Citation Nr: 0003459 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-34 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of service connection for a left eye disability. 2. Entitlement to service-connected for a psychiatric disability as secondary to service-connected back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly Jevtich, Counsel INTRODUCTION The veteran had active service from April 1968 to April 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 1997 rating decision by the Huntington, West Virginia Regional Office (RO) of the Department of Veterans Affairs (VA) which increased the veteran's disability rating for his service-connected back disability to 40 percent, denied service connection for a psychiatric disorder as secondary to service-connected back disability, determined that new and material evidence had not been submitted to reopen the claim of service connection for a left eye disability, and denied entitlement to nonservice- connected pension benefits. In a January 1997 letter, the veteran was advised of this decision and of his procedural and appellate rights. In February 1997, a notice of disagreement was received as to the issues of service connection for a psychiatric disorder as secondary to service-connected back disability, whether new and material evidence had been submitted to reopen the claim of service connection for a left eye disability, and entitlement to nonservice-connected pension benefits. In February 1997, the RO granted entitlement to nonservice-connected pension benefits; this resolving that issue. In February 1997, a statement of the case was issued on the other two issues. In November 1997, a supplemental statement of the case was issued on the issue of service connection for a psychiatric disorder as secondary to service-connected back disability. In a November 1997 rating decision, the prior denial of service connection for a psychiatric disorder as secondary to service-connected back disability was confirmed and continued. In addition, entitlement to an increased rating for back disability was denied. In December 1997, a VA Form 9 was received which addressed the issue of service connection for a psychiatric disorder as secondary to service-connected back disability; thus that document was accepted as a substantive appeal as to that issue. In April 1998, a statement from the veteran was receiving indicating that he was seeking an increased rating for his back disability. Since this was within one year of the November 1997 rating decision and notification thereof, this statement is accepted as a notice of disagreement as to that issue. In August 1998, a supplemental statement of the case as to the issue of service connection for a psychiatric disorder as secondary to service-connected back disability was issued. In September 1998, the prior denial of an increased rating for back disability was confirmed and continued. FINDING OF FACT An adequate substantive appeal was not received as to the issue of whether new and material evidence has been submitted to reopen the claim of service connection for a left eye disability. CONCLUSION OF LAW The issue of whether new and material evidence has been submitted to reopen the claim of service connection for a left eye disability is not in appellate status. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.203, 20.302(b) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Appellate review is initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished. The notice of disagreement must be filed within one year of the date of mailing of the result of the initial review or determination. A substantive appeal must be filed within 60 days from the date the RO mails the statement of the case to the appellant or within the remainder of the one year period from the date of the notification of the determination, whichever period ends later. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.302(a), (b). In a January 1997 rating decision, in pertinent part, the RO determined that new and material evidence had not been submitted to reopen a claim for service connection for a left eye disability. In a January 1997 letter, the veteran was notified of this decision and of his procedural and appellate rights. In February 1997, a notice of disagreement was received and, in July 1997, a statement of the case was issued. In December 1997, a VA Form 9 was received. This document was received within the period which would be considered timely for a substantive appeal. However, while this document addressed another service connection matter, it did not address the issue of whether new and material evidence had been submitted to reopen a claim for service connection for a left eye disability. The Board finds that the VA Form 9 is inadequate to serve as the substantive appeal as to the new and material issue because the veteran simply did not address that issue. 38 C.F.R. § 20.203 provides that a decision as to the adequacy of allegations of error of fact or law in a substantive appeal will be made by the Board. When the Board raises the issue of adequacy of the substantive appeal, the appellant and representative, if any, will be given notice of the issue and a period of 60 days following the date on which such notice is mailed to present written argument or to request a hearing to present oral argument on this question. The date of mailing of the notice will be presumed to be the same as the date of the letter of notification. In compliance with this regulation, the Board sent the veteran the required notification in September 1999 and informed him that he had 60 days to respond to that notice. The veteran did not respond. Thus, pursuant to 38 C.F.R. § 20.203, the veteran was given notice of the inadequacy of the substantive appeal and 60 days following such notice to present a written argument or evidence or to request a hearing to present testimony and evidence on the question. The veteran failed to respond. The Board has found that the VA Form 9 received in December 1997 is inadequate to serve as a substantive appeal as to the issue of whether new and material evidence has been submitted to reopen the claim of service connection for a left eye disability. In light of the foregoing, the Board concludes that the issue of whether new and material evidence has been submitted to reopen the claim of service connection for a left eye disability is not in appellate status for lack of an adequate substantive appeal. