Citation Nr: 0428899 Decision Date: 10/21/04 Archive Date: 10/28/04 DOCKET NO. 00-11 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for anxiety reaction. 2. Whether new and material evidence has been received to reopen a claim for service connection for a kidney disorder. 3. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 4. Entitlement to service connection for a heart disorder with inoperable atrial fibrillation. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Michelle L. Nelsen, Counsel INTRODUCTION The veteran had active service from October 1950 to October 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the veteran also perfected an appeal of the RO's October 1999 decision regarding his claim for a thyroid disorder, which found no new and material evidence to reopen the previously denied claim. However, during his September 2000 personal hearing, the veteran submitted a written statement indicating that he wanted to cancel the issue of service connection for hypothyroidism. He reiterated this wish in a November 2000 statement. Therefore, the appeal with respect to this issue is considered withdrawn. See 38 C.F.R. § 20.204 (2003). However, in February 2001, the RO received correspondence from the veteran that is construed as a petition to reopen the claim for service connection for hypothyroidism. There is no indication that the RO has adjudicated this claim. The matter is therefore referred to the RO for the appropriate action. The issue of service connection for a kidney disorder on the merits, as well as the claims for service connection for COPD and a heart disorder, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO has provided all required notice and obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The RO denied service connection for anxiety reaction in rating decisions dated in October 1960, August 1977, and June 1987; the veteran did not appeal any of these decisions. 3. Evidence received since the June 1987 rating decision is not relevant to the issue of service connection for anxiety reaction. 4. The RO denied service connection for a kidney disorder in rating decisions dated in October 1960 and August 1977; the veteran did not appeal either of these decisions. 5. Evidence received since the August 1977 rating decision is new, bears directly on the matter of service connection for a kidney disorder, and is so significant that it must be considered with all the evidence of record in order to fairly adjudicate the appeal. CONCLUSIONS OF LAW 1. The October 1960, August 1977, and June 1987 rating decisions concerning the claim for service connection for anxiety reaction are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.160(d) (2004); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2003). 2. Evidence received since the June 1987 rating decision concerning the claim for service connection for anxiety reaction is not new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2002). 3. The October 1960 and August 1977 rating decisions concerning the claim for service connection for a kidney disorder are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.160(d) (2004); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2003). 4. Evidence received since the August 1977 rating decision concerning the claim for service connection for a kidney disorder is new and material. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002), was enacted during the course of this appeal. It eliminated the requirement for a well-grounded claim, enhanced VA's duty to assist a claimant in developing facts pertinent to his claim, and expanded VA's duty to notify the claimant and his representative, if any, concerning certain aspects of claim development. VA promulgated regulations that implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). Review of the claims folder reveals compliance with the VCAA. First, with respect to the claim for service connection for a kidney disorder, the Board emphasizes that the instant decision is completely favorable to the veteran, such that any noncompliance is not prejudicial to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Concerning the claim for service connection for anxiety reaction, the Board observes that the December 2000 letter to the veteran explains the evidence needed to establish service connection and advises the veteran of the evidence VA will secure in support of the appeal and the evidence and information the veteran is required to provide. The Board finds that this notice complies with the VCAA. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board observes that a recent decision by the U.S. Court of Appeals for Veterans Claims (Court) states that VCAA notice must be provided before the initial unfavorable determination by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO received the veteran's claim in March 1999 and issued its adjudication in October 1999, well before the enactment of the VCAA, such that providing notice of VCAA requirements prior to the initial determination was impossible. In any event, as the Board has already determined that the veteran has received all required VCAA notice, as well as all required assistance, as discussed below, any failure to follow Pelegrini in this case results in no prejudice to the veteran and therefore constitutes harmless error. Bernard, 4 Vet. App. at 392-94. