Citation Nr: 0017937 Decision Date: 07/10/00 Archive Date: 07/14/00 DOCKET NO. 94-11 474 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for a psychiatric disorder other than post traumatic stress disorder (PTSD). 2. Whether new and material evidence has been submitted to reopen a claim of service connection for PTSD. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Associate Counsel INTRODUCTION The appellant served on active duty from September 1964 to September 1967. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a February 1993 rating decision of the Newark, New Jersey, Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in August 1997. FINDING OF FACT The appellant has not been in contact with the RO or other VA personnel within one year period following the mailing of development letters to him in 1998 and 1999 to his last known address of record for receipt of correspondence; the last contact VA had with the appellant of any kind was in August 1996. CONCLUSION OF LAW The appellant has abandoned his claim seeking entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and the appeal is dismissed. 38 C.F.R. § 3.158(a) (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Where evidence is 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 one year after the date of the request, the claim will be considered abandoned. See 38 C.F.R. § 3.158(a) (1999). When a claim is abandoned, further action will not be taken unless a new claim is received. Id. The appellant's claim for service connection for the conditions listed on the title page was filed in July 1992. See Statement in Support of Claim, VA Form 21-4138 (June 25, 1992). His address on the claim form was 50 N. 6th Street, Newark, New Jersey, and this address remained unchanged throughout the lengthy pendency of the appeal until August 1996 when he filed a Form 21-4138 regarding another claim (right ear disorder) and reported his address as 280 Eastern Parkway #9, Irvington, New Jersey. The last known contact with the appellant followed shortly thereafter when he was seen for a VA audio-ear disease compensation examination in December 1996. His address recorded on this examination report was the Irvington, New Jersey address. Whether the appellant intended to change his address for receipt of correspondence in unknown, but thereafter, the record reflects that the RO continued to send correspondence to the aforementioned Newark address, including a development letter sent out in January 1998 to his Newark address (50 N. 6th St.) regarding the issues on appeal. However, this letter was returned by the Postal Service as undeliverable due to no forwarding address. Upon receipt of the returned mail it appears that the RO realized that his address had changed because in January 1998 an "Address Information Request," VA Form 3443, was mailed to the United States Postmaster in Newark, New Jersey, in order to ascertain a current mailing address for the appellant. In response, the Newark Postmaster advised the RO that the appellant had moved and left no forwarding address for receipt of mail. Further development efforts undertaken by the RO in 1999 to achieve compliance with the Board's August 1997 remand were frustrated because no contact with the appellant was ever established. Thereafter, the record reflects that after correspondence sent to the appellant in February 2000 was returned by the Postal Service as "attempt not known," the RO attempted to locate the appellant by Target and internet search inquires, but to no avail as well. See Report of Contact, VA Form 119, dated March 1, 2000. Finally, the Board notes that the appellant's former representative revoked its power of attorney in October 1999 because the appellant had had no contact with the representative since the Board's August 1997 remand. As a result of the above, the actions taken by the RO to comply with the Board's remand instructions of August 1997 were for the most part unsuccessful due to the appellant's failure to respond to development-letter inquires of 1998 and 1999, or otherwise involve himself in any manner in the prosecution of the specific issues raised by this appeal since he appeared at a hearing before a Hearing Officer in October 1993, nearly seven years ago at this point. In addition, as noted, his former representative revoked its power of attorney in October 1999 because it does not know of his whereabouts and because he had taken no action to assist in the development of his appeal. While the RO sent correspondence to an obviously out-dated address following the Board's August 1997 remand, the record nevertheless reflects that the appellant evidently moved sometime between 1996 and 1998, but left no forwarding address for receipt of mail. In any case, the RO's most recent inquiry of March 2000 reflects that his old Newark address for receipt of correspondence in the Target system had not changed and that he had no listing via internet search. Hence, while he listed a different address on his Form 21-4138 in August 1996 filed in connection with an unrelated claim, he has nevertheless taken no action to apprise the RO or his former representative of his correct mailing address or otherwise involved himself in any manner in the development of this appeal. With the above-cited facts and procedural history for consideration, the Board concludes that the appellant has abandoned his claim on appeal filed in July 1992 for the psychiatric disorders claimed as service connected. He has abandoned this claim as a result of his failure to keep the RO apprised of his current mailing address. It appears that his non-receipt of correspondence issued since the Board remanded this case in August 1997 is attributable to his having moved and not informed the RO of his correct address for receipt of mail. The RO and his former representative have each independently tried to locate him, but to no avail. Thus, in the absence of any objective evidence showing impropriety by VA with regard to the handling of his claim to this point, given the concerted efforts taken by the RO to locate him since 1998, and in view of the fact that he has utterly failed to respond to the RO's efforts to further develop his claim for appellate review, his claim is considered abandoned. With respect to this matter, it is not shown by the evidentiary record in this case that the RO acted improperly in its repeated attempts to notify the appellant of the actions taken to adjudicate his claim. See Thompson v. Brown, 8 Vet. App. 169 (1995) (VA may rely on "last known address" shown of record) and Mindenhall v. Brown, 7 Vet. App. 271 (1994) (presumption of regularity of administrative process in the absence of clear evidence to the contrary). What is shown by the record is a complete disregard by the appellant for the prosecution of his claim on appeal. In this regard, it is shown by the evidence that the appellant has not attempted to stay in contact with the RO or other VA personnel or otherwise assist in the development of his claim for a number of years. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (quoting Hyson v. Brown, 5 Vet. App. 262 (1993), the burden is on the claimant to keep VA apprised of his whereabouts; if he does not do so, there is no burden on the part of the VA to "turn up heaven and earth to find him"). He has evidently moved and left no forwarding address with any interested party, to include his former representative. Accordingly, the Board will dismiss this appeal as an abandoned claim. The Board acknowledges that it has decided the present appeal as to this claim on a different legal basis than the RO did. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). However, the Board concludes that the appellant has not been prejudiced by the decision herein. The Board has considered the pertinent law and regulations which apply to all VA disability compensation claims and appeals to the Board which arise from such claims. The Board merely concludes that the appellant did not meet the legal requirements necessary to prosecute his claim for benefits pursuant to 38 C.F.R. Part 3 et seq. Determining whether a claim has been abandoned is a threshold obligation inherent in the VA's adjudicative process. See Reyes v. Brown, 7 Vet. App. 113 (1994); see also AB v. Brown, 6 Vet. App. 35 (1993) (although question of jurisdiction had not been raised or considered below, the U. S. Court of Appeals for Veterans Claims held that jurisdictional matters could be raised at any stage of a judicial proceeding by any party or by the court on its own motion). Accordingly, a remand is not required to readjudicate these issues on the basis of an abandoned claim. Sonyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to notice-and-comment requirements in the law does not dictate an unquestioning, blind adherence in the fact of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran). ORDER The appeal is dismissed. CHRISTOPHER P. KISSEL Acting Member, Board of Veterans' Appeals