Veterans Medical Advisor

                                                                            drbash@doctor.com

                   

                         Case from Bureau of Veterans Appeals

Dr. Bash is a veteran of


Citation Nr: 0701620

Decision Date: 01/19/07 | Archive Date: 01/25/07

DOCKET NO. 95-05 820A

On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia

THE ISSUES

1. Entitlement to an increased rating for postoperative residuals of a herniated nucleus pulposus (HNP) at L4-5.

2. Entitlement to an effective date earlier than February 9, 1989, for the grant of a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Veteran represented by: Sean Ravin, Esq.

WITNESSES AT HEARING ON APPEAL

The veteran and Dr. Bash

ATTORNEY FOR THE BOARD

S. A. Mishalanie, Associate Counsel

INTRODUCTION

The veteran served on active duty in the military from February 1968 to April 1969.

This appeal to the Board of Veterans' Appeals (Board) arose from a February 1995 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The case has a complex procedural history. In the February 1995 rating decision mentioned, the RO denied the veteran's claim for an increased rating for his low back disorder. In that same decision, the RO granted his claim for a TDIU, effective retroactively from September 4, 1992. He appealed requesting a rating higher than 40 percent for his low back disorder and an earlier effective date for the TDIU grant.

In February 1998, the Board denied these claims. The veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In an April 1999 order, the Court granted a joint motion requesting that the Court vacate the Board's decision and remand the claims for further development and readjudication. In November 1999, the Board, in turn, remanded the claims to the RO to address the Court's directives. In March 2005, to support his claims, the veteran and Dr. Bash testified at a hearing before the undersigned Veterans Law Judge (VLJ) of the Board. In May 2005, the Board once again remanded the claims for still further development. Later that month, the veteran withdrew his request for a waiver of overpayment, which had also been on appeal (see his May 2005 letter). So that claim is no longer before the Board. See 38 C.F.R. § 20.204(c) (2006).

In a more recent May 2006 decision, the RO granted an earlier effective date of February 9, 1989, for the TDIU. The veteran has since continued to appeal, requesting an even earlier effective date. Cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the greatest possible benefit unless he specifically indicates otherwise).

Regrettably, because still further development of the evidence is needed before the Board can issue another decision, this appeal is being REMANDED once again to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part.

REMAND

The Veterans Claims Assistance Act (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002), was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). The VCAA and implementing regulations were enacted during the pendency of this appeal, but insufficient steps were taken by the RO to comply with this law. In particular, the VCAA requires that VA provide notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. See also Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1).

In this particular case in question, the RO provided VCAA notice letters in December 2003, February 2004, and January 2005 regarding several other claims filed by the veteran, but not concerning the specific claims currently at issue on appeal. Information pertaining to these claims has been provided elsewhere, in the statement of the case (SOC), various supplemental SOCs (SSOCs), Court documents, and Board remands. Nonetheless, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that the duty to notify cannot be satisfied by reference to various post-decisional communications.

Instead, there must be "a deliberate act of notification directed to meeting the requirements of section 5103, not an assemblage of bits of information drawn from multiple communications issued for unrelated purposes." See Mayfield v. Nicholson, 444 F.3d 1328, 1334 (Fed. Cir. 2006). But see, too, Mayfield v. Nicholson, No. 02-1077 (U.S. Vet. App. Dec. 21, 2006) (Mayfield III).

So a remand is unfortunately required to ensure the veteran is provided the requisite VCAA notice regarding these particular claims.

Accordingly, the case is REMANDED for the following action:

1. Send the veteran a VCAA letter specifically concerning the claims at issue - for a higher rating for his low back disorder and for an earlier effective date for the TDIU. The letter must notify him of the evidence not of record that is needed to substantiate these claims. Also inform him of the information and evidence VA will attempt to obtain and that he is expected to provide. Finally, request that he provide any evidence in his possession pertaining to the claims.

2. Then readjudicate the claims in light of any additional evidence obtained. If they are not granted to the veteran's satisfaction, send him and his representative an SSOC and give them time to respond to it before returning the case to the Board for further appellate consideration.

No action is required of the veteran or his representative until further notice is received. By this action, the Board intimates no opinion, legal or factual, as to the ultimate disposition warranted in this case.

The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment. The law requires that all claims 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).




Keith W. Allen/p>

Veterans Law Judge, Board of Veterans' Appeals



Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).



Department of Veterans Affairs

drbash@doctor.com

______________________

Craig N. Bash M.D., M.B.A.

Neuro-Radiologist and Associate Professor

Uniformed Services School of Medicine

NPI/UPIN-1225123318

4938 Hampden Lane
Bethesda, Md 20814

Cell/Text 240-506-1556
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