Citation Nr: 1121106 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 05-09 542 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Whether the severance of disability compensation for chronic obstructive pulmonary disease under 38 U.S.C.A. § 1151 was proper. 2. Whether the severance of disability compensation for congestive heart failure under 38 U.S.C.A. § 1151 was proper. 3. Whether the severance of disability compensation for diabetes mellitus under 38 U.S.C.A. § 1151 was proper. 4. Whether the severance of disability compensation for entitlement to a total disability rating for compensation on the basis of individual unemployability under 38 U.S.C.A. § 1151 was proper. REPRESENTATION Appellant represented by: Robert V. Chrisholm, Esq. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to April 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma (RO). In July 2006, the Board issued a decision which found that the severance of compensation benefits for chronic obstructive pulmonary disease, congestive heart failure, diabetes mellitus, and total disability compensation based on individual unemployability (TDIU) was proper. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2007, the Court issued an Order granting a Joint Motion for Remand (Joint Motion) and remanded the matter to the Board. In October 2007, the Board remanded the case to the RO for additional consideration and development in compliance with the Joint Motion. In June 2008, the Board again remanded the Veteran's claim for additional development. In August 2009, the Board issued a decision which again found that the severance of compensation benefits for chronic obstructive pulmonary disease, congestive heart failure, diabetes mellitus, and TDIU was proper. The Veteran again appealed this decision to the Court. In February 2011, the Court issued an Order granting another Joint Motion, which remanded the case to the Board for additional consideration of the relevant laws and regulations. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is remanded to the RO. ORDER TO VACATE By an August 21, 2009 decision, the Board found that the severance of compensation benefits for chronic obstructive pulmonary disease, congestive heart failure, diabetes mellitus, and TDIU was proper. The Veteran appealed the Board's decision to the Court. Based on a February 2011 Joint Motion, the Court remanded the case to the Board for additional consideration as indicated in compliance with the Joint Motion. In February 2011, a letter was sent to the Veteran in which she was given 90 days from the date of the letter to submit additional argument or evidence in support of her appeal prior to the Board's readjudication. In April 2011, the Veteran's representative submitted additional evidence and argument to the Board with a waiver of the Veteran's right to have the RO readjudicate her claims with the additional evidence and argument. See 38 C.F.R. § 20.1304(c) (2010). An appellate decision may be vacated upon request of the Veteran, his or her representative, or on the Board's own motion when a Veteran has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.904(a). Here, the Court remanded the Board's August 2009 decision for further development, in compliance with a February 2011 Joint Motion. Accordingly, the August 21, 2009 Board decision which found that the severance of compensation benefits for chronic obstructive pulmonary disease, congestive heart failure, diabetes mellitus, and TDIU must be vacated, and a new decision regarding those issues will be entered as if the August 2009 Board decision addressing those issues had never been issued. ORDER The August 21, 2009 Board decision is vacated. REMAND After a notice of disagreement has been filed in any claim, the RO is required to issue a statement of the case containing a summary of the evidence, the applicable laws and regulations, and an explanation as to the decision previously reached. 38 C.F.R. § 19.29(b) (2010). Although the RO issued a statement of the case in March 2005, and supplemental statements of the case in January 2007, January 2009, and April 2009 with regard to the Veteran's claims, they did not provide the Veteran with the "applicable laws and regulations" pertaining to her claims. Specifically, the March 2005 statement of the case provided notice of 38 C.F.R. §§ 3.102, 3.159, and 3.105(d), and the January 2007 supplemental statement of the case only provided notice of 38 C.F.R. § 3.358. 38 C.F.R. §§ 3.102, 3.103, 3.105(a), 3.159, 3.385 (2010). None of the statements of the case provided the Veteran with notice of 38 C.F.R. §§ 3.103 or 3.105(a), which, as noted in the Joint Motion, are the regulations pertinent to her claims contesting the propriety of the severance of her disability compensation for chronic obstructive pulmonary disease, congestive heart failure, and diabetes mellitus. Moreover, as observed by the Joint Motion, termination of entitlement to benefits under 38 U.S.C.A. § 1151 is not subject to the requirements of 38 C.F.R. § 3.105(d) regarding severance of service connection. VAOPGCPREC 13-96; 62 Fed. Reg. 37953(1997). Accordingly, remand is required so that the Veteran may be provided with the appropriate laws and regulations which are applicable to her claims contesting the propriety of the severance of her compensation benefits for chronic obstructive pulmonary disease, congestive heart failure, and diabetes mellitus. See 38 C.F.R. § 19.31 (2010). In addition, the RO must review the Veteran's claims with consideration of all appropriate laws and regulations as indicated in the Joint Motion. With regard to the Veteran's claim contesting the severance of TDIU, the Board finds that this issue is inextricably intertwined with the issues of whether the severance of her chronic obstructive pulmonary disease, congestive heart failure, and diabetes mellitus was proper. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). Accordingly, these issues must be adjudicated together. Accordingly, the case is remanded for the following action: 1. The RO must readjudicate the Veteran's claims contesting the propriety of the severance of her compensation benefits for chronic obstructive pulmonary disease, congestive heart failure, for entitlement to service connection for a psychiatric disorder, and entitlement to TDIU. The RO must review the Veteran's claims with consideration of 38 C.F.R. §§ 3.103, 3.105(a), and VAOPGCPREC 13-96, as indicated in the Joint Motion. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative, and must provide the Veteran with the "laws and regulations" applicable to her claims, to include 38 C.F.R. §§ 3.103 and 3.105(a), as well as VAOPGCPREC 13-96. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 2. THE VETERAN'S APPEAL IS ADVANCED ON THE DOCKET. This claim must be afforded expeditious treatment. All claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). No action is required by the Veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs