Thursday, September 8, 2011

Single Judge Application, Misleading VCAA Notice, Hensley v. Brown, 5 Vet.App. 155, 160(1993)

Excerpt from decision below: "The first statement in the notice letter stated that: "We need evidence showing that the following conditions existed from military service to the present time." R. at 528. This statement implies that the only way to establish service connection is through continuity of symptomatology and ignores the fact that the appellant could also establish service connection by a nexus opinion even if there were a gap between service and the development of the disability. See Hensley v. Brown, 5 Vet.App. 155, 160 (1993) (concluding that a veteran may establish service connection for a current disability by submitting evidence that such disability was causally related to service). Although the notice letter later mentions that the appellant should submit evidence that establishes that his current conditions are related to service, the Court concludes that the notice letter is nonetheless misleading and implies that the appellant must submit evidence that his condition existed from military service to the present time." ======================== Skip navigation U.S. Court of Appeals for Veterans Claims View | Download | Details Previous document | Next document . 10-0914 McCarthyJF_10-914.pdf Search Terms: SHADE CreationDate: 09/02/2011 20:13:29 Creator: PrintServer150 ModDate: 09/07/2011 09:20:59 Producer: Corel PDF Engine Version 15.0.0.505 Title: X_XMPMETA_DC_TITLE: Times New Roman X_XMPMETA_XMPRIGHTS_MARKED: True ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-0914 JOHN F. MCCARTHY, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before LANCE, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. LANCE, Judge: The appellant, John F. McCarthy, through counsel, appeals a March 8, 2010, Board of Veterans' Appeals (Board) decision that denied his request to reopen his claims for entitlement to service connection for headaches, residuals of concussion, and peripheral neuropathy of the lower extremities. Record (R.) at 3-13. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will vacate the March 8, 2010, decision and remand the matter for further proceedings consistent with this decision. I. ANALYSIS A. Duty To Notify The appellant argues that VA failed to provide adequate notice of the new and material evidence necessary to reopen his previously denied claim. Appellant's Brief (Br.) at 9-13. Specifically, the appellant argues that "VA did not separate the claim for service connection for headaches from the claim for service connection for peripheral neuropathy" in its August 2007 Veterans Claims Assistance Act of 2000 (VCAA) notice letter to the appellant and therefore, the appellant argues that the letter provided a "generic notice" and failed to "explain why each [claim] was denied, or provide any meaningful notice of what would constitute new and material evidence with regard to each previously denied claim." Appellant's Br. at 8. In the context of a claim to reopen a previously denied claim, "the VCAA requires the Secretary to look at the bases for the denial in the prior decision and to respond with a notice letter that describes what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial." Kent v. Nicholson, 20 Vet.App. 1, 10 (2006). The notice requirements under the VCAA can be satisfied with generic notice. Wilson v. Mansfield, 506 F.3d 1055, 1059-60 (Fed. Cir. 2007) (holding that VA need not "'identify with specificity the evidence necessary to substantiate the [appellant's] claim'") (quoting Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1347 (Fed. Cir. 2003)). To be VCAA content-compliant, "the notice must identify the information and evidence necessary to substantiate the particular type of claim being asserted by the veteran (which we refer to here as 'generic notice'), but there is no indication that Congress intended to require an analysis of the individual claim in each case." Id. at 1059. Whether a claimant has received adequate notice is a "substantially factual" determination by the Board and such a determination is reviewed under the "clearly erroneous" standard of review. Garrison v. Nicholson, 494 F. 3d 1366, 1370 (Fed.Cir. 2007). The Court concludes that, while the Board notice was not generic and need not have been more specific, the Board notice was misleading and remand is required to clarify how the appellant can establish service connection. The first statement in the notice letter stated that: "We need evidence showing that the following conditions existed from military service to the present time." R. at 528. This statement implies that the only way to establish service connection is through continuity of symptomatology and ignores the fact that the appellant could also establish service connection by a nexus opinion even if there were a gap between service and the development of the disability. See Hensley v. Brown, 5 Vet.App. 155, 160 (1993) (concluding that a veteran may establish service connection for a current disability by submitting evidence that such disability was causally related to service). Although the notice letter later mentions that the appellant should submit evidence that establishes that his current conditions are related to service, the Court concludes that the notice letter is nonetheless misleading and implies that the appellant must submit evidence that his condition existed from military service to the present time. Remand is appropriate so that the Board can clarify that the appellant may establish service connection with either evidence of a nexus between his current disability and service or evidence establishing that his current disability has existed since service. B. Reasons and Bases In the interest of judicial economy, the Court will address one additional issue to provide guidance on remand. See Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009). The appellant argues that the Board provided an inadequate statement of reasons or bases for its determination that new and material evidence had not been submitted to reopen the appellant's previously denied claims. Appellant's Br. at 13-17. The Court concludes that this argument is without merit as the Board found that evidence submitted was duplicative of prior evidence in the record and the record is still absent any competent evidence showing that the veteran has a chronic headache disability, residuals of concussions, or peripheral neuropathy that had its onset during service or is somehow related to his active service. See Shade v. Shinseki, 24 Vet.App. 110, 117 (2010) (it is " well established" that evidence must be "noncumulative" to be new and material). While the appellant argues that the Board improperly made a credibility determination and rejected the appellant's lay statements, the Court concludes that the Board considered the appellant's lay statements in light of the criteria for considering whether his statements were new and material evidence to reopen his claims and found them to be duplicative. The Board decision is plausibly based on the evidence of record and is supported by an adequate statement of reasons or bases. III. CONCLUSION After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's March 8, 2010, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision. DATED: September 6, 2011 Copies to: Fay E. Fishman, Esq. VA General Counsel (027)