Citation Nr: 0305362 Decision Date: 03/21/03 Archive Date: 04/03/03 DOCKET NO. 92-07 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for residuals of a back injury. 3. Entitlement to service connection for hearing loss. 4. Entitlement to service connection for tinnitus. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD John R. Pagano, Counsel INTRODUCTION The appellant served in the Army National Guard (ARNG) from September 1978 to November 1990, with active duty for training from May 17, to July 13, 1979, and from June 23, to August 13, 1980. He also had 2-week periods of annual training. The authority for his discharge was originally coded § 8-27y, and was subsequently corrected to § 8-26y in June 1991. REMAND This case is not yet ready for appellate disposition for the reasons that follow. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096, now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002), that eliminated the well-grounded claim requirements, expanded the duty of VA to notify the appellant and representative, and enhanced VA's duty to assist an appellant in developing the information and evidence necessary to substantiate a claim. VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified as amended at 38 C.F.R. § 3.159). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a) that is effective August 29, 2001. Except for the amendments to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. First, VA has a duty to notify the veteran and his representative (if any) of any information and evidence necessary to substantiate and complete a claim for VA benefits. See VCAA, Section 3(a), (codified at 38 U.S.C.A. §§ 5102 and 5103). Second, VA has a duty to assist the veteran in obtaining evidence necessary to substantiate his claim. See VCAA, Section 3(a) (codified at 38 U.S.C.A. § 5103A). The United States Court of Appeals for Veterans Claims (Court) held in Holliday v. Principi, 14 Vet. App. 280 (2001) that the VCAA was potentially applicable to all claims pending on the date of enactment, citing Karnas v. Derwinski, 1 Vet. App. 308 (1991). Subsequently, however, the United States Court of Appeals for the Federal Circuit held that Section 3A of the VCAA (covering the duty to notify and duty to assist provisions of the VCAA) was not retroactively applicable to decisions of the Board entered before the effective date of the VCAA (Nov. 9, 2000). Bernklau v. Principi, 291 F.3d 795 (Fed. Cir. 2002); See also Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In reaching this determination, the Federal Circuit appears to reason that the VCAA may not apply to claims or appeals pending on the date of enactment of the VCAA. However, the Federal Circuit stated that it was not reaching that question. The Board notes that VAOPGCPREC 11- 2000 (Nov. 27, 2000) appears to hold that the VCAA is retroactively applicable to claims pending on the date of enactment. Further, the regulations issued to implement the VCAA are to be applicable to "any claim for benefits received by VA on or after November 9, 2000, the VCAA's enactment date, as well as to any claim filed before that date but not decided by VA as of that date." 66 Fed. Reg. 45,629 (Aug. 29, 2001). Precedent opinions of the chief legal officer of the Department and regulations of the Department are binding on the Board. 38 U.S.C.A. § 7104(c) (West 1991). For purposes of this determination, the Board will assume that the VCAA is applicable to claims or appeals pending on the date of enactment of the VCAA. This matter arises from a claim filed prior to the effective date of the VCAA. It was certified to the Board for review in November 2002. The record does not show that the RO provided notice to the claimant of the VCAA, including the division of responsibilities between VA and the claimant in obtaining evidence, either by a notice letter of its own or by adopting a copy of the recommended VCAA notice letters provided by the Veterans Benefits Administration. Nor has the RO addressed how the VCAA was satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). 1. The veteran may submit additional evidence and arguments in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO must review the claims file and ensure that all notification and development action required by the VCAA is completed. 3. Upon completion of the RO should readjudicate the issues on appeal. 4. If any issue on appeal remains denied, the veteran should be furnished a supplemental statement of the case. He should also be afforded the appropriate time period in which to respond, at his option, as provided by governing regulation. Once the foregoing has been accomplished, the case should be returned to the Board for further appellate consideration. The purpose of this REMAND is to accord the appellant due process of law. The Board intimates no opinion regarding the final disposition of the claim. _________________________________________________ RICHARD B. FRANK 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) (2002).