BVA9504409 DOCKET NO. 92-18 104 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a psychiatric disability, and if so, whether the entire record establishes a basis for the grant of service connection. 2. Entitlement to service connection for a cardiovascular disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. B. Werdal, Associate Counsel INTRODUCTION The veteran served on active duty from July 1968 to July 1970, and from March 1972 to March 1975. This matter came before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a decision dated March 9, 1990, from the San Diego, California, Regional Office (RO). The notice of disagreement was received in February 1991. The statement of the case was sent to the veteran in April 1991. The substantive appeal was received in May 1991. This matter was previously before the Board and was remanded in October 1993. The Board observes that the veteran's claim for service connection for a low back disability was denied in a decision dated April 9, 1991. His notice of disagreement regarding that claim was received by the RO in May 1991, but to date a statement of the case addressing that claim has not been prepared and provided to the veteran and his representative. That claim is not inextricably entwined with the claims in appellate status, so a remand is not required under Harris v. Derwinski, 1 Vet.App. 180 (1991). However, the matter is referred to the RO for preparation of a statement of the case addressing the claim for service connection for a low back disability. The veteran and his representative are also to be advised of the necessity of filing a timely substantive appeal if he wishes to proceed with an appeal of that decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends he incurred a psychiatric disability while serving on active duty as the result of stress. He asks that he be afforded the benefit of the doubt. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's basic claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the previously denied claim of entitlement to service connection for a psychiatric disability is reopened. FINDINGS OF FACT 1. The veteran's claim for service connection for a psychiatric disability was denied in a rating decision dated July 30, 1970. He was informed of that decision, and of his appellate and procedural rights, in a letter dated August 7, 1970. A notice of disagreement was not filed in the one-year period following notification of the adverse determination of July 1970, and that decision became final. 2. The evidence submitted by the veteran in support of his attempt to reopen his claim is new and material. CONCLUSION OF LAW The previously denied claim of service connection for a psychiatric disability was a final decision, but has been reopened by new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.156 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran served on active duty from July 1968 to July 1970, and from March 1972 to March 1975. In a decision dated July 30, 1970, the RO denied entitlement to service connection for a psychiatric disability, and based that decision on the finding that no psychiatric disability was present when the veteran was separated from active duty. The veteran was notified of that decision, and of his appellate and procedural rights in that regard, in a letter dated August 7, 1970. He did not file a notice of disagreement with that decision, so the July 1970 decision is a final decision and is not subject to review unless new and material evidence reopens the decision. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 20.201 (1994). New and material evidence is evidence not previously submitted to agency decision makers which bears directly and substantially on the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in combination with evidence already of record is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1993). An attempt to reopen a claim is successful if new and material evidence is submitted. Manio v. Derwinski, 1 Vet.App. 140 (1991). If the claim is reopened, all the evidence is reviewed, both old and new, to determine whether the benefit should be granted. An adverse determination regarding either step of the two step process set out in Manio, id., is appealable. The evidence submitted subsequent to the RO's 1970 decision consists of medical records from the veteran's second period of service from 1972 to 1975, hearing testimony, and treatment records reflecting treatment in 1971 for gastroenteritis, in 1982 for stable angina, and beginning in 1990 for psychiatric complaints. All of that evidence is new, as none of it was of record at the time the RO made its 1970 decision. The evidence that has been added to the record significantly changes the matters to be considered in assessing the veteran's claim. He has had an additional period of service, and he has presented medical reports referring to treatment for a psychiatric disorder. This evidence raises a reasonable possibility that a review of the entire record would result in a different outcome. Therefore, the claim is reopened and the Board will review all the evidence to determine whether service connection for a psychiatric disability should be granted. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). ORDER The claim for service connection for a psychiatric disability is reopened and, to this extent only, the appeal is granted. REMAND The Board has determined that the veteran's claim for service connection for a psychiatric disability has been reopened. Before the claim can be reviewed on the merits, it must be determined whether the veteran would be prejudiced by the Board's review without first remanding the case to the RO to develop and adjudicate the claim on the merits. The Board notes that Bernard v. Brown, 4 Vet.App. 384 (1993), provides that to establish no prejudice to the appellant by rendering a decision on the merits of the claim which was denied on the basis of finality, it must be shown that the appellant had sufficient notice and the opportunity to submit evidence and/or argument on that question. In this case, the Board finds that it cannot be said with certainty that the veteran would not be prejudiced if the Board reviewed the merits of the claim based on the record now before it. Therefore, in this case, the Board believes that the veteran should be afforded the opportunity to address his argument to the merits of the claim of service connection for a psychiatric disability now that the claim has been reopened by the Board. In view of the foregoing, the Board has determined that a REMAND in this case is necessary in order to afford the RO the opportunity to adjudicate the merits of the veteran's claim of entitlement to service connection for a psychiatric disability, and to provide adequate notice and opportunity to respond on behalf of the veteran. Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should consider the veteran's claim for service connection for a psychiatric disability in light of all evidence of record, both new and old. In connection with this, the RO should consider all of the veteran's contentions in this case. All indicated action to develop the record should be undertaken. 2. If the determination remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case that fully addresses the issue of service connection for a psychiatric disability. This should contain a summary of additional evidence submitted and considered, citations of applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded an opportunity to respond thereto. The purpose of this REMAND is to afford the veteran due process of law. No action is required of him until further notice. Appellate action on the claim of service connection for a cardiovascular disability is deferred pending completion of the action directed on REMAND. The Board intimates no opinion, either legal or factual, as to the ultimate conclusion warranted in this case. G. H. SHUFELT Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).