12 Vet. App. 98 | Vet. App. | 1998
The appellant, veteran Raymond H. Jones, appeals through counsel a July 10,1996, decision of the Board of Veterans’ Appeals (BVA or Board) denying entitlement to an effective date earlier than May 29, 1992, for resumption of Department of Veterans Affairs (VA) service-connected disability compensation for psychoneurosis, currently rated as 10% disabling. Record (R.) at 5. The appellant has filed a brief and a reply brief; the Secretary filed a brief. This appeal is timely, and the Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow, the Court will vacate the BVA decision and remand two matters for further proceedings.
I. Background
The appellant had active duty in the U.S. Army as an entertainment specialist from April 1943 to May 1945 (R. at 84). On May 17, 1945, upon his discharge from service, he filed with a VA regional office (RO) an application for VA service-connected disability compensation for an “[o]ld back injury aggravated during basic training [in] May 1943” and for symptoms of psychoneurosis and hysteria [hereinafter psychoneurosis]. R. at 96. Seven days later, the VARO awarded service connection for psychoneurosis, incurred in service, and granted a 30% rating (R. at 88); that award was reduced to 10% in 1948 (R. at 139). Neither rating decision addressed the veteran’s back claim. See R. at 88, 139.
On July 6, 1948, an RO sent a letter to the veteran at “912 Locust Street, Kansas City, Missouri” (912 Locust St.) (R. at 150) to which the veteran specifically responded in August 1948 (see R. at 103 (“After receiving your letter of July 6th.... ”)). In his letter the veteran included a request that VA correspond with him at “912 Locust St., Kansas City, Mo. — Room 221” (R. at 104).
The Secretary states that VA mailed to the veteran- at 912 Locust St., without a room number, notice of a January 12, 1949, physical examination to be conducted for “pension purposes” (see Brief (Br.) at 4 (citing R. at 156 (discussed in part II.A., below))). In February 1949, VA mailed to the veteran at 912 Locust St., again without a room num
According to the veteran’s June 1995 sworn testimony before the RO in Manila, the Philippines, some time in 1992 he appeared at that RO and asked whether he was due any “benefits or pension”. R. at 275. The record on appeal (ROA) contains correspondence dated from May 1992 to February 1993. These items refer to other documents that are not in the ROA, and the Secretary does not explain their absence. According to a Statement of the Case issued by the RO in January 1994 (R. at 267), a May 22, 1992, letter of the veteran (located at R. at 164) was received by VA on May 29, 1992, and accepted as an application for service-connected benefits or non-service-connected pension. (According to the Board, however, the information that the RO “construed as a claim” was “submitted” by the veteran “[o]n May 2, 1992”. R. at 6; see also R. at 8.) In March 1993, the RO received a clinical abstract from a private physician, Dr. Chan, describing the veteran’s in-service back injury and his current “ache in the socroiliac [sic] area”. R. at 193-97. An April 1993 VA examination did not encompass the veteran’s back condition. See R. at 198-223.
In September 1993, the RO awarded the veteran a 10% rating for his psychoneurosis, effective May 29,1992. R. at 233. Again, no reference was made to his back condition. See ibid. The veteran complained to VA in a September 1993 letter that the VA examiner had not examined his back, which the veteran stated was his “main problem”. R. at 243. In the June 10, 1996, BVA decision here on appeal, the Board denied an effective date earlier than May 29,1992, for the resumption of compensation for psychoneurosis. R. at 4. That decision did not mention the veteran’s back claim. See R. at 4-11.
II. Analysis
A. Psychoneurosis Claim
1. Presumption of Regularity. The appellant argues that he did not receive any notice that he should report for an examination or that subsequent compensation payments would be suspended for such failure; he also implies the possibility that such notice was in fact never mailed to him at all (see Br. at 12 (“it appears that the VA may have sent notice of the examination” (emphasis added))). Further, the veteran claims not to have received notice of the actual suspension of benefits following the examination to which he did not report. See, e.g., R. at 275 (veteran alleges that VA sent notification to incorrect address). Accordingly, the appellant asserts that the BVA’s finding that he had been given adequate notice that he would no longer receive compensation for his service-connected psychoneurosis (R. at 6) was in error. We disagree and hold, for the following reasons, that under the facts of this case the veteran was provided adequate notice that his compensation would not be continued.
