Citation Nr: 0705981 Decision Date: 03/01/07 Archive Date: 03/13/07 DOCKET NO. 01-07 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim of service connection for anaplastic lymphoma, including as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD K. R. Fletcher, Counsel INTRODUCTION The appellant is a veteran who served on active duty from March 1965 to May 1966. This case was originally before the Board of Veterans' Appeals (Board) on appeal from a December 2000 decision by the Waco Department of Veterans Affairs (VA) Regional Office (RO). In January 2002, the veteran appeared for a videoconference hearing before the undersigned. The case was before the Board in April 2002, when the Board found that new and material evidence had not been received to reopen a claim of service connection for anaplastic lymphoma, including as secondary to herbicide exposure (the Board characterized the issue to reflect that there was a prior final decision on such claim). The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). By an April 2003 Order, the Court vacated the April 2002 Board decision, and remanded the matter for readjudication. Pursuant to the Court's April 2003 Order, the Board remanded the case to the RO in September 2003 for readjudication consistent with the Joint Motion (primarily to provide the veteran notice of the Veteran's Claims Assistance Act of 2000 (VCAA), to "apprise[] [the veteran] of what evidence, not previously provided, was necessary to substantiate the claim," and to provide him specific notice of his and VA's respective responsibilities in evidence development). In November 2005, the Board issued a decision which found that new and material evidence had not been received to reopen a claim of service connection for anaplastic lymphoma, including as secondary to herbicide exposure. The appellant appealed the Board's decision to the Court. In November 2006, the Court vacated the Board's decision and remanded the issue to the Board for further action consistent with a Joint Motion for Remand (Joint Motion) by the parties. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), in part, 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). In Kent v. Nicholson, 20 Vet. App. 1 (2006) (notably, issued after the Board's November 2005 decision), the Court essentially stated that VA must notify a claimant of the evidence and information that is necessary to reopen a claim and of what evidence and information is necessary to establish entitlement to the underlying claim for the benefit sought by the claimant. In the September 2003 remand, the Board specifically instructed the RO to send an appropriate letter to the veteran to ensure compliance with all notice and assistance requirements set forth in the VCAA. The RO was to advise him of the evidence necessary to substantiate his claim, as well as what evidence he is to provide and what evidence VA will attempt to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran and his representative were to be informed specifically of the type of information required to verify his claimed exposure to "Agent Orange" or other chemical substances during active service. In a December 2003 letter, the RO informed the veteran of the allocation of responsibility of the parties to identify and obtain additional evidence in order to substantiate his claim. The RO asked the veteran to submit, or provide releases for VA to obtain, any pertinent records. The veteran was expressly asked to let VA know "[i]f there is any other evidence or information that you think will support your claim," and to "submit medical or other evidence showing that you were exposed to herbicides or other chemicals while in service and medical or other evidence that you developed anaplastic lymphoma due to or as the result of exposure to herbicides or other chemicals in service." See December 18, 2003 letter. Notably, the November 2006 Joint Motion endorsed by the Court found that the RO's December 18, 2003 letter did not comply with the Board's remand instructions. The Joint Motion states: The Board's remand implies more than just a generic parroting of the instruction and its reference to specificity and "type of information" indicates the need to provide [the veteran] with examples of evidence that would be sufficient to substantiate the claimed exposure, such as buddy statements, service department records, deck logs, or any information that VA might require if it determines that it should attempt to obtain service department records or deck logs. The above examples are not an exhaustive list of possible evidence and on remand the Board or the RO should determine the types of evidence of which [the veteran] should be advised. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, given that the December 2003 VCAA notice letter did not fully conform to the Board's remand instructions, the case must once again be sent back to the RO. Finally, the Board notes that on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish the degree of disability or an effective date for any award of compensation. The RO will have the opportunity to cure these notice deficiencies on remand. Accordingly, the case is REMANDED for the following action: 1. For the issue of whether new and material evidence has been received to reopen a claim seeking service connection for anaplastic lymphoma, including as secondary to herbicide exposure, the RO should issue a letter which includes notification of the evidence of record, notification of the information that is necessary to establish service connection for anaplastic lymphoma (to include as secondary to herbicide exposure), and notice regarding the type of evidence and information necessary to reopen the claim, i.e., what type of evidence would be considered new and material. The RO should inform the veteran of the type of information required to verify his claimed exposure to "Agent Orange" or other chemical substances during active service. Specifically, the veteran should be informed that examples of evidence that would be sufficient to substantiate the claimed exposure may include, but is not limited to: buddy statements, service department records, deck logs, or any information that VA might require if it determines that it should attempt to obtain service department records or deck logs. The RO should also provide the veteran notice regarding the rating of disability and effective dates of awards in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Then, the RO should undertake appropriate development to obtain any pertinent evidence identified but not provided by the appellant. If it is unsuccessful in obtaining any pertinent evidence identified by the appellant, it should so inform the appellant and his representative and request them to provide the outstanding evidence. 3. Thereafter, the RO should review the claims file and must ensure that all of the foregoing development actions are completed in full (Note Joint Motion discussion of Stegall). 4. Upon completion of the above, the RO should readjudicate the appellant's claim to reopen a claim seeking service connection for anaplastic lymphoma, including as secondary to herbicide exposure. If the benefit sought on appeal remains denied, an appropriate supplemental statement of the case should be issued, and the veteran and his attorney afforded opportunity to respond before the claims file is returned to the Board. The purpose of this remand is to comply with the mandates of the Court (endorsing the Joint Motion). The appellant has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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. 2005). ________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This 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) (2006).