Citation Nr: 1300229 Decision Date: 01/03/13 Archive Date: 01/11/13 DOCKET NO. 99-23 979A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a rating in excess of 70 percent for residuals of a right brachial plexus injury. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1983 to February 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). In January 2004, a hearing was held before a Decision Review Officer (DRO) at the RO. A transcript of the hearing is associated with the Veteran's claims file. In December 2004, a Travel Board hearing was held before the undersigned. The audiotape of that hearing was lost, and therefore could not be transcribed. The Veteran was notified of that fact in a May 2005 letter (a copy of which was mailed to his representative), and was asked to clarify his wishes as to whether he desired another Travel Board hearing (or, in the alternative, a videoconference hearing). The letter expressly notified him that "[i]f you do not respond within 30 days from the date of this letter, the Board will assume you do not want a hearing and will proceed accordingly." Although the May 2005 letter to the Veteran was returned as undeliverable, it was re-mailed to him in June 2005 (with another copy forwarded to his representative). He did not respond to the June 2005 letter (and it was not returned as undeliverable). In August 2005, February 2009, March 2011, and December 2011, the case was remanded for additional development and/or to satisfy notice requirements. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. FINDING OF FACT In March 2011, the Veteran was asked to provide identifying information and the releases needed to secure pertinent outstanding private medical evidence necessary to adjudicate his claim for an increased rating for residuals of a right brachial plexus injury; more than a year has lapsed since that request; he has not responded. CONCLUSION OF LAW By failing to submit requested identifying information and releases for critical evidence needed to properly adjudicate his claim for an increased rating for residuals of a right brachial plexus injury, the Veteran has abandoned such claim, and his appeal in this matter must also be considered abandoned. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2002); 38 C.F.R. § 3.158(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim. While he did not receive complete notice prior to the initial rating decision, letters in November 2003, September 2005, March 2006, and March 2009 provided essential notice prior to the readjudication of his claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Specifically, these letters provided notice of what was needed to substantiate an increased rating claim and explained the evidence VA was responsible for providing and the evidence he was responsible for providing. A September 2012 supplemental statement of the case (SSOC) readjudicated the matter after the Veteran and his representative were given an opportunity to respond. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (VCAA timing defect may be cured by the issuance of fully compliant notification followed by readjudication of the claim); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). The Veteran's service treatment records (STRs), postservice VA treatment records, and some postservice private treatment records have been secured/viewed. As will be explained below, further pertinent (and perhaps critical) evidence is outstanding. However, such evidence cannot be obtained without the Veteran's cooperation (by providing identifying information and authorization for release of records). See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA's duty to assist in developing the facts and evidence pertinent to a Veteran's claim is not a one-way street). In March 2011, the RO asked the Veteran to provide the information and releases. He did not respond. In December 2011, the RO notified the Veteran that he had the remainder of one year from the date of the March 2011 notice letter to submit the requested information and releases. He has not responded, and further development cannot proceed without his cooperation. The RO arranged for VA examinations in September 1998, February 1999, March 2001, October 2003, November 2003, April 2006, and September 2010 in conjunction with this claim (notably, prior to completion of the evidentiary development requested). The Board observes that the opinions offered are based on a less than complete factual background. Given the circumstances, VA has met its assistance obligations. No further assistance is required. B. Legal Criteria, Factual Background, and Analysis Where evidence requested in connection with a claim for VA benefits is not furnished within 1 year after the date of the request, the claim will [emphasis added] be considered abandoned. 38 C.F.R. § 3.158(a). The Board's March 2011 remand noted that in the Veteran's Social Security Administration records, it was reported that (on dates that fell within the appeal period) he had sought treatment from two private healthcare providers, Dr. T.C. and the Neurological Associates, for problems related to his right arm. The March 2011 Board remand advised the Veteran of 38 C.F.R. § 3.158(a). In March 2011, the Appeals Management Center (AMC) sent the Veteran a letter asking him to complete and return the enclosed VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) so that VA could secure records of his private treatment for his service-connected residuals of a right brachial plexus injury, to specifically include from Dr. T.C. and the Neurological Associates. This letter was mailed to the Veteran's current address, and was not returned as undelivered. In April 2011, a VA Form 21-4142 was received from the Veteran for current treatment records from Dr. T.C. and for September 1970 treatment records from the New York VA Medical Center. The Veteran did not, as was requested, provide a release for the Neurological Associates. In a September 2011 SSOC, the AMC readjudicated and denied the claim. The Board's December 2011 remand noted that the Veteran should have had one year (and not just 30 days, as he was previously advised) from the March 2011 notice letter to submit additional evidence or information that is pertinent to his claim. Based on the United States Court of Appeals for Veterans Claims (Court) endorsements of Joint Motion for Remands, the one-year timeframe afforded by 38 C.F.R. § 3.158(a) is absolute, and 38 C.F.R. § 3.158(a) may not be applied until the one year period has passed. Therefore, the Board found it was unable to proceed under the governing regulation, and the Veteran's claim was returned to the RO/AMC to afford him due process. The December 2011 Board remand again advised the Veteran of 38 C.F.R. § 3.158(a). In December 2011, the AMC sent the Veteran a letter once again asking him to complete and return the enclosed VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) so that VA could secure records of his private treatment for his service-connected residuals of a right brachial plexus injury, to specifically include from the Neurological Associates. This letter also notified him that he had the remainder of one year from the date of the March 2011 notice letter to submit the requested information and release. This letter was mailed to the Veteran's current address, and was not returned as undelivered. He did not respond. More than a year has passed since the initial March 2011 request. The critical facts at this stage are clear. The Veteran has not provided a release necessary for VA to secure identified outstanding evidence pertaining to his claim for an increased rating for residuals of a right brachial plexus injury. The Board is presented with a less than complete disability picture, made so by the Veteran's failure to cooperate. In such circumstances, proper merits adjudication is not possible. The regulation governing in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. See Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned) (emphasis added). Notably, more recently the Court has held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a) (which is not the case here), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations. See Jernigan v. Shinseki, 25 Vet. App. 220, 231 (2012). Hence, the Board has no recourse but to conclude that the Veteran has abandoned this claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). As the claim for an increased rating for residuals of a right brachial plexus injury is abandoned, there is no allegation of error in fact or law for appellate consideration in this matter. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. ORDER The appeal seeking an increased rating for residuals of a right brachial plexus injury is dismissed. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs