Oscar F. Fluker appeals an April 6, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying service connection for a psychiatric disorder and a seizure disorder. Oscar F. Fluker, BVA 90-08401 (Apr. 6, 1990). The Secretary of Veterans Affairs (Secretary) has filed a motion for summary affirmance. The Court has jurisdiction of the case pursuant to 38 U.S.C.A. § 7252(a) (West 1991). For the reasons set forth below, the Court vacates the April 1990 BVA decision.
I. FACTUAL BACKGROUND
Appellant served on active duty in the United States Army from November 21, 1961, to January 13, 1967. R. at 75-76. On April 17, 1967, a Veterans’ Administration (now Department of Veterans Affairs) (VA) regional office (RO) denied service connection for residuals of a back and head injury because his discharge from service was under other than honorable conditions. See R. at 99; see also R. at 76. On August 1,1979, following an upgrade in the character of his discharge to a general discharge {see R. at 79, 81, 87, 135), appellant sought to reopen the claims. R. at 99. The RO, however, denied service connection for residuals of a hematoma of the left occipito-parietal region, for a back injury, for a seizure disorder secondary to cerebral concussion, and for a schizophrenic reaction drug induced, with history of passive aggressive personality. R. at 100-01. Appellant did not appeal this determination, and the RO’s rating decision became final. See 38 U.S.C.A. § 7105(b)(1) (West 1991); 38 C.F.R. §§ 20.200, 20.302 (1992). On June 2, 1983, appellant filed an Application for Compensation or Pension. R. at 104. On December 2, 1983, the RO granted entitlement to a non-service-connected pension on the basis of his non-service-connected schizophrenia and seizure disorder. R. at 123. On November 16, 1984, appellant sought to reopen his claim for service connection for a psychosis and for epilepsy. R. at 125. In December 1984, the RO sent notification that it had not reopened the claims because appellant’s evidence was not material to the issue of service connection. R. at 128. On September 24, 1985, appellant wrote to the RO to inquire about the status of his claims, and the RO replied on October 11, 1985, that it had not reopened the claims. R. at 132. On January 24, 1989, appellant sought to reopen his claims for service connection for passive aggressive personality and for epilepsy. R. at 134. On June 6, 1989, the RO sent notification that the “evidence does not warrant any change” in the prior denial of service connection for a nervous condition and for seizures. R. at 145. On April 6, 1990, the Board denied service connection for a psychiatric disorder and for a seizure disorder. Fluker, BVA 90-08401, at 7.
II. ANALYSIS
A. Notice of Appeal
As an initial matter, the Court holds that it has jurisdiction over the instant appeal. The BVA issued its decision on April 6, 1990. Appellant filed his Notice of Appeal (NOA) with this Court on February 25, 1991. Under 38 U.S.C.A. § 7266(a) (West
[W]here an appellant submits clear evidence to the effect that the BVA’s “regular” mailing practices are not regular or that they were not followed, .the Secretary is no longer entitled to the benefit of the presumption [of regularity] and the burden shifts to the Secretary to establish that the BVA decision was mailed to the veteran and the veteran’s representative, if any, as required by 38 U.S.C.[A.] § 7104(e).
Ashley v. Derwinski,
B. Claims
Appellant’s claims for service connection for seizure disorder and for schizophrenia were previously denied in April 1967 (see R. at 99), October 1979 (R. at 101), and in December 1984 (R. at 128). Pursuant to 38 U.S.C.A. § 5108 (West 1991), the Secretary must reopen a previously and finally disallowed claim when “new and material evidence” is presented or secured with respect to that claim. See 38 U.S.C.A. § 7104(b) (West 1991). On claims to reopen previously and finally disallowed claims, the BVA must conduct a two-part analysis. See Manio v. Derwinski,
The evidence presented in connection with the resubmitted claims in 1989 included appellant’s statements on a January
Although new, none of this evidence is material. Appellant’s statements that his psychiatric disorder and seizure disorder are causally related to an in-service head injury are not sufficient to reopen the claim because they are lay assertions of medical causation. See Moray v. Brown,
However, in its April 1990 decision, the Board did not apply the statutory and regulatory framework for considering resubmitted claims. In its decision, the Board stated:
Service connection for residuals of a head injury was denied by a rating action in October 1979. The veteran failed to file a timely appeal from this action and the determination became final. Since the issues of entitlement to service connection for a psychiatric disorder and epilepsy have not previously been before the Board, we will review the issues de novo.
Fluker, BVA 90-08401, at 2. Despite the BVA’s statement to the contrary, appellant’s claims for a psychiatric disorder and for a seizure disorder were considered and denied previously in 1967, 1979, and 1984. Although the claim that was the subject of the October 1979 RO rating decision was styled as a “reopened” claim for “[s]ervice connection for back and head injury” (R. at 99), the RO considered service connection for schizophrenia and for seizure disorder, as demonstrated by its denial of service connection for both conditions (R. at 101). See EF v. Derwinski,
In McGinnis v. Brown,
[jurisdiction does indeed matter and it is not “harmless” when the VA during the claims adjudication process fails to address threshold jurisdictional issues. This is particularly true when the Secretary ignores the mandates of 38 U.S.C.A. §§ 7104(b) and 7105(c) (West 1991) which provide that finally denied claims cannot be reopened without the submission of “new and material evidence” under 38 U.S.C.A. § 5108_ We conclude that the appropriate remedy [when the BVA erroneously reopens a claim and decides*300 a claim on the merits] is not to affirm the BVA decision denying the claim on the merits but to vacate the decision and thereby reestablish the finality of the previous denial.
In this case, the Board altogether disregarded the effect of the previous denials and adjudicated the claims on the merits. Therefore, the Court will vacate the April 1990 BVA decision, “thereby reestablishing the finality of the previous denial.” Ibid.
III. CONCLUSION
Accordingly, upon consideration of the record, the Secretary’s motion for summary affirmance, and appellant’s brief, the Court denies the Secretary’s motion and VACATES the April 1990 decision of the BVA because appellant’s claim has not been reopened since it was the subject of a prior final denial.