Citation Nr: 0123159 Decision Date: 09/24/01 Archive Date: 10/02/01 DOCKET NO. 96-40 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Whether new and material evidence has been submitted to change a prior determination of willful misconduct for injuries incurred in August 1978. 2. Whether the veteran filed a timely appeal with a November 1994 rating decision which found that new and material evidence had not been submitted to reopen a claim for service connection for a mental disorder. REPRESENTATION Appellant represented by: Sean Kendall, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Douglas E. Massey, Associate Counsel INTRODUCTION The veteran had active service from June 1977 to June 1980. His claim initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. This matter was previously before the Board. In March 1998, the Board denied each of the claims on appeal. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2000 order, the Court vacated the Board's decision and remanded the matter back to the Board for development consistent with the parties' Joint Motion for Remand and to Stay Further Proceedings (joint motion). The case is once again before the Board for review. The issue concerning the timeliness of the veteran's appeal involving a November 1994 rating decision which found that new and material evidence had not been submitted to reopen a claim for service connection for a mental disorder will be discussed in the REMAND portion of this decision. FINDINGS OF FACT 1. An April 1993 Board decision found no new and material evidence had been submitted to change a prior determination of willful misconduct for injuries incurred in August 1978. 2. The evidence associated with the claims file subsequent to the April 1993 Board decision does not demonstrate that the veteran's injuries were not the result of willful misconduct, or otherwise establish any material fact which was not already of record at the time of the prior denial. 3. All evidence necessary for an equitable resolution of the issue involving whether new and material evidence has been submitted to change a prior determination of willful misconduct for injuries incurred in August 1978 has been obtained, and no further development is necessary to comply with the Veterans Claims Assistance Act of 2000. CONCLUSIONS OF LAW 1. The April 1993 Board decision which found no new and material evidence to change a prior determination of willful misconduct for injuries incurred in August 1978 is final. 38 U.S.C.A. § 7104 (West 1991 & Supp. 2000); 38 C.F.R. § 20.1100 (2000). 2. The evidence received since the April 1993 Board decision is not new and material; thus, the requirements to reopen the veteran's claim with respect to whether injuries sustained in August 1978 were the result of willful misconduct have not been met. 38 U.S.C.A. § 5108 (West 1991 & Supp. 2000); 38 C.F.R. §§ 3.156, 20.1105 (2000). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran claims that he suffers from disabilities as a result of injuries sustained during an altercation with military police while on active duty in August 1978. He claims excessive force was used during his arrest and confinement for drinking while intoxicated (DWI). The VA has a duty to assist the veteran in developing facts which are pertinent to that claim. See Veterans Claims Assistance Act of 2000, 66 Fed. Reg. 45,630 (Aug 29, 2001) (to be codified as amended at 38 C.F.R. § 3.156(a)). In the present case, the Board finds that all relevant facts have been properly developed, and that all relevant evidence necessary for an equitable resolution of the claim to reopen a prior finding of willful misconduct for injuries received in August 1978 has been identified and obtained by the RO. That evidence includes the veteran's service medical records, records of treatment following service, reports of VA rating examinations, and statements and argument made by and on the veteran's behalf. The VA has met the duty to identify evidence, as it has communicated to the veteran the need to submit evidence showing that his behavior on the night he was arrested in August 1978 did not constitute willful misconduct. The Board has not been made aware of any additional relevant evidence which is available in connection with this appeal. Therefore, no further assistance to the veteran regarding the development of evidence is required. Id. I. Legal Criteria Service connection may be granted only when a disability was incurred or aggravated in the line of duty. 38 U.S.C.A. §§ 5107, 1131 (West 1991 & Supp. 2000); 38 C.F.R. § 3.303 (2000). The term "in the line of duty" means an injury or disease incurred or aggravated during a period of active service unless such injury or disease was the result of the veteran's own willful misconduct or, for claims filed after October 31, 1990, was a result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.1(m) (2000). Willful misconduct means an act involving conscious wrongdoing or known prohibited action. A service department finding that injury, disease or death was not due to misconduct will be binding on the Department of Veterans Affairs unless it is patently inconsistent with the facts and the requirements of law administered by the Department of Veterans Affairs. Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Mere technical violation of police regulations or ordinances will not per se constitute willful misconduct. Willful misconduct will not be determinative unless it is the proximate cause of the injury, disease or death. 38 C.F.R. § 3.1(n) (2000). II. Procedural Background This claim was previously denied. Following the veteran's separation from service he filed a claim to establish service-connected for certain injuries. In a September 1981 administrative decision, the RO determined that injuries sustained by the veteran in August 1978 were the result of his own willful misconduct. That decision was based on service medical records which documented a history of numerous altercations between the veteran and military police, as well as an August 1978 report from the Office of the Provost Marshal, Camp Pendelton, California, which detailed the events regarding the veteran's arrest by military police. This report documented the veteran's altercation with military police immediately following a traffic stop in which he failed a sobriety test. The veteran became combative and physical force was used to subdue him. The veteran apparently became violent while handcuffs were being removed, and a knee was placed in his back to restrain him. It was noted that the veteran struck his mouth on the floor. On September 6, 1978, the veteran was found guilty of DWI. The veteran appealed the September 1981 administrative decision. As a result, a March 1984 Board decision denied service connection for a low back disorder, finding that the veteran had been treated for back problems in service but that no current back pathology was identified. The record also shows that a September 1981 rating decision granted service connection for residuals of a fractured mandible and assigned a noncompensable (zero percent) evaluation. That decision noted that on July 21, 1978, prior to his arrest, the veteran was struck on the left side of his face while in the mess hall and sustained a fracture of the mandible. Thereafter, the veteran attempted to reopen his claim of entitlement to service connection for injuries sustained in August 1978. He submitted statements describing how police used excessive force during his arrest in August 1978. A January 1992 rating decision declined to reopen the veteran's claim, finding that no new and material evidence had been submitted concerning the issue of willful misconduct. In April 1993, the Board agreed and found that the veteran's statements were not material and therefore insufficient to reopen the claim. The Board pointed out that the veteran's statements failed to show that any injuries he sustained in August 1978 were not occasioned by his willful misconduct. III. New and Material Evidence The April 1993 Board decision is final and not subject to revision upon the same factual basis. See 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100 (all Board decisions are final on the date stamped on the face of the decision, unless the Chairman orders reconsideration, or one of the other exceptions to finality apply.) However, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See 38 U.S.C.A. § 5108; see also Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Until recently, the method of reviewing a final decision based on new and material evidence was potentially a three- step process. See Elkins v. West, 12 Vet. App. 209, 214-9 (1999). First, the Board had to determine whether the evidence submitted since the prior decision was new and material, which will be discussed below. If "the Board finds that no such evidence has been offered, that is where the analysis must end." Butler v. Brown, 9 Vet. App. 167, 171 (1996). Second, if new and material evidence had been presented, the claim was reopened and must be considered based upon all the evidence of record, to determine whether it was well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). Third, if the claim was well grounded, the VA must comply with the duty to assist in the development of the claim under 38 U.S.C. § 5107(a), and then readjudicate the claim on the merits on the basis of all evidence of record. See Winters v. West, 12 Vet. App. 203, 206 (1999) (en banc) (discussing the three-step analysis set forth in Elkins), overruled on other grounds sub nom. Winters v. Gober, 219 F.3d 1375, 1378 (Fed. Cir. 2000); Elkins, supra. The second and third steps became applicable only when each preceding step was satisfied. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 325 (1999). Recent legislation has significantly impacted the "new and material" analysis, as well as claims for service connection in general, in that a "well-grounded" claim is no longer required. The Board notes that on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, 66 Fed. Reg. 45,630 (Aug 29, 2001) (to be codified as amended at 38 C.F.R. § 3.156(a)). Among other things, this law eliminates the concept of a well-grounded claim, redefines the obligations of the VA with respect to the duty to assist, and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). The question of whether evidence is "new and material" is analyzed under 38 C.F.R. § 3.156(a), which has recently been amended and states: New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. The Court's prior case law mandated that an additional requirement had to be met; that is, whether in light of all the evidence of record, there was a "reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" in the prior determination. See Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). The