHAMPVA benefits" and
that he attempted to appeal on her behalf because the matter is "one issue." Appellant's Response at 3-5.

                                                               7
the SOC was addressed to Mr. Braan, and reads, in relevant part:
         Dear Mr. Braan:

         The [VA HAC] has received a request regarding your spouse's denial of CHAMPVA
         eligibility through Congressman Steny Hoyer's office. We have carefully reviewed
         the correspondence and supporting documentation in which you disagree with our
         decision that you are not a qualifying sponsor and the following has been determined
         . . . a permanent and total disability rating under [section 1151] may not be used as
         a basis for determining the veteran an eligible sponsor under [CHAMPVA].
R. at 1703 (emphasis added). The VA HAC's mailing of the SOC to Mr. Braan, rather than Mrs.
Braan, was improper. See 38 U.S.C. § 7105(d)(3) ("Copies of the [SOC] . . . will be submitted to
the claimant and to the claimant's representative, if there is one."). Moreover, after the SOC was
mailed to Mr. Braan, he, not Mrs. Braan, filed a Substantive Appeal (VA Form 9). When Mr. Braan
took this step (if not when he sought assistance from his Congressman), he effectively became an
interloper. See BLACK'S LAW DICTIONARY 820 (7th ed. 1999) (defining an interloper as "[o]ne who
interferes without justification"). The Board not only failed to identify this defect, it captioned the
appeal before it as Mr. Braan's own appeal.
         Because Mr. Braan, as an interloper, did not have the right to pursue Mrs. Braan's claim, the
Board did not have jurisdiction to hear his appeal of her claim, and, because Mr. Braan had not
submitted a claim, the Board lacked the authority to decide his claim in the first instance. See
38 U.S.C. § 7105(a) ("Appellate review will be initiated by a[n] [NOD] and completed by a
[S]ubstantive [A]ppeal after a[n] [SOC] is furnished as prescribed in this section."); Jarrell and
Smith, both supra. Accordingly, the Board did not have jurisdiction to hear Mr. Braan's appeal.
Brannon v. West, 12 Vet.App. 32, 34-35 (1998) (holding that in the absence of an NOD, the Board
lacks jurisdiction). Because the Board did not have jurisdiction, the Court also has no jurisdiction.
See Jarrell and Smith, both supra; Tablazon v. Brown, 8 Vet.App. 359, 361 (1995) ("Thus, where
VA has failed to procedurally comply with statutorily mandated requirements, a claim does not
become final for purposes of appeal to the Court.").8

         8
            Because the record of proceedings does not contain any evidence that Mrs. Braan's claim was ever placed in
appellate status, the Court makes no finding as to the status or the merits of that claim, and, because Mrs. Braan was
provided the opportunity to intervene but chose not to, we will not further entertain the Secretary's argument that Mrs.
Braan should be substituted in the appeal. The Court notes, however, that it is unclear whether Mrs. Braan ever received
notice of the SOC or the Board decision.

                                                           8
       The Court leaves for another day whether a CHAMPVA sponsor may ever be a proper
claimant for CHAMPVA benefits that are otherwise due his or her spouse or other qualifying
dependent; however, it is undoubtedly improper for a CHAMPVA sponsor to wade into the appeals
stream on behalf of a CHAMPVA beneficiary when that beneficiary has already filed the initial
claim. Accordingly, the Court holds that the Board did not have jurisdiction to hear the appeal, and
the Board's ultra vires decision must be set aside as a nullity and the appeal dismissed. See Breslow
v. Brown, 5 Vet.App. 560, 562 (1993) ("'A void judgment is one which, from its inception, was a
complete nullity and without legal effect.'" (quoting Hooks v. Hook, 771 F.2d 935, 949 (1985))); see
also Smith, supra.


                                       IV. CONCLUSION
       The Court holds that the Board's October 20, 2014, decision was ultra vires and a nullity
because the Board never had jurisdiction over the appeal, and the Court therefore lacks jurisdiction
over the merits of the appeal. Accordingly, the Board's October 20, 2014, ultra vires decision is SET
ASIDE, and the appeal is DISMISSED.




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