*1 ANDERSON, Appellant, Merritt I.
Anthony PRINCIPI, of J. Affairs, Appellee.
No. 00-499. Appeals
United States Court
for Veterans Claims. 14,
Sept. Smith, Truckee, California,
Cindy B. pleadings appellant. on the for the was McClain, Counsel; Tim General S. Campbell, Randall Assistant General Counsel; Moriarty, Deputy Joan E. Assis- Counsel; A. tant General and Catherine Chase, D.C., Washington, all were on appellee. pleadings KRAMER, Judge, and Before Chief STEINBERG, Judges. IVERS IVERS, opinion filed the of the Judge, STEINBERG, Judge, filed a Court. concurring opinion. *2 976, 2001, 107-103,
IVERS, Pub.L. No. 115 Stat. Judge: (2001), jurisdiction. upon this Court’s Anderson, ap Merritt I. appellant, The parties supplemental Both have submitted 1999, 7, a decision of the peals December gra- expresses memoranda. The Court its (BVA Appeals Board of Veterans’ in parties titude to the for their efforts Board) separate that denied 12 claims for 27, 2002, responding August to the order. (R.) at 1-49. In an VA benefits. Record determined, further upon The Court has 27, 2002, August single-judge dispositive review, that that information is not neces- alia, order, Court, inter vacated that sary appeal. appeal to decide the This 7, 1999, portion of the December decision timely, jurisdiction pur- and the Court has denied, Board that as not well 7252(a) 7266(a). §§ suant to 38 U.S.C. and disorder, grounded, claims for skin back below, For the reasons set forth the Court disorder, psychiatric disability (including in part will affirm the Board decision (PTSD)), post-traumatic stress disorder it in part vacate and remand a matter. disorder, a lung cardiovascular disorder kidney a (including hypertension), disor I. BACKGROUND
der, syndrome, residuals of a post-polio stroke, appellant Army The served the U.S. disability a claimed heat manifest 24, 1960, 24, 1962. weakness, May May from to R. at by fatigue ed and a claim 51, 130. He had service in the continental pulmonary for residuals of embolism Texas, Alabama, 1151, United States pursuant to 38 and remand 1992, appellant Utah. R. at 69-70. In pursuant to ed those matters the Veterans (VCAA), a claim for Act submitted entitlement to non- Claims Assistance of 2000 106-475, In pension. service-connected R. at 380. Pub.L. No. 114 Stat.2096. The 1993, (RO) April regional previously office de remanded claims are not before Court, nied entitlement to they will not be non-service-connected addressed 395-98, pension. R. 673. The opinion. Morgan this order). Disagreement submitted a Notice of (per curiam (NOD) May In 1993. at 395-98. appeal remaining as to the issues of prepared November whether the State Court has (SOC) ment of the Case claims for service connec pension. depression secondary tion for non-service-eonnected service- perfected R. at 673. He on that impotence pursuant connected to section claim on November R. at 664- entitlement to an earlier 1995. effective tinnitus, January hearing, In a rating date for an increased testify did not regarding his and for entitlement to service connection secondary pension. for various disorders non-service-connected in-ser R. at 2722-59. The Board decision on vice tobacco use remain before the Court. appeal did not address the issue of non- also contends that a remand adjudicate pension. service-eonnected R. at 1-49. because VA failed to claim for non-service-con September sub- pension. nected a claim for mitted service connection for August single-judge In an or- secondary various disorders as to in-ser- der, the directed that Court vice tobacco use. R. at 2655-57. In an letter, supplemental file a brief addressing the October 1997 which is not contained 603(a) effect of of the agree section the record but which both sides file, Expansion Education and Benefits Act of was included the claims the RO therefore, necessary a remand is so evi- appellant provide requested that claim in support may adjudicate the information that would the Board dence and 7104(d)(1). In a usage. relating to tobacco accordance with 38 U.S.C. Ms claim decision, the RO denied any such error Secretary argues December *3 error, connection claim for service nonprejudicial be- would constitute secondary to and heart disabilities lung for for legally ineligible appellant cause the Rec- Supplemental in service. tobacco use pension. The Court non-service-connected 1998, January 1-4. In (Suppl.R.) at ord Secretary. eligible To be with the agrees stated, hearing, at an RO appellant pension, a veter- for non-service-connected hypertension and that his that he believed period during have served an must directly re- coronary artery disease were defined; statutorily permanently be war as chemicals, the exposure to lated to his disabled; in- totally and meet certain diet, all of which military smoking, and his 1521; § 38 come standards. 38 U.S.C. in the service. R. exposed he was to while (2003). 3.3(a)(3) The “Vietnam C.F.R. that The record does not indicate at 2743. statutorily as follows: era” is defined regarding that an NOD was ever filed February (A) on period beginning The claim. 7, 1975, 1961, May 28, ending on 1995, appellant sub- September in served in the case of a veteran who rating for mitted a claim for increased during pe that Republic of Vietnam need for bilat- hearing loss because of the riod. In a hearing aids. R. at 641. Febru- eral (B) beginning August on period in the ary decision not contained 1975, 7, 5, 1964, May in ending on (ROA), apparent- record on the RO all other cases. disability ly granted a 10% 1995, September resulting rating, effective 101(29). clearly The record 38 U.S.C. rating appel- of 20%. The in a combined from indicates that served to dat- correspondence lant submitted VA 1960, 24, 1962, May and that he May to which, 17, 1996, among March other ed Vietnam, Republic not serve in the did sought I a audio things, he stated: “First military spent his entire service but rather you people fail to exam back 1995 States R. the continental United If your decisions. recognize or allow claim must fail as 69-70. The me combined eval- you allowing were 20% not meet law he does matter of because uation, why wasn’t this allowed back for an statutory requirements either of He made the same 1985?” R. at 711. pension re of non-service-connected award correspondence dated March assertion war, during period lating to service you “I thank for when he noted: law era. “Where the here the Vietnam compensation, amount of the additional dispositive, and not the evidence why it allowed however wonder wasn’t denied.” Sabonis claim should be in 1985!” R. at 721. back (1994). Even adjudi fail to that the Board did assuming II. ANALYSIS claim, such pension cate the for Non-Service- A. Claim appel nonprejudicial because error is Pension Connected of law on fail as a matter lant’s claim must See appellant. asserted the facts contends Principi, 7261(b)(2); Valiao adjudicate his claim for failed to Board (2003). that, Vet.App. pension non-service-connected B. for final and the claim will not thereafter be Claim Service Connection allowed, Secondary to reopened except may
Various Disorders
as
other
Use
provided by regulations
In-Service Tobacco
wise be
not incon
sistent with this
title.”
contends that VA
7105(c);
Principi
see Rowell v.
adjudicate
failed to
his informal claim for
An
NOD is defined
service connection for disabilities related
regulation
written communication
“[a]
service,
to his tobacco use in
and that
representa
from a claimant or his or her
therefore,
permit
a remand is
expressing
disagree
tive
dissatisfaction or
adjudicate
his claim. The
adjudicative
ment with an
determination
argues
that the Court has
*4
by
a
the
and
desire to contest the
[RO]
this claim because the Board addressed it
result” and it “must be in
which can
terms
in its decision. R. at 3. The Board noted
reasonably
disagreement
construed
be
as
following:
the
that
a
with
determination and
desire for
The Board observes that the RO De-
§
appellate review.” 38 C.F.R.
20.201
cember 1997 denied entitlement to ser-
(2003);
Gallegos
Principi,
283 F.3d
vice connection for chronic obstructive
(Fed.Cir.2002)
denied,
t.
