Citation Nr: 0814061 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-19 717 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Whether new and material evidence has been submitted in order to establish service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD LouElla Kuta, Associate Counsel INTRODUCTION The veteran served on active duty from January 1973 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina, which denied the benefits sought on appeal. The appeal as to the reopening of the claim of service connection for PTSD 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 This matter has been certified to the Board for review of the issue of whether new and material evidence has been submitted to warrant reopening of the veteran's claim of entitlement to service connection for PTSD, last denied in November 1997. Of late, the veteran's principal contention is that he does not seek to reopen the PTSD claim. Instead, he argues that it has been his constant intention to seek service connection for an anxiety disorder - a claim he filed at the time the RO received what was construed as an application to reopen the claim of service connection for PTSD. He argues that the RO as the agency of original jurisdiction erred in processing his petition to reopen the claim pertaining to PTSD. Given the record of proceedings and the veteran's present contention, the Board is unable to undertake appellate review, as the Board cannot issue factual or legal findings. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993) (Holding that when the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby). Although the RO/AMC will make specific factual and legal findings, and the Board has not undertaken review of the claim with a view towards it merits, review of the relevant procedural history indicates that: 1. In November 1997, the veteran was denied service connection for PTSD. Although the veteran filed a notice of disagreement in January 1998 and a Statement of the Case was issued, the veteran did not file a substantive appeal. The November 1997 denial is therefore final. See 38 U.S.C.A. § 7105(a)(Appellate review before the Board is initiated by the filing of a notice of disagreement, and is completed by a substantive appeal after a statement of the case is furnished). Roy v. Brown, 5 Vet. App. 554, 556 (1993). 2. In October 2004, the veteran through his representative submitted a "claim for service connection" for "anxiety and stress." By letter dated in January 2005, and pursuant to VA's duty to notify and assist, the RO forwarded a letter to the veteran with a copy to his representative, notifying the veteran of what evidence would substantiate the claim of service connection for an "anxiety condition and PTSD." The veteran was advised that his PTSD claim had been denied in November 1997, and he was required to submit new and material evidence to reopen the claim. 3. By letter received in February 2005, the veteran forwarded additional evidence to the RO, indicating that it was reflective of "stress and anxiety connected to original claim of PTSD." In July 2005, the RO advised the veteran by letter of what evidence would substantiate his recently-submitted claim of service connection for hepatitis C, but that it was "working on" his application for service-connected compensation for [an] anxiety condition [and] PTSD. In this letter, the RO requested that the veteran complete a stressor statement ("PTSD Questionnaire"). 4. Because the veteran did not respond to the RO's letter, the RO advised him by letter dated November 29, 2005 that his claim of service connection for anxiety, hepatitis C, and his petition to reopen the claim of service connection for PTSD was denied. 5. On February 2, 2006, correspondence was received from the veteran, in which he stated that he "would like to appeal the decision to deny PTSD." The veteran did not then mention a separate claim of service connection for anxiety or the denial of service connection for an anxiety disorder or hepatitis C. On February 22, 2006, the RO received correspondence from the veteran indicating that he desired review by a Decision Review Office with regard to his PTSD claim. Again, the veteran did not mention the denial of service connection for an anxiety disorder or hepatitis C. On February 24, 2006, the RO acknowledged the veteran's correspondence, specifically as to PTSD. 6. By forwarding letter dated June 2, 2006, the veteran was provided with a Statement of the Case dated May 31, 2006. The Statement of the Case indicated that the issue on appeal was "Service Connection for PTSD." Provisions of law pertaining to the reopening of claims was provided. In June 2006, the veteran's Substantive Appeal (VA Form 9) was received. The veteran argued that "[a] claim was submitted during the time period that [he] was seeing [a named physician] . . . to the VA [with] a copy of his assessment regarding PTSD. His conclusion was very clear and confirmed PTSD . . . [the named physician's] assessment should be sufficient." 7. In January 2007, the RO again advised the veteran that it was continuing to consider his appeal, and that it was an additional request for information regarding his PTSD claim. The RO again requested that the veteran complete a PTSD questionnaire. In February 2007, the veteran submitted his response to the RO's request "regarding [his] PTSD claim." After detailing his alleged stressors, the veteran reiterated that his treating physician had "documented the issue that relate (sic) to [his] PTSD. 8. In November 2007, the RO forwarded a Supplemental Statement of the Case as to the issue of whether new and material evidence had been submitted to reopen a claim of service connection for PTSD. In December 2007, the veteran's representative at the Winston-Salem, North Carolina RO proffered argument that he had submitted evidence sufficient to reopen the claim of service connection for PTSD. In his brief dated April 17, 2008, the veteran through his representative argues that he never sought to reopen his claim of service connection for PTSD. The remainder of his contentions raise the issue of whether finality attached to the November 2005 denial of service connection for an anxiety disorder. Absent a specific withdrawal of the issue of reopening of the PTSD claim, it appears that the issue on appeal remains pending. 38 U.S.C.A. § 7105(d)(5) (Providing that the Board may dismiss any appeal which fails to allege specific error of fact or law in determination appealed); 38 C.F.R. § 20.204(b) (As to the specifics of withdrawal of an appeal). With regard to his contention of having continuously sought service connection for an anxiety disorder, as is noted above the RO did not construe the veteran's notice of disagreement as encompassing the November 2005 rating decision denying his claim of service connection for an anxiety disorder. See Gallegos v. Principi, 283 F. 3d 1309 (2002) [Observing that a valid Notice of Disagreement must (1) express disagreement with a specific determination of the agency of original jurisdiction; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO's decision, and; (5) be filed by the claimant or the claimant's representative.]. These issues involve determination of appellate jurisdiction and have not been addressed by the RO. Specifically, the certified issue of whether new and material evidence has been submitted to reopen a claim of service connection for PTSD must be REMANDED to the RO via the AMC for the following actions, in conjunction with the RO's undertaking legal findings as to the anxiety disorder claim: 1. Contact the veteran and through his representative, and ascertain whether the veteran desires to continue his appeal relative to the reopening of the claim of service connection for PTSD. Advise the veteran that: If he wishes to continue the appeal, he may submit any VA, non-VA, or other medical treatment for the disorder(s) at issue that is not evidenced by the current record, and any further information to submit relative to the occurrence of the claimed stressors. If the veteran submits any further information regarding PTSD or his claimed stressors, undertake any appropriate development including the conduct of any clarifying VA examinations or referral of the information regarding claimed stressors to any appropriate governmental or historical records depositories. If he wishes to withdraw the appeal of service connection for PTSD, he or his representative should submit a written statement to that effect. 2. Contemporaneous with its action in paragraph 1, above, clarify the veteran's intention with regard to the claim of service connection for an anxiety disorder. If appropriate, adjudicate the issue of whether the veteran's claim of service connection for an anxiety disorder remains pending; or whether he filed a timely notice of disagreement as to the denial of service connection for an anxiety disorder. If and only if the veteran argues that the claim of service connection for an anxiety disorder was adjudicated and not appealed, ascertain if the veteran wishes to reopen a claim of service connection for an anxiety disorder. Upon the veteran's response, take appropriate action. 3. The RO/AMC should take such additional development action as it deems proper with respect to the claims, including the conduct of any other appropriate VA examinations, and follow any applicable regulations and directives implementing the provisions of the VCAA as to its notice and development. If any such action does not resolve the claims, the RO/AMC shall issue the appellant a Supplemental Statement of the Case. Thereafter, the case should be returned to the Board, if in order. The veteran 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). By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. (CONTINUED ON NEXT PAGE) 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). _________________________________________________ VITO A. CLEMENTI 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).