Citation Nr: 0810981 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 05-33 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Service connection or chronic obstructive pulmonary disease (COPD), also claimed a lung condition and emphysema, as a result of herbicide exposure. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for post-traumatic stress disorder (PTSD). 3. Whether new and material evidence has been submitted to reopen a claim for service connection for hepatitis. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for spinal meningitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Lindio, Associate Counsel INTRODUCTION The veteran had active service from March 1966 until March 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In a September 2000 rating decision, the RO determined that the veteran was not competent to handle the disbursement of VA funds and appointed his spouse as his custodian; she is prosecuting this appeal on the veteran's behalf. The United States Court of Appeals for the Federal Circuit, in Boggs v. Peake, 2007-7137 (Fed. Cir. Mar. 26, 2008), recently found that a claim for one diagnosed disease or injury cannot be prejudiced by a prior claim for a different diagnosed disease or injury, when it is an independent claim based on distinct factual bases. Essentially, claims based upon distinctly diagnosed diseases or injuries must be considered separate and distinct claims. The veteran and his guardian have neither claimed nor submitted evidence of any new diagnoses for new claims. As such, the current claims will be considered on the basis of new and material evidence and not as separate and distinct claims. 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 The veteran, through his custodian, seeks service connection for COPD, which is also claimed as a lung condition and emphysema, as a result of herbicide exposure. They also seek to reopen previously denied claims for PTSD, hepatitis, and spinal meningitis. An October 1999 VA hospitalization report states that the veteran was receiving disability benefits from the Social Security Administration (SSA). To date, VA has not attempted to associate any SSA records with the claims folder. Because the records upon which SSA based any determination are relevant to VA's adjudication of his claims, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2006); see also Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). As such, the Board has no discretion and must remand this case. In addition, a review of the record indicates that the veteran was previously denied service connection for hepatitis and residuals of spinal meningitis in a July 1997 rating decision. A claim for PTSD was denied in a January 2000 rating decision, along with a claim to reopen the spinal meningitis claim. These decisions were not appealed within one year of the mailing of the decisions and represent final decisions. 38 C.F.R. § 20.1103. In cases such as this one, to reopen claims, VA must also examine the bases of the prior claim denials and advise the veteran as to what evidence and information is necessary to reopen and to substantiate his claims. Kent v. Nicholson, 20 Vet. App. 1 (2006). Although the veteran and his guardian received notification letters dated in May 2004 and June 2004, these letters failed to comply with the holding in Kent, by not informing the veteran and his guardian of the bases for his prior claim denials. Accordingly, the case is REMANDED for the following actions: 1. The AMC should request, directly from the SSA, complete copies of the medical records that served as the basis for any determination regarding a claim for disability benefits from that agency. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the veteran must be informed in writing. 2. The RO/AMC must advise the claimant of what evidence would substantiate his petition to reopen his claims of service connection for hepatitis and spinal meningitis, initially denied in a July 1997 rating decision, as well as for PTSD, which was initially denied in a January 2000 rating decision. The RO/AMC should comply with the Kent ruling, and advise the claimant of the evidence and information necessary to reopen and substantiate each separate claim. Specifically, he must be advised of the reasons for each claim's respective prior denial and of the information and evidence needed to overcome those reasons. The RO/AMC will also comply with any directives of the Veterans Benefits Administration and advise the veteran and his guardian of the element or elements required to substantiate service connection, found insufficient in the veteran's previous denials. 3. The RO/AMC should obtain any outstanding records from all applicable VA medical centers, specifically including the records from Murfreesboro and Nashville, Tennessee and associate them with the claims file. 4. When the development requested has been completed, the case should again be reviewed by the RO/AMC. 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 appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ STEVEN D. REISS Acting 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) (2006).