“There is a presumption of regularity under which it is presumed that government officials ‘have properly discharged their official duties’. United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926).” Ashley v. Derwinski, 2 Vet.App. 307, 308 (1992) (Ashley II); see also Mindenhall v. Brown, 7 Vet.App. 271 (1994) (“the presumption of regularity ... applies to the VA mailing of the RO decision in the same manner as it applies to the BVA mailing of the decision” (citing Ashley v. Derwinski, 2 Vet.App. 62, 64-65 (1992) (Ashley I))). Therefore, VA is presumed to have properly discharged its official duty to mail notice to the veteran of the 1949 physical examination and, subsequently, notice that his compensation was “discontinued” because of his failure to report. However, “[t]he presumption of regularity is not absolute; it may be rebutted by the submission of clear evidence to the contrary”. Ashley II, 2 Vet.App. at 309 (citing Rosler v. Derwinski, 1 Vet.App. 241, 242 (1991)); see also YT v. Brown, 9 Vet.App. 195, 199 (1996); Minden-hall, 7 Vet.App. at 274; Ashley I, supra.
However, the Court notes that the ROA contains a eopy of a February 4, 1949, notice of suspension of benefits payments that stated that if the veteran “informed this office of [his] willingness to submit to a physical examination” then at that point further action would be taken on his claim. See R. at 159. Hence, even if the veteran was not sent notification of the January 12, 1949, examination, any such error was not prejudicial to him in this case because, based on the February 4, 1949, letter from VA, the veteran was sent notice that his receipt of payments would not continue after January 1949 and was thus afforded the opportunity to protest that action. See 38 U.S.C. § 7261(b) (Court shall take due account of rule of prejudicial error); Edenfield v. Brown, 8 Vet.App. 384, 390-91 (1995) (en banc). Therefore, the Court will consider the February 4, 1949, document as evidence that VA mailed notice to the veteran at his latest address of record, see Hyson v. Brown, 5 Vet.App. 262, 264-65 (1993), and, therefore, adequately provided notification to him of the action taken regarding his payments.
Having determined that VA generated and apparently mailed in due course notice of its decision to discontinue payment, and because that notice is not alleged to have been returned as undeliverable by the Post Office, see, e.g., Hyson, supra (when notice returned as undeliverable by USPS presumption of regularity does not attach), the issue becomes whether the undisputed fact that the documents were mailed to “912 Locust St.” instead of “912 Locust St. — Room 221” is “clear evidence” that rebuts the presumption of regularity. See YT, Mindenhall, Ashley II, and Ashley I, all supra. The Court notes that the veteran’s August 2, 1948, letter to VA (see R. at 103-04) specifically referred to VA’s “letter of July 6” (R. at 104), which was addressed to the veteran at “912 Locust St.” without a room number (see R. at 150). Thus, the veteran had received at least one piece of correspondence at 912 Locust St., without a room number, and the ROA contains no other correspondence mailed to the veteran at 912 Locust St. to which the veteran did not respond, and thus that could have supported his contention that he was not receiving mail at that address. Accordingly, VA had no reason to believe that the address that it was using was insufficient, and the evidence shows that the veteran was in fact receiving mail sent to the address VA was using. Because the veteran had specifically responded to correspondence sent to the identical address to which VA sent notification of the February 1949 RO decision, the Court cannot find that the irregularity of the missing room number alone is sufficient to overcome the presumption of regularity. See Hyson, 5 Vet.App. at 265 (describing duty of veteran to keep VA apprised of his whereabouts); cf. Ibeling v. Brown, 8 Vet.App. 256, 259 (1995) (letter from appellant referring to BVA decision deemed evidence that appellant had received such decision).
Next, we must determine whether the use of the incomplete address coupled with the veteran’s assertions that he did not actually receive the notice constitute the req
Finally, the Court notes that the appellant’s reliance on Hyson, supra, is misplaced. It is true that, in that case, the Court determined that VA had a duty to mail notice of a physical examination to other known addresses of the veteran prior to terminating his benefits and that in that case — as well as in the case at bar — VA was aware of other addresses used by the appellant. In Hyson, however, the notice to report was actually returned to VA by the Postal Service as “undeliverable”, Hyson, 5 Vet.App. at 264, and, further, the Court stressed that the Hyson decision was limited to the “peculiar facts of [the Hyson ] case ”, specifically including the fact that the notice had been returned to VA, ibid, (emphasis in original). In the instant case, there is no evidence that the notice was returned as “undeliverable”; furthermore, in the instant case the veteran had specifically told VA to use his new address, whereas, in Hyson VA was aware of at least two different, and apparently current, addresses — one a residence that the veteran purchased using funds from a VA loan (unrelated to the matter presented in Hyson) and the other an address at which the veteran had received VA correspondence relating to the claim that was actually at issue in Hyson, see Hyson, 5 Vet.App. at 264 (noting veteran had an address relating to a VA home loan and that that address was apparently not used by the veteran in correspondence relating to the claim at issue in Hyson). In light of the foregoing, the Court holds that the presumption of regularity has not been rebutted, and thus the Board did not err in concluding that the veteran was properly notified that his benefits were not going to be continued. See Mindenhall, 7 Vet.App. at 274 (apparently applying “clearly erroneous” standard of review to BVA determination that, inter alia, RO had timely informed appellant of decision). This does not end our inquiry, however.
2. Suspended Versus Discontinued Payments and/or Abandoned Claims. The Board determined that the veteran was presenting a claim for resumption of entitlement to an abandoned claim. R. at 7. The appellant argues that the RO improperly considered his claim abandoned and that payments are due for the period from 1949 to 1992 when payments by VA to the veteran were suspended.
The VA regulation in force when the veteran’s disability compensation payments were “discontinued” provided in pertinent part as follows:
(a) Upon the failure of a veteran without adequate reason to report for physical examination, requested for disability compensation ... purposes, the award of disability compensation ... in [the] course of payment to him will be suspended as of the date of last payment. The reason given for suspension will be “Failure to report*103 for examination.” ... (Resumption of payments, see § 3.266.)
• (b) Upon the failure of a veteran to report for physical examination, requested as a result of a claim, for increased disability compensation ... the claim for the increase will be considered as abandoned. No further action thereupon will be taken unless and until a new claim for the increase is filed.
38 C.F.R. § 3.251 (1949) (emphasis added). The regulation (38 C.F.R. § 3.266 (1949)) referenced in § 3.251(a), above, regarding the resumption of a suspended (as opposed to an abandoned) award provided in pertinent part as follows:
Resumption of discontinued award where veteran subsequently reports for physical examination. If, after suspension of his award, the veteran should subsequently report for physical examination and the evidence clearly establishes to the satisfaction of the rating agency concerned that during the period of his failure to report the disability in fact existed to a compensable degree, an award may be approved effective the date of suspension.
38 C.F.R. § 3.266 (1949) (boldface emphasis added).
The current regulation, entitled, “Abandoned claims”, provides:
(a) General. Except as provided in § 3.652 of this part [entitled “Periodic certification of continued eligibility”], where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. § 1805 based on such evidence shall commence not earlier than the date of filing the new claim.
(b) Department of Veterans Affairs examinations. Where the veteran fails without adequate reason to respond to an order to report for Department of Veterans Affairs examination within 1 year from date of request and payments have been discontinued, the claim for such beneñts will be considered abandoned.
(c)Disappearance. Where payments of pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. § 1805 have not been made or have been discontinued because a payee’s present whereabouts is unknown, payments will be resumed effective the day following the date of last payment if entitlement is otherwise established, upon receipt of a valid current address.
38 C.F.R. § 3.158(b) (1998) (boldface italics added). See also 38 C.F.R. § 3.330 (1998) (entitled “Resumption of rating when veteran subsequently reports for Department of Veterans Affairs examination”). The Court notes many ambiguities in the above-quoted regulation, some of which will need to be addressed on remand if the Board determines that the regulation applies. First, it appears (although it is not explicitly stated) that a VA examination under § 3.158(b) is a form of “evidence requested” under paragraph (a). Such a construction would provide a context for construing “request” and “such benefits” in paragraph (b), whereas paragraph (b) itself contains no antecedents for those words. It is unclear whether the words “and payments have been discontinued” in paragraph (b) are intended to provide the authority to “discontinue[ ]” payment of “such benefits”, or if that authority exists elsewhere. Also noteworthy is that paragraph (c), relating to payments that “have not been made or have been discontinued because a payee’s present whereabouts is unknown” provides for the kind of retroactive resumption of payments (effective, in the current regulation, the “day following the date of last payment”) that are described in § 3.266 (1949) (providing that resumption of payment “may be approved effective the date of suspension”). Finally, we note that the Board appears to have correctly determined that 38 C.F.R. § 3.655(c) (1998) (entitled “Running award”) does not apply to this case because the veteran’s claim has appar
Thus, under current VA regulations, if a veteran, who is receiving disability compensation, fails to report for a scheduled VA examination VA will apparently discontinue, rather than suspend, payment, and, further, will consider the claim for benefits abandoned if, within one year, the veteran has not responded to the order to report; conversely, under the 1949 regulations, a failure to report for an examination would lead to a suspension of payments, but apparently, under appropriate circumstances, payments could be resumed as of the date that the payments were suspended. Compare 38 C.F.R. § 3.266 (1949) with 38 C.F.R. § 3.158(a) (1998). In this case, the Board applied current regulatory law and determined that the veteran was not entitled to a date earlier than the date of his 1992 claim for compensation.
“Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant should apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the Secretary did so.” Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991). In order for Karnas to apply, the administrative process must not have “been concluded”, ibid., and it is unclear whether the 1949 suspension “concluded” the administrative process such that the 1949 regulations are not for application. Under Karnas, then, one key question is whether the Board was presented in 1996 with a new claim, i.e., one that had been initially filed in 1992, or, rather, with an unadjudieated claim that had been suspended since 1949. Regarding this matter, the Court notes that the 1949 regulations specifically differentiated in § 3.251 between abandonment of a “claim for increased disability compensation” in paragraph (b), which required the filing of a new claim once “the claim for the increase [was] considered as abandoned”, and “suspension” in paragraph (a), which provided, by cross reference to § 3.266, that if and when the veteran reported for an examination while payments were suspended he could, under certain circumstances, receive restoration of benefits as of the date of the original suspension; thus, paragraph (b) appears to limit the applicability of the treatment of a claim as abandoned solely to claims for increased compensation whereas paragraph (a) would apparently apply to all other situations, including that presented in the case at bar, where the requested examination in question (in 1949) was in connection with an existing award of disability compensation.
At this point, the Court notes that counsel for the Secretary cites and correctly quotes 38 C.F.R. § 3.251 (1949) in his brief (Br. at 7-8) — including the portion of it that explicitly references 38 C.F.R. § 3.266 (1949) — but does not similarly provide to the Court the text of § 3.266 then in effect. It is troubling that the Secretary should set forth the text of the one and not the other, especially when the latter is of such potential benefit to the appellant. See Penny v. Brown, 7 Vet.App. 348, 351 (1995) (“Secretary has a duty to inform the Court of the facts and the law applicable in each appeal”).
The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented on the record; the statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). In this case, the Board cited and accurately described the 1949 regulations (R. at 7), but then simply ignored them and applied current regulations, primarily 38 C.F.R. § 3.158(b) (1998), to preclude an effective date earlier than 1992 without providing an explanation as to when and how the regulations where changed and whether they were intended to have retroactive effect and, if so, to what extent. Nor did the Board explain whether the veteran’s claim was suspended or discontinued; the RO in 1949 had used the
Finally, the Board did not explain why, even if the 1949 regulations do not apply, it did not afford the veteran an effective date of May 2, 1992, as opposed to May 29, 1992, when it specifically found in two separate places in its decision that the veteran’s claim was initially filed on May 2. R. at 6, 8. Similarly, neither the Secretary nor the BVA attempts to explain why the ROA is apparently missing several documents regarding the actions of the Manila RO. For example, the earliest document in the ROA that was received by the Manila RO is a letter dated May 22, 1992, but that letter refers to earlier interactions, apparently with either or both the U.S. Embassy Office and the RO. See R. at 164. Other documents refer to “instructions from the National Personnel Records Center” (R. at 169 (August 3, 1992, letter from veteran to RO)), correspondence with “St. Louis” (R. at 174), and other forms and correspondence absent from the ROA. See, e.g., R. at 177, 184. The Court trusts that in the future the Secretary will make greater effort to provide a complete ROA or to explain the obvious absence of potentially relevant documents and, further, will endeavor to discover on remand any evidence potentially favorable to the veteran as part of VA’s duty to assist him in developing “the facts pertinent to the claim”. 38 U.S.C. § 5107(a).
B. Claim for Back Disorder
The appellant also asserts that the RO and the Board have failed to adjudicate a back claim and asks the Court to remand that claim for proper adjudication. Based on the following analysis, the Court agrees with the appellant on this question.
The Court has held that where a “review of all documents and oral testimony reasonably reveals that the claimant is seeking a particular benefit, the Board is required to adjudicate the issue of the claimant’s entitlement to such a benefit or, if appropriate, to remand the issue to the RO for development and adjudication of the issue.” Suttmann v. Brown, 5 Vet.App. 127, 132 (1993); see also Solomon v. Brown, 6 Vet.App. 396, 402 (1994); EF v. Derwinski 1 Vet.App. 324, 326 (1991). In this case, the veteran filed in 1945 a claim for, inter alia, an “[o]ld back injury aggravated during basic training [in] May 1943 which has given periodic trouble since”. R. at 96. Further, the RO should have been placed on notice of the claim when the veteran pressed his claim in 1992 by submitting a private medical record from Dr. Chan in April 1993 specifically discussing the veteran’s complaints of back pain and describing the in-service injury to his back. R. at 193. Accordingly, the Court holds that the veteran filed a claim for service connection for his back in 1945, and that that claim has never been adjudicated. The Secretary apparently concedes this. See Br. at 14 (Secretary “acknowledges” that appellant’s back claim “has never been adjudicated by the BVA”).
