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).