537 U.S.
cer
pulmonary
and
disease
heart disease
123 S.Ct.
Section of title erroneously that the RO had denied ser- statutory requirements sets forth the lung for vice connection for and heart disabili- an writing NOD. The NOD must be in secondary ties to tobacco use in service by decision, filed representative or a its December 1997 nor did he year within one “from mailing express the date of disagreement “dissatisfaction or of notice of the adjudicative result of initial review or with an determination 7105(b)(1), determination.” desire to contest the [RO] result” 20.302(a) (2003). see 38 C.F.R. If and communicate it “in terms which can be an NOD not one-year filed within the disagreement construed as period, time the RO decision “shall become with that determination and a desire for disagree- expression in 1985” was an 38 C.F.R. 20.201. appellate review.” assigned. that ment with the effective date anything not contain The record does as an NOD submitted can be construed that either the March The Court holds regarding the RO’s denial 18, 1996, letter to the RO 17 or March claim. Since inquiries con constituted valid NOD. His connection for various disorders service that ex stituted written communications secondary usage to in-service tobacco was February with the pressed dissatisfaction Board, appellate not in status before the regarding 1996 RO decision effective address, not the Board was tin assigned date for his service-connected address, Thus, that claim. and did not The record does not indicate that nitus. that claim. lacks Court required by VA has ever issued SOC Hamilton, at 531. See 7105(d). the Decem Nor did Date for C. Earlier Effective Service- on address ber 1999 Board decision Connected Tinnitus regarding the issue of the NOD effective date for his service- an earlier that a re asserts As we held in Fender connected tinnitus. required regarding mand is son v. West: connec an earlier effective date service *5 Hence, here with a presented we are September tion for he tinnitus. timely regard- to this claim but NOD as rating a claim for an increased submitted ing responded has never which RO hearing for loss because of the need for by issuing an as law SOC Al hearing bilateral aids. R. at 641. a regulation. remedy for such though the ROA does not contain the Feb opinion situation is controlled our decision, ruary apparently Gober, 433, 436 Vet.App. Holland v. rating a for granted 10% order) (per (vacating curiam BVA 1995, result September tinnitus effective remanding matter when VA decision ing rating in a combined of 20%. The after claimant sub- failed to issue SOC correspondence submitted to VA NOD).... timely mitted 17, 1996, which, among dated March things, sought other he stated: “First I Fenderson, 12 Vet.App. you audio exam in 1995 that
a[n] back Fenderson, Thus, ... “the Court will people recognize your fail to or allow in vacate the BVA decision as to this matter you allowing If were me 20% decisions. appropriate and remand to the Board ‘for evaluations, why combined wasn’t this al procedural compliance, specifically the is ” lowed back in 1985?” R. at 711. He made Fenderson, supra of an SOC.’ suance correspondence dat the same assertion Holland, (quoting supra); see 38 U.S.C. “I ed March when he noted: 7105(d)(1); 19.26, §§ 19.29 38 C.F.R. you thank for the additional amount of (2003). Thereafter, will be it compensation, why however wonder his days perfect afforded 60 which to wasn’t back in 1985!” R. at 721. allowed Appeal pur a appeal by filing Substantive expresses disagree He “dissatisfaction 7105(d)(3) and 38 suant to 38 U.S.C. adjudicative an determination ment with 302(b) (2003). §§ See C.F.R. 20.202 by the and a desire to contest the [RO] Fenderson, supra. “in result” and communicates it terms Secondary Compensation D. for Claim can construed as dis
which be Compensation for Dis- to an Award agreement with that determination and ability pursuant appellate desire for review.” 38 C.F.R. appel Liberally appel The Court notes interpreted, 20.201. pleadings characterization his why it wasn’t allowed back lant’s lant’s “wonder secondary to newly depression pression as a the section raised secondary impotence. service connection award for coun- impotence pur from his service-connected ters that the Court lacks be- A claim suant to section 1151 is incorrect. cause the has not submitted not, speak 1151 is properly under section addressing NOD a denial of a claim for pursu connection ing, claim service secondary depres- service connection for ant to section 1151. The Court has ob sion, any pendiiig nor is there claim on served: “Section 1151 does not confer that issue. upon its beneficiaries the status service Although the December 1999 Board de- connection; rather, section 1151 awards only cision lists a claim for service connec- compensation as if the claimant were disability, including a psychiatric tion for