This Court’s appellate jurisdiction derives exclusively from the statutory grant of authority provided by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988); Prenzler v. Derwinski, 928 F.2d 392, 393-94 (Fed.Cir.1991); Ve
Just as the Court’s jurisdiction is dependent on a jurisdiction-conferring NOD, the Board’s jurisdiction, too, derives from a claimant’s NOD. See Marsh v. West, 11 Vet.App. 468 (1998) (“untimely NOD deprives [BVA] of jurisdiction”); Garlejo v. Brown, 10 Vet.App. 229, 232 (1997) (Board did not err in refusing to adjudicate matter as to which no NOD was filed). When the Board has jurisdiction over a particular matter, that jurisdiction is “mandatory”. In the Matter of Fee Agreement of Cox, 10 Vet.App. 361, 374 (1997), vacated in part on other grounds sub nom. Cox v. West, 149 F.3d 1360, 1365 (Fed.Cir.1998) (holding expressly that this Court properly held that such decision by Secretary is mandatory); see also Suttmann, Soloman, and EF, all supra (Board must adjudicate all claims reasonably raised to it).
The Secretary argues that the Court does not have jurisdiction over the back claim because no NOD has been timely filed as to that issue. We disagree. In this case, the veteran submitted to the RO prior to the April 1993 RO decision Dr. Chan’s April 1992 medical report that referred to the veteran’s history of a 1943 fall during basic training, a 1945 x-ray of the spine, and a sacroiliac ache (R. at 193). See R. at 233 (RO decision listing Dr. Chan’s report as evidence). Then, in response to the RO’s September 15, 1993, letter transmitting its decision to him (R. at 237), the veteran submitted a letter dated September 22, 1993, that stated: “The VA examination did not X[-]ray my lower back.... That is my main problem^] the back trouble” (R. at 243); later, he again wrote to the RO describing his back pain both during and after service and requested “the VA benefits [that] I was supposed to receive since 1945” (R. at 256). Hence, the veteran protested the failure of the RO to adjudicate his back claim. The Court thus construes the September 1993 letter as an NOD regarding the RO’s failure to adjudicate his back claim (initiated in 1945); we are not limited by the Secretary’s characterization (in the Table of Contents to the ROA) of the veteran’s January 1994 statement (R. at 262) as the NOD, see Beyrle, supra (Court may construe document as NOD even when Secretary did not construe it as such), and we may consider the totality of the facts presented in this matter, see Isenbart v. Brown, 7 Vet.App. 537, 540-41 (1995) (Court considered totality of communications before and after NOD in concluding that it encompassed disagreement with RO failure to adjudicate particular claim).
III. Conclusion
Upon consideration of the foregoing analysis, the ROA, and the submissions of the parties, the Court vacates the October 1, 1996, BVA decision and remands both matters for expeditious further development and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1131, 5107, 7104(a), (d)(1); 38 C.F.R. §§ 3.251, 3.266 (1949); 38 C.F.R. § 3.158(a), (b); Karnas, supra; Fletcher v. Derwinski 1 Vet.App. 394, 397 (1991) — all consistent with this opinion and in accordance with section 302 of the Veterans’ Benefits Improvements Act, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at 38 U.S.C. § 5101 note) (requiring Secretary to provide for “expeditious treatment” for claims remanded by BVA or the Court) [hereinafter VBIA § 302]. See Allday, 7 Vet.App. at 533-34. Because of the appellant’s age and the RO and BVA’s failure to adjudicate his back claim, first presented in 1945, the Court expects that the Secretary will provide for exceptionally expeditious treatment above and beyond the requirements of VBIA § 302. “On remand, the appellant will be free to submit additional evidence and argument” on the remanded claim. Quarles v. Derwinski 3 Vet.App. 129, 141 (1992). The Court notes that a remand by this Court and by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Ste-gall v. West, 11 Vet.App. 268, 271 (1998). A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the new Board final decision is mailed to the appellant.
VACATED AND REMANDED.