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.202, 20.203, 20.302 (b). ORDER The appeal is dismissed as to the issue of whether new and material evidence has been submitted to reopen the claim of service connection for a left eye disability. REMAND Psychiatric Disability At the outset, the Board notes that at this time, the Board does not make any determination as to whether the veteran's claim for service connection is well-grounded. The Board further notes that in claims that are not well-grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim. However, the VA may be obligated under 38 U.S.C.A. § 5103(a) (West 1991) to advise a claimant of evidence needed to complete his application. This obligation depends upon the particular facts of the case and the extent to which the Secretary of the Department of Veterans Affairs has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Court of Veterans Appeals (Court), has stated that for a claim to be well-grounded, there must be competent evidence of a current disability, evidence of incurrence or aggravation of a disease or injury in service, and competent medical evidence of a nexus between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, the Court has also stated that when it is contended that a service-connected disability caused a new disability, competent medical evidence of a causal relationship between the two disabilities must be submitted to establish a well-grounded claim. Jones (Wayne L.) v. Brown, 7 Vet. App. 134 (1994). In addition, secondary service connection may be established on the basis of aggravation when aggravation of a veteran's nonservice- connected condition is proximately due to or the result of a service-connected condition. Allen v. Brown, 7 Vet. App. 439 (1995). In this case, the veteran has been diagnosed as currently having a psychiatric disability. With regard to the medical nexus prong of the well-grounded test, in April and October 1998 statements, the veteran alleged that his private psychiatrist, F. Joseph Whelan, M.D., had told him that his service-connected back disability was having a negative effect on his nerves. In sum, the veteran contends that service connection is warranted for his psychiatric disability on the basis of aggravation since he alleges that his service-connected back disability aggravates his non- service psychiatric disability. In light of the veteran's assertions that Dr. Whelan has stated that his service-connected back disability aggravates his psychiatric disability which would provide a basis for secondary service connection to be granted, the Board finds that the veteran should be provided an opportunity to contact his private physician, Dr. Whelan, and obtain such a statement as well as the supporting clinical records for such an opinion. Back Disability As noted in the introductory portion of this decision, in a November 1997 rating decision, entitlement to an increased rating for back disability was denied. In April 1998, a statement from the veteran was receiving indicating that he was seeking an increased rating for his back disability. Since this was within one year of the November 1997 rating decision and notification thereof, this statement is accepted as a notice of disagreement as to that issue. As such, the RO is now required to send the veteran a statement of the case as to the issue of entitlement to an increased rating for lumbosacral strain in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. In this regard, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that where a Notice of Disagreement has been submitted, the veteran is entitled to a Statement of the Case. The failure to issue a Statement of the Case is a procedural defect requiring a remand. Manlincon v. West 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). Accordingly, this matter is REMANDED for the following action: 1. The RO should afford the veteran an opportunity to contact his private physician, Dr. Whelan, and obtain a statement regarding the relationship, if any, that exists between the veteran's service-connected back disability and his psychiatric disability. Dr. Whelan should also provide the supporting clinical records for such an opinion. These records should be associated with the claims file. 2. The RO should readjudicate the veteran's claim for entitlement to service connection for a psychiatric disability as secondary to service- connected back disability. If the action taken is adverse to the veteran, he and his representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. He should also be afforded the opportunity to respond to that supplemental statement of the case before the claim is returned to the Board. 3. The RO should send the veteran a statement of the case as to the issue of entitlement to an increased rating for lumbosacral strain in accordance with 38 U.S.C.A. § 7105 and 38 C.F.R. §§ 19.29, 19.30. If the veteran perfects his appeal by submitting a timely and adequate substantive appeal, then the RO should return the claim to the Board. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals