Decision Date: 08/09/95				Archive Date: 
08/08/95 
DOCKET NO.  95-08 241	)	DATE 
	) 
	) 
 
On appeal from the 
Department of Veterans Affairs Regional Office in New York, 
New York 
 
 
THE ISSUE 
 
 
Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
schizophrenia. 
 
 
REPRESENTATION 
 
Appellant represented by:	Disabled American Veterans 
 
 
ATTORNEY FOR THE BOARD 
 
L. M. Barnard, Counsel 
 
INTRODUCTION 
 
The veteran served on active duty from January 1973 to June 
1974. 
 
This appeal arose from an October 1994 rating decision of 
the New York, New York, Department of Veteran's Affairs 
(VA), Regional Office (RO), which found that the veteran had 
not submitted new and material evidence to reopen his claim 
for entitlement to service connection for schizophrenia. 
 
 
CONTENTIONS OF APPELLANT ON APPEAL 
 
The veteran contends, in essence, that service connection 
for schizophrenia, which was severed in November 1980, 
should be restored.  He argues that he had submitted a 
timely notice of disagreement with that action, but that he 
had never been provided with a statement of the case.  
Further, if service connection were not to be restored, he 
asserted that he has submitted new and material evidence to 
justify reopening his claim for entitlement to service 
connection for schizophrenia. 
 
 
DECISION OF THE BOARD 
 
The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991), has reviewed and considered all of the 
evidence and material of record in the veteran's claims 
file.  Based on its review of the relevant evidence in this 
matter, and for the following reasons and bases, it is the 
decision of the Board that the November 1980 severance of 
service connection for schizophrenia did not become final. 
 
 
 
FINDING OF FACT 
 
The veteran filed a timely notice of disagreement with the 
proposal to sever service connection for schizophrenia in 
September 1980; a statement of the case was not provided 
following the severance of service connection in November 
1980. 
 
 
CONCLUSION OF LAW 
 
1.  A timely notice of disagreement with the severance 
proposal of September 1980 was filed; a statement of the 
case was not provided and the rating action of November 1980 
did not become final.  38 U.S.C.A. § 5107(a) (West 1991); 38 
U.S.C. § 4005 (1976); 38 C.F.R. §§ 3.104(a), 19.153, 19.154 
(1980); VA Adjudication Procedures Manual, M21-1, Chapter 
18, Paragraph 18.25 (Change 145, September 9, 1976). 
 
 
REASONS AND BASES FOR FINDING AND CONCLUSION 
 
The veteran's claims are well grounded within the meaning of 
38 U.S.C.A. § 5107(a).  That is, we find that he has 
presented claims which are plausible.  We are also satisfied 
that all relevant facts have been properly developed.  The 
record is devoid of any indication that there are other 
records available which should be obtained.  Therefore, no 
further development is required in order to comply with the 
duty to assist mandated by 38 U.S.C.A. § 5107(a). 
 
According to the applicable provisions of the M21-1, in 
effect in 1980, a proposed rating to sever service 
connection is merely a preliminary action and consequently 
is not an appealable determination.  However, if a notice of 
disagreement is filed in such a case before the expiration 
of the 60-day period, a statement of the case should be 
prepared and furnished the claimant together with advice 
that should they have no further evidence to submit and 
desire to appeal before the end of the 60-day period allowed 
for submission of evidence, they may and the appeal 
processed.  VA Adjudication Procedures Manual, M21-1, 
Chapter 18, Paragraph 18.25 (Change 145, September 9, 1976). 
 
In the instant case, it is initially noted that the veteran 
was awarded service connection for schizophrenia in a rating 
action issued in June 1974.  On June 12, 1980, the RO issued 
a rating action which proposed to sever service connection 
for this disorder, noting that the veteran did not have 
schizophrenia in service, nor was it found to a compensable 
degree within one year of his separation.  Therefore, it was 
noted that the 1974 grant of service connection had been 
clearly and unmistakably erroneous.  The veteran was 
notified of this proposed action in a letter dated July 24, 
1980.  He was informed that he had 60 days from the date of 
that letter in which to submit additional evidence or 
statements.  Should no reply be received, his award would be 
discontinued effective October 1, 1980.  On September 16, 
1980, the RO received the veteran's notice of disagreement 
with the proposed severance.  On November 19, 1980, a rating 
action was issued which noted the veteran's protest of the 
proposed severance; however, the severance action was 
finalized since the veteran had not submitted evidence to 
explain why service connection should be maintained.  He was 
notified of this severance in December 1980. 
 
In a rating action dated in October 1994, the RO found that 
this November 1980 severance action was final since the 
veteran had failed to submit a timely notice of 
disagreement, and also found that he had not submitted new 
and material evidence necessary to reopen his claim for 
service connection. 
 
After carefully reviewing the evidence, it is found that the 
July and November 1980 ratings are not final.  The above 
quoted Manual provision clearly stated that under certain 
circumstances a proposal to sever is not an appealable 
determination.  However, in those cases in which a veteran 
filed a notice of disagreement before the expiration of the 
allowed 60-day period in which to submit additional 
evidence, the RO was obliged to furnish the claimant a 
statement of the case.  This statement was to be accompanied 
by advice that, should no such further evidence be 
submitted, and he desires to appeal, the veteran may do so 
and the appeal should be processed. 
 
In this case, the veteran clearly submitted a notice of 
disagreement prior to the expiration of the 60-day period in 
which to submit additional evidence.  The appropriate step 
for the RO should have been to issue the veteran a statement 
of the case, and to proceed with the appeal, should that be 
the desire of the veteran, as was obviously the case here.  
The failure of the RO to issue the appropriate statement of 
the case denied the veteran his right to due process.  
Therefore, the appeal of the severance is still a pending 
appeal. 
 
Since the veteran's appeal of the severance was timely, the 
question becomes whether the original rating action which 
granted service connection for schizophrenia in November 
1974 was clearly and unmistakably erroneous.  A statement of 
the case must be provided on this issue, and all proper 
appellate procedures followed. 
 
 
ORDER 
 
To the extent that the severance of service connection for 
schizophrenia in 1980 did not become final, the appeal is 
resolved in favor of the appellant. 
 
 
REMAND 
 
Initially, it is noted that the veteran's appeal of the 1980 
severance has been found to be timely.  Therefore, the 
question is whether the original rating action which granted 
service connection for schizophrenia in November 1974 was 
clearly and unmistakably erroneous.  However, no statement 
of the case on this issue has been provided to the veteran. 
 
Under the circumstances of this case, additional assistance 
is necessary, and this case is REMANDED to the RO for the 
following: 
 
1.  The RO should issue the veteran an appropriate statement 
of the case which contains all pertinent laws and 
regulations pertaining to whether the original grant of 
service connection for schizophrenia was clearly and 
unmistakably erroneous. 
 
2.  Following the issuance of this statement of the case, 
all proper appellate procedures should be followed.  The 
case should then be returned to the Board for further 
appellate consideration if otherwise in order. 
 
The RO should note that this case, based on the medical 
evidence of record, has been advanced on the docket.  
Therefore, the RO should handle this case as expeditiously 
as possible. 
 
 
		 
	KENNETH R. ANDREWS, JR. 
	Member, Board of Veterans' Appeals 
 
The Board of Veterans' Appeals Administrative Procedures 
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 
___ (1994), permits a proceeding instituted before the Board 
to be assigned to an individual member of the Board for a 
determination.  This proceeding has been assigned to an 
individual member of the Board. 
 
NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
Supp. 1995), a decision of the Board of Veterans' Appeals 
granting less than the complete benefit, or benefits, sought 
on appeal is appealable to the United States Court of 
Veterans Appeals within 120 days from the date of mailing of 
notice of the decision, provided that a Notice of 
Disagreement concerning an issue which was before the Board 
was filed with the agency of original jurisdiction on or 
after November 18, 1988.  Veterans' Judicial Review Act, 
Pub. L. No. 100-687, § 402 (1988).  The date which appears 
on the face of this decision constitutes the date of mailing 
and the copy of this decision which you have received is 
your notice of the action taken on your appeal by the Board 
of Veterans' Appeals.  Appellate rights do not attach to 
those issues addressed in the remand portion of the Board's 
decision, because a 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) (1994). 
 
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