Citation Nr: 0007193 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 96-15 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for vascular-type headaches, currently evaluated as 10 percent disabling. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and C. M. ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The veteran had active military service from December 1971 to December 1973. This matter arises from various rating decisions rendered since September 1995 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in the aggregate, granted an increased rating from noncompensable to 10% for the veteran's service-connected vascular-type headaches, denied service connection for PTSD, and held that new and material evidence had not been submitted to reopen a claim for service connection for an acquired psychiatric disorder. Following compliance with the procedural requirements set forth in 38 U.S.C.A. § 7105 (West 1991), the case was forwarded to the Board of Veterans' Appeals (Board) for appellate consideration of the increased rating issue. The Board reviewed the case, and, in June 1998, remanded the case to the RO for further development and adjudication. In its remand, the Board also noted that the variously couched issue of service connection for an acquired psychiatric disorder had not been developed or certified for appeal, and that the Board, therefore, was without jurisdiction to address it further. Following its action, the RO returned the case to the Board in August 1999 for further appellate disposition. Although the rating decisions rendered by the RO since September 1995 denied the veteran's claim for service connection for PTSD on the merits following de novo review, the Board construes the issue with regard to this disability to be that cited on the cover page of this decision. Additionally, for reasons stated in greater detail in the remand section below, the history of this case indicates that the Board has jurisdiction over that issue. REMAND The Board finds that this case is not yet ready for appellate disposition for the reasons that follow. As a historical matter, the Board notes that the RO first denied the veteran service connection for PTSD in October 1994. The veteran then submitted a notice of disagreement in January 1995, and, in response, the RO furnished the veteran a statement of the case in May of that year. See 38 U.S.C.A. § 7105(a), (d)(1). The veteran did not perfect an appeal to that determination. Id., at (d)(3). The RO then closed the case accordingly. Ibid. In the introduction to its June 1998 remand, the Board indicated that the issue of the veteran's entitlement to service connection for PTSD had not been developed or certified for appeal. This was predicated upon the RO's conclusion that the veteran had failed to timely appeal the October 1994 denial of service connection for that disorder. However, further review indicates that the veteran requested to "reopen my case" in July 1995. This was accompanied by a VA medical report reflecting the veteran's inpatient treatment for psychiatric symptomatology during May 1995. In response, the RO again denied the veteran service connection for PTSD by rating decision dated in September 1995. In March 1996, the veteran submitted a VA Form 9, Appeal to Board of Veterans' Appeals, which could reasonably be construed as a notice of disagreement with the RO's September 1995 denial. In a September 1999 statement, the veteran's representative addressed this procedural history and asserted that the veteran should be provided with a statement of the case on the September 1995 denial. As such, the Board has jurisdiction over this issue, pending the issuance of a statement of the case to the appellant and receipt of her timely appeal in response thereto. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Parenthetically, the Board notes that the RO's 1995 denial of service connection for PTSD was not its first denial with regard to this issue. As such, before either the RO or the Board can address this issue on the merits, it must first be determined that the evidence which served as the basis for that denial was sufficient to reopen the claim as contemplated by 38 U.S.C.A. § 5108 (West 1991). As such, the Board may not proceed to a "merits" determination without first remanding this issue back to the RO for its consideration. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). In response to the Board's June 1998 remand, the RO afforded the veteran a special neurological examination in February 1999. However, as the veteran's representative observed in his July 1999 statement, the "physician apparently included an addendum to his examination report which has not been obtained by the VA, and therefore, is not of record in the claims folder." It was argued that the addendum was in response to the question posed in the Board's remand. A review of the report of the February 1999 VA neurological examination confirms this. Although the addendum subsequently was obtained and reviewed by the RO, the appellant and her representative were not issued a supplemental statement of the case that reflected the additional information contained therein. This must be done when additional pertinent evidence is received following issuance of the most recent statement or supplemental statement of the case. See 38 U.S.C.A. § 7105(d); 38 C.F.R. § 19.31 (1999). Accordingly, remand of the issue of an increased rating for vascular-type headaches is necessary to ensure that the appellant is accorded due process of law. In view of the foregoing, this case is REMANDED to the RO for action as follows: The RO should again review the claims. If the benefits sought on appeal are not granted, both the veteran and her representative should be furnished a supplemental statement of the case. This should include the laws and regulations concerning the "reopening" of a previously denied claim. The supplemental statement of the case should also include a reference to the information contained in the addendum to the February 1999 VA neurological examination report. The veteran and her representative should be informed of the necessity to perfect a substantive appeal with regard to her claim for service connection for PTSD. They should also be informed that this issue will be certified to the Board on appeal only if it is perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Thereafter, subject to current appellate procedures, the case should be returned to the Board for further consideration. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this case. The veteran need take no action unless so informed. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). STEVEN L. COHN Member, Board of Veterans' Appeals 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) (1996).