Citation Nr: 0812064 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-33 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Louis A. deMier, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from September 1965 to February 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The initial claim is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In August 1966, the RO denied service connection for a hearing loss in both ears. 2. In September 1966, the RO received a written communication from the veteran that expressed dissatisfaction and disagreement with the August 1966 adjudication and that evidenced a desire for review of that determination. 3 The RO did not respond to the timely September 1966 notice of disagreement with a statement of the case. CONCLUSIONS OF LAW 1. The RO received a timely notice of disagreement with its August 1966 decision denying service connection for a hearing loss in both ears. 38 C.F.R. § 3.113 (1966). 2. The August 1966 RO decision that denied service connection for a hearing loss in both ears is not final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.26, 20.201, 20.300, 20.302, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The United States Court of Appeals for the Federal Circuit has held that the first determination which the Board must make is whether an issue is properly before it. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In this case, the issue as listed in the statement of the case and as certified to the Board is simply service connection for a hearing loss, bilateral. However, the notice letter sent in compliance with the Veterans Claims Assistance Act of 2000 (VCAA) told the veteran that he had to submit new and material evidence to reopen his claim. More importantly, the February 2004 rating decision and the August 2005 statement of the case told the veteran that the claim was being denied because he had not submitted new and material evidence. Thus, it would appear that the issue is whether new and material evidence has been received to reopen a claim of entitlement to service connection for a hearing loss, bilateral. Once a claim is denied, and not appealed, it is final and can only be reopened by submitting evidence that is both new and material. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). This is a higher evidentiary threshold than is required for an original claim. Thus, the RO is requiring that the veteran submit new and material evidence before it will reopen and reconsider the claim. What constitutes new and material evidence depends on the evidence at the time of the previous denial. See Evans v. Brown, 9 Vet. App. 273 (1996). In August 1966, the RO denied service connection for a hearing loss of both ears. The veteran promptly responded and the RO received his letter in September 1966. In his letter, the veteran rehearsed the facts as he understood them. He wrote "That everything described above proves that my condition of the ears is connected with the military service." [English translation.] This is clearly an expression of disagreement with the RO's decision. He further wrote, "That I would appreciate your checking the medical records and my profile during service." [English translation.] This is clearly a request for further review. While the veteran did not use the words "notice of disagreement," specific wording was not required. In 1966, all that was required for a notice of disagreement was: Rule 13; notice of disagreement. A written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination of an agency of original jurisdiction will constitute a notice of disagreement. The notice should be in terms which can be reasonably construed as evidencing a desire for review of that determination. It need not be couched in specific language. Specific allegations of error of fact or law are not required. 38 C.F.R. § 19.113 (1966). Since the written communication from the veteran expressed dissatisfaction and disagreement with the August 1966 adjudication and evidenced a desire for review of that determination, it was a notice of disagreement (NOD). Under the regulations in effect at that time, the RO had 3 options in response to the NOD: do further development, allow the claim, or send the veteran a statement of the case (SOC). 38 C.F.R. § 19.114 (1966). The RO failed to take any action in accordance with the regulation. Of course, if the RO had any doubt that the letter was a NOD, it could have written to the veteran and asked him to clarify his intention it that regard. In response to the NOD, the RO sent the veteran a letter, in September 1966, it did not ask for clarification but simply restated the RO analysis of his claim and told him that it would take no further action. One troubling aspect of this letter is that while the notice of the August 1966 RO decision advised the veteran of his appellate rights, the September 1966 RO letter advised him that no further action would be taken and did not advise him of any appellate rights. The RO effectively foreclosed any further action by the veteran to pursue an appeal. Given these proceedings in 1966, the Board must find that the August 1966 RO decision is not final but remains open, awaiting a SOC. ORDER The veteran's original claim for service connection for a bilateral hearing loss disability remains open, in appellate status. REMAND Where a claimant files a NOD and the RO has not issued a SOC, the issue must be Remanded to the RO for a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). In as much as the initial claim is open, the veteran must be afforded notice complying with the Veterans Claims Assistance Act of 2000 (VCAA) and afforded an opportunity to participate effectively in the processing of his claim. Accordingly, the case is REMANDED for the following action: 1. Issue a VCAA complaint notice for an initial claim for service connection for a bilateral hearing loss disability. 2. After the veteran is afforded an opportunity to participate effectively in the processing of his claim, it should be readjudicated on a de novo basis, considering all evidence both old and new. If the decision remains adverse, the veteran and his representative should be furnished a SOC and afforded the applicable time in which to respond. The veteran and his representative are cautioned that unless they file a timely substantive appeal in response to the SOC, the Board will not have jurisdiction to consider an appeal. 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). ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs