Citation Nr: 0810074 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 02-00 243A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hepatitis C, to include as secondary to exposure to herbicides. 2. Entitlement to service connection for nerve damage in the hands and wrists, to include as secondary to exposure to herbicides. (The issues of entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as secondary to exposure to herbicides and service connection for porphyria cutanea tarda, to include as secondary to exposure to herbicides are addressed under separate cover.) REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Associate Counsel INTRODUCTION The veteran had honorable service from January 1971 to October 1973. His period of service from October 1973 to June 1974 was under conditions other than honorable. The current appeal arose from a November 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In November 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), which redefined VA's duty to assist, enhanced its duty to notify a claimant as to the information and evidence necessary to substantiate a claim, and eliminated the well-grounded-claim requirement. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326 (2007) (regulations implementing the VCAA). This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). The Act and the implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim, unless there is no reasonable possibility that such assistance would aid in substantiating the claim. VA is also required to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of this VCAA-duty-to-notify-notice, VA is required to specifically inform the claimant which portion of the information and evidence, if any, is to be provided by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. Additionally, during the pendency of this appeal, on March 3, 2006, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In this case, the veteran was issued a letter in August 2004 which in part addressed whether new and material evidence has been received to reopen a claim for entitlement to service connection for hepatitis C. However, the Board notes that the veteran's hepatitis C claim was originally denied in a November 2000 rating decision and the veteran subsequently timely perfected his appeal of the issue. Thus, the issue before the Board is entitlement to service connection for hepatitis C rather than whether new and material evidence has been received to reopen the claim. The issue of service connection for nerve damage in the hands and wrists, to include as secondary to exposure to herbicides, has also been appealed but the veteran has not been provided any VCAA notice. As the veteran has not been provided a proper notice letter regarding VCAA and its applicability to his appeal, on remand such a letter must be issued. Also, on remand proper notice is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs the veteran about disability ratings and effective dates for the award of benefits, and also includes an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. Such notice must be provided prior to the adjudication of the issues on appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed.Cir. 2006). It is the RO that must insure compliance with the notice provisions in the first instance. See Quartucccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). Additionally, the RO should ensure that all development with the hepatitis C claim is done, including sending the veteran a questionnaire about his hepatitis C risk factors. Accordingly, this case must be remanded. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims folder and ensure that all notification and development action required by the VCAA are fully complied with and satisfied. Specifically, the RO should: (a) Notify the veteran of the information and evidence necessary to substantiate his claims; (b) Notify the veteran of the information and evidence he is responsible for providing; (c) Notify the veteran of the information and evidence VA will attempt to obtain, e.g., that VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency and will make as many requests as are necessary to obtain relevant records from a Federal department or agency; (d) Notify him that he should submit such evidence or provide VA with the information necessary for VA to obtain such evidence on his behalf; (e) Request that the veteran provide any evidence in his possession that pertains to his claims; and (f) Provide the veteran with an explanation as to the information or evidence needed to establish disability ratings and effective dates for his claims. 2. Thereafter, the RO should readjudicate the issues on appeal. All applicable laws and regulations should be considered. If the benefits sought on appeal remain denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2007). _________________________________________________ THOMAS J. DANNAHER 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) (2007).