words, service connected. In other sec PTSD, apparent it is that the Board also provides tion 1151 nowhere that the dis adjudicated and denied the is, ability appellant suggests..., as the claim for service connection for a psychiat- generally be treated as if it were service (al- disorder, ric including depression Kilpatrick Principi connected.” claim) (R. though separate not listed as a (2002)(emphasis origi in the 35). RO, at At the that claim was listed as nal). Thus, description the correct separate and distinct claim from the compensa claim is a claim for appellant’s claim for service connection for secondary compensa tion to an award of 745-58, 760-62, PTSD. See 2739-41. disability pursuant tion for to section 1151. Court remanded the parties pleadings in their
While psychiatric for service connection for a dis- Hamilton, past, this Court in the *6 ability, including depression, PTSD and 537-38, Vet.App. interchangeably at have Therefore, August its 2002 order. used the term “service connection” with a claim not before us but rather claim, section as the Court illustrated Board. Kilpatrick, supra, usage such is not legally accurate. The Court notes that previously remanded claim for service con- that, appellant although The asserts psychiatric disability nection for a includ- granted compensation Board as if he were ing depression distinguishable from his impotence pursuant service connected for newly compensation asserted claim for for (R. 48), to 38 U.S.C. at the Board depression secondary to the section 1151 failed to a claim compensation consider for impotence. award for appellant The has for depression secondary to the award for compensation raised the claim for second- impotence. appellant The notes that vari- ary compensation to an award of for dis- outpatient ous VA records indicate that ability pursuant to section 1151 for the appellant’s depression may be related first time before this Court. Because the e.g. to his unresolved sexual issues. See compensation of new is derivative 336, 338, 347, 354, at argues 1350. He grant his section that, compensation of for granted compen- because he has been impotence, he could not have raised such a sation as if he were service connected for claim until he had granted compensa- been impotence, the Board’s failure to consider it, upon possi- him tion which to base with the compensation for a claim for for de- exception making ble of such a claim con- pression secondary to the award for impo- tingent upon grant requires tence that the claim be remanded award claim, analyze depression underlying compensation to the Board to which is Thus, a claim compensation claim as for for de- not the case here. the Board could compensation secondary to an award of such by failing to consider have erred not VA, not this to section 1151 is pursuant a claim. Court. fil distinction between legal There is a E. Miscellaneous for a connection
ing a claim for service § 1110 and to 38 U.S.C. disability pursuant that a remand is appellant argues ag from compensation derived a claim for provide an ade required for the Board pursuant compensation of reasons or bases re quate statement rant Kilpatrick, 16 Vet. 1151. See error U.S.C. clear and unmistakable garding West, 11 5; (CUE) App. Carpenter decision that July in the cf. Brown, 142-43 Green for a low back denied service connection (1997). Although, Vet.App. 114-16 no indication in the disability. There is case, claim has a raised the issue this record that the pend This depression connection for at the RO or the Board. for service of CUE 1110, any to 38 U.S.C. the first time ing pursuant issue was raised for compensation upon based Be brief before this Court. before, impotence pur for compensation was neither raised award cause this issue VA, constitutes impotence adjudicated by to section 1151 the Court lacks suant nor for and distinct claim VA bene it. Crowe v. separate jurisdiction to review words, may In other fits. the same separate
have two claims for vio- appellant also contends bases, legal upon separate condition based duty to when it pre-VCAA lated the assist i.e., to 38 pursuant for service connection Security Admin- failed to obtain his Social sec compensation 1110 and for (SSA) records. istration pur ondary compensation to an award of records at may raise the issue of the SSA to section 1151. suant adjudication of the during Board remanded claims. previously have The Court does not hear the the first instance to III. CONCLUSION secondary to an compensation for above, the De- the reasons stated For impotence pur- *7 compensation award of 1999, AF- 7, is Board decision cember The claim has not suant to section 1151. earlier-effective- part, FIRMED in and the by and the Court is adjudicated been tinnitus claim for service-connected date in findings of fact not authorized to make is REMAND- and that matter VACATED such a claim. first instance to decide ED. Gober, 1369, 1377 v. 229 F.3d See Elkins
(Fed.Cir.2000) in (“fact-finding veterans STEINBERG, Judge, concurring: BVA, not by expert cases is to be done unnecessary to found it Court.”); v. Hensley by the Veterans Court.has 603(a) (Fed.Cir.2000) of the of section West, 1255, address the effect 212 1263 F.3d Expan- Education and Benefits general appellate rule that (noting “the (VBEA), Pub.L. No. 107- Act of 2001 fora for ini- sion appropriate are not tribunals 976, 999, 603(a), repeal- in NOD, 103, § 115 Stat. is also no finding”). tial fact There Judicial 402 of the Veterans’ ing no section be because there was nor could there 100-687, (VJRA), Pub.L. No. below, Review Act there a final Board nor is (1988) (set 4105, 402, 4122 § may exer- 102 Stat. the Court decision over which note). mat- § This 7251 forum forth jurisdiction. appropriate cise however, addressed, by the has been compensation ter by receiving to issue SOC as to claim after reply brief claim); Secretary supplemental timely regarding in a brief filed filed NOD West, 148, (1998); response to an order of the Court. Be- Vet.App. Velez v. Secretary Brown, “that the 229, cause the has asserted Garlejo Vet.App. jurisdiction Brown, not have over Court does (citing Johnston v. ... claims there is no Board Brown, [to which] (1997); Phillips 10 Vet. 26, 2002, (Secretary’s Sept. decision” Re- (1997); App. 25 Slater v. 9 Vet. 8), my I sponse (Resp.) at want to set forth Brown, 7 App. 240 and Isenbart v. other view that this contention certain (1995)). 540-41 positions by taken are not view, my point, light the law at this correct. § repeal of the of VJRA 402 VBEA § repeal of the of As result VJRA jurisdiction § that this has Court filing Disagreement of a Notice of any following of the circumstances as to (NOD) 17, 1988, after November is no 26, 2001, post-December appeals or here longer jurisdictional prerequisite for this appeals finally here that were not decided jurisdiction a case Court’s where by December 2001: appeal filed here on or after Decem- was (1) Where the Board has addressed a was filed ber where claim or matter as to which there was a here that date but a final decision before valid NOD as to either an RO’s adverse has not been made December 603(d). decision on that claim or matter or as to an dispute VBEA There is no However, about this RO’s failure to address a claim or matter conclusion. Sec- it, retary goes on to assert that because raised to see 38 U.S.C. Fenderson, Isenbart, 7266; Velez, jurisdictional a final Board decision is a supra; all Court, requirement for the to conclude may that the Court review a claim on (2) where the Board has addressed a NOD, the merits without an would [sic] claim or though matter even there was no place posi- in the anomalous Court (the valid NOD as to that claim or matter (RO)] reviewing [regional tion of office could question Court address either the decisions which the Board would not jurisdiction light the Board’s lack of jurisdiction have to review. 7105(b) requirement the 38 U.S.C. NOD Resp. Secretary’s position at 5. The that a or address the ac- merits the Board’s particular BVA decision is on a tion, 7252(a)); otherwise, claim or matter in order for this Court to incorrect, adverse, final Board decision have over such a claim or mat *8 on a claim or matter would be allowed to situation, ter on overlooks possibility stand without the of correction easelaw, clearly contemplated in our where review, through judicial see 38 U.S.C. the Board fails to address a claim or a 7252(a), 7266; §§ jurisdic matter over which the Board had (3) where the Board failed to address tion virtue of an NOD as to either an claim or though matter even valid NOD RO’s adverse decision or as to an RO’s has an failure to a claim been filed as to RO’s adverse deci address or matter rea sonably it. sion on claim or matter or as to an raised to See Fenderson v. West, (1999) (or RO’s failure to address a claim or 131-32 matter RO, dering Board to direct issuance of State raised to the see Fender (SOC) son, Isenbart, Velez, ment of supra; the Case where RO failed all to refer an failed where Board for the first or matter raised a claim course of an Board in the time to the another action on
appeal of RO’s Brown, 7 matter, Godfrey situation the in this jurisdiction to direct the have
Court would matter that claim or to an
Board to refer
RO. Jr., Appellant, FRASURE, E.
William PRINCIPI,
Anthony J. Affairs, Appellee.
No. 02-1108. Appeals States Court
United
for Veterans Claims.
Argued Feb. 14, 2004. Sept.
Decided Columbus, Ohio, Booth,
Sandra E. appellant. McClain, Counsel; R. Tim S. General General Campbell, Randall Assistant Counsel; Assis- Moriarty, Deputy E. Joan Counsel; Richard A. tant General Cohn, D.C., Washington, were on all of *9 brief, Bernal, Washington, L. Debra D.C., argued, appellee. KRAMER, Judge, Chief Before STEINBERG, Judges. IVERS and