Citation Nr: 1133503	
Decision Date: 09/09/11    Archive Date: 09/15/11

DOCKET NO.  09-08 358	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Whether new and material evidence has been presented to reopen a claim for service connection for post traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Evan M. Deichert, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1970 to June 1972.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision by the Department of Veterans Affairs (VA) Buffalo, New York Regional Office (RO). 

The veteran appeared and testified at a Travel Board hearing held before the undersigned Veterans Law Judge in October 2009.

This is the second time that this case has come before the Board.  In a January 2010 decision, the Board denied the Veteran's request to reopen his claim, finding that he had not submitted new and material evidence.  The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court).  In February 2011, the Court approved a Joint Motion for Remand which vacated the Board's January 2010 decision and remanded the case.  

The Board recognizes that where a case has been remanded to the Board, the order of the Court constitutes the law of the case, and the Board is bound to follow the Court's mandate.  See Winslow v. Brown, 8 Vet. App. 469, 472 (1996).  Here, however, as the Veteran's claim is being dismissed because the benefit sought has since been granted, no discussion of the reasons for the remand or its particular directives is warranted.  


FINDING OF FACT

The Buffalo RO granted service connection for PTSD in a June 2011 rating decision.  




CONCLUSION OF LAW

The criteria for dismissal of a Substantive Appeal for the issue of service connection for post traumatic stress disorder have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.202 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Pursuant to both law and regulation, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202.  Here, though the Veteran has filed a Substantive Appeal with respect to a denial of service connection for his claimed PTSD, for the reasons that follow, his appeal must be dismissed.  

A brief recitation of the procedural history of the Veteran's claim is instructive.  The Veteran first sought service connection for PTSD in July 2000.  The RO denied his claim in a March 2001 rating decision.  The Veteran filed a Notice of Disagreement in May 2001, and the RO issued a Statement of the Case in June 2001.  Following the issuance of the Statement of the Case, the Veteran submitted additional evidence regarding his claim.  The RO thus issued a new rating decision in November 2002 that again denied the Veteran's claim for service connection for PTSD.  The Veteran filed a timely Notice of Disagreement, and the RO issued a Statement of the Case in March 2003.  As the Veteran did not file a Substantive Appeal, his claim became final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2010).  

The Veteran sought to reopen his denied claim for service connection in March 2007.  The RO again denied his claim in September 2007.  The Veteran filed a Notice of Disagreement in June 2008, and the RO issued a Statement of the Case in January 2009.  The Veteran filed a timely Substantive Appeal, and he testified before the undersigned Board member in an October 2009 Travel Board hearing.  The Board issued a decision in January 2010, denying the Veteran's claim to reopen his previously denied claim.  The Veteran appealed this decision to the Court which in February 2011 approved the parties' Joint Motion which remanded the case to the Board.  

In March 2011 - following the Court's approval of the Joint Motion but before this case had been returned to the Board - the Veteran again sought service connection for his claimed PTSD.  In a June 2011 rating decision, the RO granted the Veteran service connection for PTSD, assigning a 50 percent disability rating.  

Given the foregoing, it is obvious that the Veteran's claim to reopen has become moot.  The claim before the Board is whether the Veteran has presented new and material evidence sufficient to reopen his claim for service connection for PTSD.  The RO, however, has already granted service connection for this issue; this action supersedes anything that the Board could do.  Service connection for this issue having been established, there remain no allegations of error of fact or law for appellate consideration, and the Veteran's claim for service connection is rendered moot.  Accordingly, the Board does not have jurisdiction to review this claim, and it must be dismissed.  38 U.S.C.A. § 7105; 38 C.F.R. § 20.202.

Finally, the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  

As the Veteran's claim for service connection has already been granted and the Board is dismissing this claim, the duties to notify and to assist are no longer at issue.  








ORDER

The appeal of the claim of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for post traumatic stress disorder is dismissed.



____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs