Citation Nr: 0322771 Decision Date: 09/04/03 Archive Date: 09/08/03 DOCKET NO. 99-16 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Mark R. Lippman, Attorney ATTORNEY FOR THE BOARD Raymond F. Ferner, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, that denied the benefit sought on appeal. The veteran, who had active service from July 1943 to March 1946, appealed that decision to the BVA, and the case was referred to the Board for appellate review. In a decision dated in January 2001 the Board affirmed the RO's denial of the benefit sought on appeal. The veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in May 2001, the Court vacated the Board's decision and returned the case to the Board for further appellate review. A BVA decision dated in March 2002 again denied the benefit sought on appeal. The veteran sought review of the Board's decision from the Court, and in an Order dated in December 2002 the Court granted the party's Joint Motion to Remand and to Stay Proceedings (Joint Motion) and vacated the Board's decision. The case was subsequently returned to the Board for further appellate review. REMAND As a preliminary matter, the Board is required to address the Veterans Claims Assistance Act of 2000 (VCAA) that became law in November 2000. The VCAA provides, in pertinent part, that VA should make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by VA. The VCAA also requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2002). Unfortunately, the record reflects that the veteran's claim was not adjudicated by the RO under the VCAA. In this regard, the Board observes that the RO completed adjudication of the veteran's claim and forwarded the claims file to the Board in December 1999 prior to the enactment of the VCAA. Nevertheless, in the Board's January 2001 and March 2002 decisions the Board endeavored to explain that the substance of the VCAA had been satisfied by the RO's actions. However, the Court on two occasions has found the Board's discussion and explanation insufficient. As was noted in the Joint Motion, in the case of Quartuccio v. Principi, 16 Vet. App. 183 (2002), the Court held that the failure by the BVA to enforce compliance with the requirement under 38 U.S.C.A. § 5103(a) for VA to inform a claimant of information or evidence necessary to substantiate the claim, as well as to inform the claimant which evidence VA will seek to provide and which evidence the claimant is to provide, is remandable error. The Joint Motion also noted that in Charles v. Principi, 16 Vet. App. 370 (2002), the Court found that although the BVA stated in its decision that the notice and duty to assist provisions under the VCAA had been satisfied, the Board failed to discuss adequately the amended duty to notify. Specifically, the Court noted that the BVA failed to discuss the requirements to notify a claimant of the information necessary to substantiate his claim, and did not indicate what evidence, if any, would be gathered by the appellant and which evidence would be provided by VA. Additionally, the Court found that the BVA decision failed to discuss whether the documents referenced in its finding that the duty to notify had been satisfied, or whether any other document in the record actually satisfied the notice requirement as set forth in the statute. Lastly, the Joint Motion noted that in the instance case, while the BVA addressed the duty to notify the appellant and concluded that the duty to notify had been satisfied, the Board did not discuss which documents provided the required notice under 38 U.S.C.A. § 5103(a). Joint Motion at 4-5. Clearly, the RO did not provide the veteran with notice of the VCAA, including the division of responsibilities between VA and the veteran in obtaining that evidence, since the RO completed the adjudication of the veteran's claim long before the VCAA was enacted. While in theory, the Board has the authority to consider law not considered by the RO, a recent case from the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated a portion of the VA regulation the Board utilized to notify a claimant of the VCAA pursuant to 38 U.S.C.A. § 5103. See Disabled American Veterans, et. al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). In that case, the Federal Circuit held that 38 C.F.R. § 19.9(a)(2)(ii), which required the Board to provide the notice required by 38 U.S.C.A. § 5103(a) and provide a claimant not less than 30 days to respond to the notice, was invalid because it was contrary to 38 U.S.C.A. § 5103(b), which provided a claimant one year to submit evidence. Therefore, at this point in time, the Board cannot provide the notice to the appellant of the provisions of the VCAA. Further, the Board notes that the United States Court of Appeals for the Federal Circuit held in Kuzma v. Secretary of Veterans Affairs, No. 03-7032 (Fed. Cir. Aug. 25, 2003) that Section 3(a) of VCAA (codified at 38 U.S.C.A. § 5103(a)) does not apply retroactively, and overruled Karnas v. Derwinski, 1 Vet. App. 308 (1991) and Holliday v. Principi, 14 Vet. App. 280 (2001) to the extent they conflict with the Supreme Court's and the Federal Circuit Court's binding authority. However, while VA may not necessarily be precluded from providing notice to the appellant and his representative of the information and evidence necessary to substantiate the current claim for VA benefits and of the division of responsibility for obtaining evidence, VA, in fact, has nonetheless been directed by Court Order in this case to consider this appeal with application of the provisions of the VCAA. Therefore, in order to give the veteran every consideration with respect to the present appeal, to ensure due process, and to comply with the Court's Order in this case, it is the Board's opinion that further development of the case is necessary. Accordingly, this case is REMANDED for the following actions: The RO should consider the veteran's claim under the VCAA. In doing so, the RO should ensure that all notification and assistance requirements of the VCAA are satisfied, including notice to the appellant of the evidence necessary to substantiate his claim and the division of responsibilities between VA and the veteran in obtaining that evidence. When the development requested has been completed, the case should again be reviewed by the RO under the VCAA based on all of the evidence of record. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, to ensure due process and to comply with the Court's Order in this case, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. No action is required of the veteran unless he is notified. ____________________________________________ S. L. KENNEDY 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).