Citation Nr: 0722941 Decision Date: 07/26/07 Archive Date: 08/06/07 DOCKET NO. 99-17 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Whether new and material evidence has been received to reopen a claim with respect to whether injuries sustained on May 13, 1978, were the result of the veteran's own willful misconduct. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Linda E. Mosakowski, Associate Counsel INTRODUCTION The veteran served on active duty from March 1962 to March 1966. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an administrative decision by the Director of Compensation and Pension Service that was reviewed by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 1998, the veteran filed a claim arguing that VA had committed clear and unmistakable error (CUE) in its November 1979 decision determining that the veteran's injuries sustained in May 1978 were the result of his own willful misconduct. In an August 2003 Memorandum Decision, the Court of Appeals for Veterans Claims (Court) determined that the Board had properly denied that claim. But the Court also noted that the veteran had raised another CUE claim, namely, that in its November 1979 decision, the RO's use of an accident report "failed to comply with basic due process principles and abridged his rights." See Andre v. Principi, 301 F.3d 1354, 1361-62 (Fed. Cir. 2002) (each specific assertion of CUE constitutes a separate claim). The Court declined to review this new claim because the veteran had raised it before the Court in the first instance, and there was no Board decision with respect to that specific allegation. After the veteran's case had been remanded by the Board in April 2004, the veteran's representative submitted a November 2004 argument to the Appeals Management Center (AMC) in Washington, D.C., that the veteran's right to due process was violated by VA's use, in 1979, of the police report and that, therefore, the 1979 administrative decision was not final. In its March 2005 remand, the Board explicitly referred that CUE claim to the RO via the AMC. Since the veteran's claims folder does not show that the due process CUE claim has yet been adjudicated, the matter is again referred to the RO via the AMC for appropriate action. In addition, in the June 2007 informal brief submitted by the veteran's representative, the veteran seeks a pension under 38 U.S.C.A. § 1513 (West 2002), on the basis that he reached age 65 in November 2005, which he claims is not precluded by injuries due to willful misconduct. This claim is referred to the RO for appropriate action. REMAND As a result of a May 1978 automobile accident, the veteran sustained severe injuries and he filed a claim for pension benefits. In November 1979, the Director of Compensation and Pension Services issued an administrative decision that the injuries sustained by the veteran in the accident were the result of willful misconduct. Relying on that administrative decision, in November 1979, the RO denied the veteran's pension claim. Although the veteran claimed that he filed a timely notice of disagreement, the Court of Appeals for Veterans Claims rejected that argument and the November 1979 decision became final. In July 1981, the veteran filed a claim to reopen that pension benefits claim but since no new evidence had been provided, the RO declined to address the claim. Another application to reopen the pension claim was submitted in December 1982 and the veteran provided additional evidence to support his claim. That claim was denied in January 1983 on the basis that the submitted documents did not constitute new and material evidence to warrant reopening the claim. Another claim for pension benefits was denied in March 1989 on the basis that no new and material evidence had been submitted to warrant reopening the claim. The veteran did not file a notice of disagreement with respect to that decision. In February 1998, the veteran filed a claim asserting that the RO committed clear and unmistakable error (CUE) in determining that his injuries were the result of his own willful misconduct. Although that claim did not specifically raise the issue of reopening the pension claim, the September 1998 administrative decision of the Director of Compensation and Pension Service pointed out that there was no evidence that warranted a change in the November 1979 administrative decision. On appeal, the Board remanded the case in November 2000 and identified as one of the issues in the appeal whether new and material evidence had been received to reopen a claim with respect to whether the veteran's injuries sustained on May 13, 1978, were the result of his own willful misconduct. When the appeal was again before the Board in June 2001, the Board determined, in pertinent part, that new and material evidence had not been presented to reopen the veteran's claim as to whether injuries sustained on May 13, 1978, were the result of his own willful misconduct. The veteran appealed the Board's decision to the Court of Appeals for Veterans Claims. In an August 2003 Memorandum Decision, the Court vacated and remanded the Board's determination with respect to reopening. The Court found that the Board had erred because it had adjudicated the reopening question in the first instance, without discussing the due process concerns set out in Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Court also noted that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (now codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), had been enacted while the veteran's appeal was pending, and that he was entitled to any expanded notice and assistance afforded under that new law. In April 2004, the Board remanded the veteran's case for additional development. The Appeals Management Center (AMC) in Washington, D.C., took further action on his claim, and the matter was returned to the Board in December 2004. In March 2005, the Board again remanded the veteran's case for additional development. The AMC in Washington, D.C., took further action on the veteran's claim, and the matter was returned to the Board in May 2006. In August 2006, the Board again remanded the veteran's case for additional development. The AMC took further action on the veteran's claim, and the appeal has once again been returned to this Board. A final claim can be reopened if the veteran presents new and material evidence. The regulations defining what constitutes "new and material" evidence were changed and the current version of those regulations became effective for all claims filed on or after August 29, 2001. Compare 38 C.F.R. § 3.156(a) (2001) with 38 C.F.R. § 3.156(a) (2005). As pointed out above, the claim that began this appeal did not explicitly ask that the claim be reopened. Yet, that issue was clearly identified as part of the appeal by the Board's November 2000 remand. So, notwithstanding uncertainty as to the filing date of the claim, the veteran's claim to reopen his pension claim predated the August 2001 change in the regulations. Accordingly, the version of the law that must be applied to the veteran's claim is that which was in effect prior to August 29, 2001. See Duty to Assist, 66 Fed. Reg. 45,620 (Aug. 29, 2001) (Applicability Dates) (for claims to reopen that were filed prior to August 29, 2001, the former definition of "new and material" evidence (found at 38 C.F.R. § 3.156(a) (2001)) is to be applied). Applying the proper version of the regulations is exactly the issue that this Board addressed in its August 2006 remand. The Board gave instructions to issue a notice with respect to the veteran's application to reopen his pension claim that set out the proper standard of new and material evidence to be applied to his claim and that complied with Kent v. Nicholson, 20 Vet. App. 1 (2006) (providing guidance about section 5103(a) requirements where the claim involves new and material evidence). Under Kent, the notice to the veteran must explain what "new and material evidence" means. The Board's August 2006 remand explicitly instructed that the notice should use the "old" version of new and material regulation found at 38 C.F.R. § 3.156(a) (2001). Yet, the AMC's September 2006 letter described new and material evidence using the version of the regulations in effect on and after August 29, 2001. See 38 C.F.R. § 3.156(a) (2006). Since that is not the proper standard to be applied in this appeal, the September 2006 notice did not properly explain what new and material evidence means. A notice for a claim involving new and material evidence must also explain, in terms of the specific case, what kind of evidence would overcome the prior deficiency and what evidence would establish the underlying claim. Kent, supra. Although the September 2006 letter refers to a prior decision, there are several factual errors in that discussion. For example, the prior decision is described as a denial of service connection for injuries sustained and the letter states that notice of that prior decision was provided on March 29, 2006. The letter also informs the veteran that the evidence needed to substantiate his appeal is his recent medical treatment records. The prior decision at issue in this appeal, however, is a March 1989 decision that was sent to the veteran in March 1989, not March 2006. That decision denied the veteran's claim to reopen his pension claim because the veteran had failed to submit new and material evidence to reopen that claim. (Although the earlier June 2001 Board decision had analyzed all evidence submitted since the original November 1979 decision denying a pension claim, further review of the claims file shows that the last, final decision with respect to a pension claim was issued in March 1989; since that portion of the Board's June 2001 decision to address the new and material evidence issue was vacated by the Court, VA is not bound by the factual findings in that decision that relate to the new and material evidence issue.) Since a pension claim based on injuries sustained in the May 1978 accident cannot be granted because of the November 1979 administrative decision that the injuries sustained in the accident were the result of willful misconduct, the evidence needed to overcome the March 1989 decision is the same evidence as is needed to establish an underlying claim for pension benefits, namely, new evidence that his accident was not due to willful misconduct. Evidence to overcome the prior deficiency and establish his underlying claim would include evidence that addresses the circumstances of that accident, and whether it involved conscious wrongdoing or known prohibited action, deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. See 38 C.F.R. § 3.1(n). Accordingly, by informing the veteran that he needed to submit recent medical treatment records, the veteran was not provided proper notice of what kind of evidence was needed to overcome the adverse March 1989 decision. Furthermore, in the August 2006 remand, the Board instructed that if a supplemental statement of the case (SSOC) was issued, it should contain, among other things, a citation to, and a summary of, the version of 38 C.F.R. § 3.156(a) in effect prior to August 29, 2001. Although that document included a summary of the correct definition of new and material evidence, the SSOC did not include any citation to that regulation. If remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions). Since the development sought by the Board in this case has not been properly completed, another remand is now required. 38 C.F.R. § 19.9 (2006) (if any action is essential for a proper appellate decision, a Veterans Law Judge shall remand the case to the agency of original jurisdiction, specifying the action to be undertaken). Ever since the June 2001 decision of the Board was vacated by the Court in September 2003, the issues in this appeal have involved only the proper legal standard to be used in sending notice for, and in adjudicating, the issue of whether new and material evidence has been received to reopen the veteran's claim. The Board notes, however, that since March 1989, when the last, final decision was issued with respect to a claim for pension benefits, no evidence whatsoever has been submitted by the veteran. The veteran is hereby notified that because the pension claim cannot be reopened in the absence of new and material evidence, he should submit to VA whatever new evidence he has with respect to his claim. For the reasons stated, this case is REMANDED to the RO via the AMC in Washington, D.C., for the following actions: 1. The RO should issue the veteran a new notice with respect to his application to reopen his claim as to whether the injuries sustained on May 13, 1978, were the result of his own willful misconduct, and the notice should include the following: a. The proper standard of new and material evidence to be applied to the veteran's claim (i.e., the "old" definition of "new and material evidence," in effect prior to August 29, 2001, which, as noted above, can be found at 38 C.F.R. § 3.156(a) (2001)). b. An explanation, in terms of this specific case, of what kind of evidence would overcome the adverse March 1989 decision and establish his underlying pension claim (including an explanation of the evidence necessary to overcome the November 1979 administrative decision that found that the injuries sustained in the accident were the result of willful misconduct). 2. Thereafter, the RO should re-adjudicate the veteran's application to reopen. If any sought benefit remains denied, the RO should issue an SSOC to the veteran and his representative. The SSOC should contain, among other things, the following: a. The text of the version of 38 C.F.R. § 3.156(a) in effect prior to August 29, 2001, which, as noted above, can be found at 38 C.F.R. § 3.156(a) (2001); and b. With respect to any evidence submitted since March 1989, an analysis (applying the version of 38 C.F.R. § 3.156(a) in effect prior to August 29, 2001) of whether such evidence is new and material evidence that warrants re-opening the veteran's claim as to whether injuries sustained on May 13, 1978, were the result of his own willful misconduct. 3. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims file should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. 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 of Veteran's Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veteran's 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) (2005).