Citation Nr: 0002518 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 98-18 516 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder and, if so, whether all the evidence both old and new warrants the grant of service connection. 2. Entitlement to service connection for a stomach disorder. REPRESENTATION Appellant represented by: Marine Corps League ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran has verified active duty service from July 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in New Orleans, Louisiana, which denied a claim by the veteran, submitted in July 1973, seeking entitlement to service connection for a stomach disorder and seeking to reopen with new and material evidence a claim of entitlement to service connection for a low back disorder. Although the RO issued a letter to the veteran in September 1973, that letter provides no notice of or reasons for any decision pertaining to his claims. See 38 C.F.R. § 3.103(b) (1999). The Board notes that the veteran, also in his July 1973 claim, sought to reopen with new and material evidence a claim of entitlement to service connection for a left ankle disorder. As indicated above, that claim has not been considered by the RO and, thus, is referred back to the RO for proper action. REMAND The veteran contends, in essence, that he currently has a low back disorder and stomach disorder and that these conditions are related to his active duty service. He is seeking to reopen previously-denied claims for service connection for those disabilities with new and material evidence. After careful review of the claims file, the Board finds that this case is not yet ready for appellate review. Initially, the Board notes that the law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C.A. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (formerly Court of Veterans' Appeals) (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). However, regardless of whether a claim is found to be well grounded or not, and prior to that determination, the VA has a duty to notify the veteran of the evidence necessary to complete his or her claim, if that claim is incomplete. 38 U.S.C.A. § 5103(a) (West 1991). The Court has held that the duty to inform includes advising the veteran that evidence, the existence of which the VA has notice and which may make a claim plausible, was needed to complete his claim. Robinette v, Brown, 8 Vet. App. 69, 80 (1995); see also Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under § 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained); Epps v. Brown, 9 Vet. App. 341 (1996) (§ 5103(a) duty attaches in cases where the record references other known and existing evidence that might pertain to the claim under consideration). In this case, the claims file shows numerous due process deficiencies that must be rectified prior to appellate review. First, the claims file indicates that the veteran served on active duty with the United States Marine Corps from July 1967 to January 1969. That information is provided on a DD Form 214. However, that DD Form 214 indicates that the veteran was "recommended for reenlistment" and that the discharge was "not a final discharge." This is consistent with the veteran's service medical records, which show medical treatment subsequent to January 1969. They indicate that the veteran was released from active duty in June 1969. The veteran, in his July 1973 Application for Compensation or Pension, VA Form 21-526, indicated that he was discharged from active duty in June 1969. In light of these facts, it appears that the veteran may have a period of active service which has not been verified. Therefore, any additional periods of active duty must be verified, and any associated service medical records obtained, prior to appellate review of this case. Second, the Board notes that, during the appellate process, the veteran has indicated numerous places and dates of medical treatment, both private and VA. Specifically, in a February 1980 Application for Compensation or Pension, VA Form 21-526, he stated that he underwent treatment for at least his stomach condition at the VA Medical Center (VAMC) in New Orleans, Louisiana; the Lane Memorial Hospital in Zachary, Louisiana; and the Our Lady of the Lake, in Baton Rouge, Louisiana. More recently, in a March 1998 Statement in Support of Claim, VA Form 21-4138, he asserted additional medical treatment at the VAMC in New Orleans, Louisiana, and the VA outpatient clinic in Baton Rouge, Louisiana. The assertion of recent VA medical treatment is confirmed by an August 1995 VA admission report showing that the veteran was seen for lumbar radiculopathy. Despite being informed of this potential evidence, the claims file contains no attempt by the RO to obtain such records and no notice to the veteran informing him that he should submit such evidence in order to complete his claim. 38 U.S.C.A. § 5103(a) (West 1991). Because such records may be available and pertinent to this claim, an attempt by the RO should be made to obtain such records prior to appellate review. Third, the Board notes that, in a March 1998 VA Form 21-22, the veteran appointed the Marine Corps League as his accredited representative. However, the claims file contains no Statement of Veterans Service Organization as Claimant's Representative, VA Form 646, from that organization. Moreover, there is no indication that the representative was provided an opportunity to put forth argument on the veteran's behalf. The RO must provide the representative with the opportunity to do so. See 38 C.F.R. § 20.600 (1999); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, Subchapter VIII, par. 8.31 (August 26, 1996). Overall, the Board finds that the VA's duty to inform the veteran pursuant § 5103(a) has not been satisfied. An attempt to obtain verification of all periods of active duty (with any associated service medical records) and copies of any and all private and VA medical records that the veteran indicated were available should be accomplished. In addition, the veteran's accredited representative should be given the opportunity to submit argument (e.g. VA Form 646) on behalf of the veteran. Robinette v, Brown, 8 Vet. App. 69, 80 (1995); Epps v. Brown, 9 Vet. App. 341 (1996); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam) (VA has duty to consider all evidence in its constructive possession). The Board makes no finding as to whether the veteran has presented well grounded claims, invoking a duty to assist. See 38 U.S.C.A. § 5107(a) (West 1991). Accordingly, further appellate consideration will be deferred and the case in hereby REMANDED to the RO for the following development: 1. The RO should attempt to verify the veteran's period(s) of active duty. Specifically, it should verify any and all active service from January 1969 through June 1969. If additional service is verified, the RO should attempt to obtain any available service medical records not already of record. Copies of all correspondences made and records obtained, including a DD Form 214, should be added to the claims folder. 2. The RO should contact the veteran and provide him the opportunity to submit any additional medical evidence in support of his claims, or to provide the names, dates, and places of any medical treatment so that the RO may attempt to obtain such records. Specifically, it should request that he provide any and all records of medical treatment for a low back disorder and a stomach disorder since discharge from service. Records from the Lane Memorial Hospital in Zachary, Louisiana, and the Our Lady of the Lake, in Baton Rouge, Louisiana, should be submitted. The RO should also attempt to obtain all VA records since 1969 from the VAMC in New Orleans, Louisiana, and the VA outpatient clinic in Baton Rouge, Louisiana. Copies of all correspondences made and records obtained should be added to the claims folder. 3. The RO should provide the veteran's representative, currently the Marine Corps League, with the opportunity to submit argument, including a VA Form 646, on the veteran's behalf. Any argument submitted should be made part of the claims folder. 4. After the above development has been completed, the RO should review the claims of (1) whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a low back disorder; and, (2) entitlement to service connection for a stomach disorder. It is important that the new and material evidence analysis be conducted pursuant to 38 C.F.R. § 3.156(a) (1999), and in light of the United States Court of Appeals for the Federal Circuit's decision in Hodge v. West, 155 F.3d 1356 (1998) (that a claim raise a 'reasonable possibility' of changing the previous disallowance is not a reasonable interpretation of the regulatory provisions pertaining to new and material evidence), and the Court's decisions in Winters w. West, 12 Vet. App. 203 (1999), and Elkins v. West, 12 Vet. App. 209 (1999) (If new and material evidence has been presented, a claim must still be well-grounded before it may be reopened and evaluated on the merits). The claim of entitlement to service connection for a stomach disorder should be considered on both a direct and presumptive basis. 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 5. If any action remains adverse to the veteran, he and his representative should be furnished a Supplemental Statement of the Case which summarizes the pertinent evidence, fully cites the applicable legal provisions, and reflects detailed reasons and bases for the decision(s) reached. Thereafter, the veteran and his representative should be afforded the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. By this REMAND the Board intimates no opinion, either factual or legal, as to the ultimate determination warranted in this case. 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. A. BRYANT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).