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (holding that the Court must take due account of the rule of prejudicial error when considering compliance with VCAA notice requirements); Stegall v. West, 11 Vet. App. 268 (1998) (where a veteran has not been harmed by an error in a Board determination, the error is not prejudicial); 38 U.S.C.A. § 7261(b) ("Court shall take due account of the rule of prejudicial error"); 38 C.F.R. § 20.1102 (2003) (an error or defect in a Board decision that does not affect the merits of the issue or substantive rights of the appellant will be considered harmless). Also in Pelegrini, the Court held, in part, that a VCAA notice consistent with 38 U.S.C.A. § 5103(a) must also conform with 38 C.F.R. § 3.159(b)(1) and request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini, 18 Vet. App. at 120- 21. In this case, although the VCAA notice letter to the veteran does not specifically contain this request, the Board finds that the veteran was otherwise fully notified of the need to give to VA any evidence pertaining to his claim. That letter specifically identified certain evidence that the RO would secure. It also asked the veteran to identify any other private, VA, or military medical treatment, as well as any other information or evidence he wanted the RO to secure. In addition, the letter asks the veteran to provide any other additional evidence. The RO has properly pursued obtaining all evidence described by the veteran. In this case, the Board finds no indication of defective notice that is prejudicial to the veteran, such that proceeding to evaluate the appeal, if defect can be found, is harmless error. See Bernard, supra; Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). With respect to the duty to assist in connection with the claim for service connection for anxiety reaction, the Board notes that the veteran has submitted some private medical evidence, but that none of that evidence is relevant to this particular claim. In addition, in December 2000 and February 2001, the veteran provided completed authorizations for medical records from VA and private facilities. However, he did not indicate that any of these records were pertinent to the claim for anxiety reaction. VA's duty to obtain private medical records as identified and authorized by the veteran is limited to relevant records. 38 U.S.C.A. § 5103A(b). As there is no indication that any records relevant to the claim for anxiety reaction are outstanding, the Board is satisfied that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board notes that the new regulations redefine "new and material evidence" and clarify the types of assistance VA will provide to a claimant attempting to reopen a previously denied claim. 66 Fed. Reg. at 45,630 (codified as amended at 38 C.F.R. §§ 3.156(a), 3.159(c) (2004)). However, those specific provisions are applicable only to claims filed on or after August 29, 2001. 66 Fed. Reg. at 45,620. The RO received the veteran's petition to reopen these claims in March 1999. Therefore, the amendments are not for application. Analysis The RO originally denied service connection for anxiety reaction and a kidney disorder in an October 1960 rating decision. In an August 1977 rating decision, the RO found no new and material evidence to reopen either claim. In addition, in a June 1987 rating action, the RO found no new and material evidence to reopen the claim for anxiety reaction. The veteran did not appeal any of these decisions. Therefore, the RO's decisions of October 1960, August 1977, and June 1987 are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.160(d) (2004); 38 C.F.R. §§ 20.200, 20.302, 20.1103 (2003). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. 38 U.S.C.A. § 5108. According to VA regulation, "new and material evidence" means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled 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) (2002). See Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). Generally, in determining whether evidence is "new and material," the credibility of the new evidence must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In this case, the Board finds no new and material evidence has been received since the June 1987 rating decision that found no new and material evidence to reopen a claim for service connection for anxiety reaction. Specifically, none of the evidence received since that rating action is relevant to the issue. That is, none of the medical evidence shows a current diagnosis or treatment for anxiety reaction or any psychiatric disability. In fact, during the September 2000 personal hearing, the veteran testified that he was not currently receiving any treatment. Therefore, because none of the evidence received since the June 1987 rating decision bears directly and substantially upon the specific matter under consideration, i.e., whether the veteran has anxiety reaction that is associated with service, the Board finds that none of the evidence is new and material within the meaning of 38 C.F.R. § 3.156(a). Accordingly, the claim is not reopened. 38 U.S.C.A. § 5108. On the other hand, the Board finds that new and material evidence has been received since the August 1977 rating decision that found no new and material evidence to reopen a claim for service connection for a kidney disorder. Specifically, a statement from C. Bash, M.D., dated in September 2000 states that it "is likely that the [veteran's] current renal problems were caused by his chronic sub-optimally treated bladder and kidney infections during service time." This evidence was not previously of record, bears directly and substantially upon the specific matter under consideration, and is so significant that it must be considered with all the evidence of record in order to fairly adjudicate the claim. 38 C.F.R. § 3.156(a). Therefore, the claim for service connection for a kidney disorder is reopened. 38 U.S.C.A. § 5108. ORDER As no new and material evidence has been received, the claim for service connection for anxiety reaction is not reopened. The appeal is denied. As new and material evidence has been received, the claim for service connection for a kidney disorder is reopened. To that extent, the appeal is granted. REMAND As discussed above, the Board has reopened the claim for service connection for a kidney disorder. Therefore, the claim must be considered based on all the evidence of record. The veteran also seeks service connection for COPD and a heart disorder with atrial fibrillation. For each of these issues, the Board finds that a remand is required for additional action by the RO to comply with the VCAA. As discussed above, the VCAA was enacted during the course of this appeal. With respect to notice, the VCAA provides that, upon receipt of a complete or substantially complete application, VA must notify the claimant and his representative, if any, of any information or lay or medical evidence not previously provided that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a). The notice should indicate what information or evidence should be provided by the claimant and what information or evidence VA will attempt to obtain on the claimant's behalf. Id. In this case, the statement from Dr. Bash suggests that the veteran has a kidney disorder. In addition, during the September 2000 personal hearing, the veteran indicated that he was receiving related treatment. However, none of the evidence of record provides any direct evidence of current treatment or a current diagnosis of any kidney disorder. A claim for service connection requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In order to comply with the VCAA, the RO should advise the veteran of the evidence still needed to substantiate his claim for service connection for a kidney disorder. With respect to the duty to assist, the VCAA provides that VA is required to make reasonable efforts to obtain relevant records, including private records, that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(b). VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. 38 C.F.R. § 3.159(c)(1). In December 2000, the RO received from the veteran authorization to obtain records Memorial Hospital of Tampa, St. Joseph's Hospital, Dr. Goldman, and Dr Kreitzer. The veteran indicated that each of these providers had records relevant to an issue on appeal. However, there is no indication that the RO ever sought to obtain these records. Pursuant to the VCAA, such action is required on remand. Finally, the VCAA provides that, in the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d). Such an examination or opinion is necessary to make a decision on a claim if all of the lay and medical evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (3) does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case, Dr. Bash's September 2000 statement raises the possibility that a kidney disorder, COPD, and heart disorder are related to the veteran's period of service. In the November 2000 supplemental statement of the case, issued before the VCAA was enacted, the RO rejected this opinion and denied service connection in each claim. On remand, after completing the development discussed above, the RO should evaluate the evidence and assess whether a medical examination or opinion is necessary to decide the claim and take the appropriate action. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the veteran and his representative and explain that his claim for service connection requires competent evidence of a current diagnosis of a kidney disorder. Pursuant to 38 U.S.C.A. § 5103(a), it should advise the veteran of what types of information or evidence he should provide and what types of information or evidence VA will attempt to obtain on his behalf. It should allow the appropriate period of time for response. 2. The RO should take the necessary steps to attempt to obtain medical records from Memorial Hospital of Tampa, St. Joseph's Hospital, Dr. Goldman, and Dr Kreitzer, as authorized by the veteran in releases received at the RO in December 2000. All attempts to obtain these records, as well as any responses to the requests, should be documented in the claims folder. 3. The RO should then determine whether any additional development is required, to include whether a medical examination or opinion is necessary to decide the claim, as provided by 38 U.S.C.A. § 5013A(d). 4. Then, the RO should readjudicate the issues of service connection for a kidney disorder, COPD, and a heart disorder with inoperable atrial fibrillation. The RO must consider all evidence received since it issued the November 2000 supplemental statement of the case. If the disposition of any claim remains unfavorable, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable opportunity to respond. Thereafter, the case should be returned to the Board for final appellate review, if in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ BETTINA S. CALLAWAY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2