joint motion pointed out, however, that this additional requirement was invalidated by the Federal Circuit in Hodge v. West, 155 F.3d 1356, 1359 (Fed. Cir., 1998). Because the Board applied the Colvin test in its March 1998 decision, the Court vacated the Board's decision and remanded the matter back to the Board to apply the correct standard. The Board will now apply the correct standard. IV. Discussion The additional evidence associated with the veteran's claims file since the April 1993 Board decision includes private and VA clinical records, testimony and statements of the veteran, and numerous statements from the veteran's family and friends. After analyzing this evidence and applying the correct standard under 38 C.F.R. § 3.156, the Board finds that new and material evidence has not been submitted since the April 1993 Board decision. The medical evidence presented includes discharge summaries from the South Dakota Human Service Center showing treatment for the veteran's paranoid schizophrenia from 1991 to 1994; billing records from Queen of Peace Hospital dated from 1994 to 1997; and a July 2000 VA Dental examination report. The Board notes that these medical reports were not of record at the time of the Board's April 1993 decision. Nevertheless, they are not probative of the central issue of whether injuries sustained in August 1978 were the result of the veteran's own willful misconduct. Accordingly, this evidence does not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Following the Court's order, the veteran submitted a May 2001 examination report from Craig N. Bash, M.D., Neuro- Radiologist. Dr. Bash stated that he had reviewed the veteran's claims file. Dr. Bash, in essence, opined that "the [veteran] experienced excessive force during his military police altercation because he had a new mandibular malocclusion following the event." Dr. Bash also indicated that the veteran's trauma to his lower lumbar spine, when someone jumped on it while in police custody, caused or at least aggravated his undiagnosed bilateral spondylolysis defects and resulted in chronic pain. Although Dr. Bash's report is new, it is not material to the veteran's claim. Evidence is probative when it tends to prove, or actually proves, an issue. Routen v. Brown, 10 Vet. App. 183, 186 (1997), citing Black's Law Dictionary 1203 (6th ed. 1990). To be material, the evidence also should, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim. The Board agrees that Dr. Bash is competent to offer an opinion concerning the etiology of the veteran's disabilities. Here, Dr. Bash has indicated that the veteran's current problems with his jaw and lumbar spine were either caused or aggravated by actions take by military police while on active duty. However, the central issue in this case involves a legal question: whether the veteran's behavior while in police custody constituted willful misconduct. Even assuming for discussion purposes that the veteran sustained injuries as a result of a police action, the issue concerning the propriety of such action cannot be answered by a physician twenty years after the incident. Likewise, Dr. Bash is unable to comment on whether the veteran's behavior at that time constituted willful misconduct under VA regulation. Therefore, Dr. Bash's opinion cannot be considered material as defined by 38 C.F.R. § 3.156. The veteran also submitted lay statements from various friends and family members in support of his claim. Letters by the veteran's parents, sisters, wife and several friends were associated with the claims file in 1996 and 1997, and essentially state that the veteran was unnecessarily assaulted by military police while on active duty. However, none of these individuals claimed to have actually witnessed the August 1978 incident. In a December 1996 letter, R.H. said he served with the veteran at Camp Pendelton at the time of the veteran's arrest. Although R.H. related the veteran's account of the incident in which police jumped on his face and back, at no time did he say he witnessed the incident. In a July 1997 letter, G.S. stated that he also served with the veteran at that time and heard rumors that the veteran had been beaten during an arrest. However, he added: "I do not know the facts or circumstances that transpired during the arrest." Although these statements are not duplicative, they are simply not probative of the central issue of whether the veteran's behavior was considered willful misconduct. None of these individuals actually witnessed the incident, and they merely related the veteran's accounts of what transpired while he was intoxicated and under arrest for DWI. It thus follows that none of these statements can be considered probative of the central issue of whether the veteran's behavior constituted willful misconduct, which was the basis for the denial of the claim. Accordingly, these statements do not raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has also considered the veteran's own statements in support of his claim. Since the April 1993 Board decision, the veteran has submitted numerous written statements which were not previously of record. However, the content of the statement are essentially duplicative of statements previously received and considered, and therefore are not new as defined under 38 C.F.R. § 3.156. As a whole, the evidence received since the April 1993 Board decision, when viewed either alone or in light of all of the evidence of record, does not tend to show that injuries received in August 1978 were not the result of the veteran's own willful misconduct. Therefore, it follows that new and material evidence has not been submitted since the Board's final decision in April 1993. Because the veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen his finally disallowed claim, the benefit- of-the-doubt doctrine may not be applied in this case. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). As the foregoing explains the need for competent evidence demonstrating that injuries sustained in August 1978 did not result from the veteran's own willful misconduct, the Board views its discussion as sufficient to inform the veteran of the elements necessary to reopen his claim. See Graves v. Brown, 8 Vet. App. 522, 524 (1996). As a final note, the Board recognizes that VA has not obtained medical records referred to by the veteran's attorney in a May 2001 letter. In declining to obtain these records, the Board notes that medical evidence would not shed light on the central issue in this case concerning the legality of police action over twenty years ago. As such, the VA is not required to obtain these records. See Veterans Claims Assistance Act of 2000, 66 Fed. Reg. 45,630 (Aug 29, 2001) (to be codified as amended at 38 C.F.R. § 3.156(a)) (stating that the Secretary is not required to provide assistance to a claimant under this section if no reasonably possibility exists that such assistance would aid in substantiating the claim). ORDER No new and material evidence having been submitted to change a prior determination of willful misconduct for injuries incurred in August 1978, the appeal is denied. REMAND The veteran claims he suffers from a mental disorder as a result of service, and that new and material evidence has been submitted to reopen a November 1994 rating decision which denied service connection for a mental disorder. However, before the Board can adjudicate this claim, the issue concerning the timeliness of the substantive appeal must be addressed. The Board shall not entertain an application for review on appeal unless it conforms to the law. 38 U.S.C.A. § 7108 (West 1991). Under VA regulations, an appeal consists of a timely filed Notice of Disagreement (NOD) in writing and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2000). A Substantive Appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. Proper completion and filing of a Substantive Appeal are the last actions a veteran needs to take to perfect an appeal. 38 C.F.R. § 20.202 (2000). A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the veteran or within the remainder of the one- year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302(b) (2000). If a claimant fails to file a Substantive Appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision." Roy v. Brown, 5 Vet. App. 554, 556 (1993). See also YT v. Brown, 9 Vet. App. 195 (1996); Cuevas v. Principi, 3 Vet. App. 542, 546 (1992). Cf. Rowell v. Principi, 4 Vet. App. 9 (1993). In the present case, a November 1994 rating decision found that no new and material evidence had been submitted to reopen a claim for service connection for a mental disorder. The RO notified the veteran of that determination in a letter dated November 16, 1994. On August 18, 1995, the RO received a letter from the veteran's representative indicating that an NOD was filed at the veteran's request. The representative requested that the RO issue an SOC at its earliest convenience. On October 3, 1995, the RO issued an SOC. On April 1, 1996, the RO received a letter from the veteran's representative which enclosed a VA Form 9. Under these circumstances, it does not appear that the veteran's Substantive Appeal was timely filed. Nevertheless, the determination of the timeliness of a Substantive Appeal is an appealable issue as to which a claimant is entitled to file an NOD and as to which he must then receive an SOC. See March v. West, 11 Vet. App. 468, 470 (1998), quoting 38 C.F.R. § 20.101(c) (1998) ("[a]ll claimants have the right to appeal a determination made by the agency of original jurisdiction that the Board does not have jurisdictional authority to review a particular issue"). As the RO did not address the timeliness of the veteran's Substantive Appeal, this case must be remanded for further procedural development. Accordingly, the case is REMANDED to the RO for the following action: The RO should consider the question of whether or not the veteran's Substantive Appeal was timely. If the appeal is determined to be untimely, the RO should provide the veteran and his representative with a Statement of the Case which addresses the issue of whether the veteran has submitted a timely Substantive Appeal concerning the issue of new and material evidence to reopen a claim for service connection for a mental disorder. The Statement of the Case should conform to the requirements of 38 C.F.R. §§ 19.29 and 19.30 (2000). The veteran should be provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The purpose of this REMAND is to assist the veteran in the development of his claim and to afford due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate outcome of the veteran's appeal. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he receives further notice. WARREN W. RICE, JR. Member, Board of Veterans' Appeals