Citation Nr: 0731926 Decision Date: 10/10/07 Archive Date: 10/23/07 DOCKET NO. 04-17 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Whether new and material evidence has been presented to reopen a claim of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Jenny Y. Twyford, Esq. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from December 1972 to March 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2005, the veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. At the hearing, the veteran submitted additional evidence and waived initial consideration of the evidence by the RO. In September 2005, the Board granted the veteran's motion to advance the case on the docket for good cause. In a decision dated October 2005, the Board denied the veteran's application to reopen his claim of service connection for PTSD. The veteran appealed this determination to the United States Court of Appeals for Veterans Claims (CAVC) in December 2005. While the claim was pending before the CAVC, the veteran submitted written documents to the agency of original jurisdiction withdrawing his appeal in this matter. See Facsimile from the veteran dated January 12, 2006; VA Form 21-22 dated January 12, 2006; Disabled American Veteran's Motion to Withdraw the Appeal dated January 20, 2006. Ordinarily, a withdrawal of appeal would deprive the Board of jurisdiction from further reviewing the claim. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2007). However, the VA no longer had jurisdiction of this appeal when the veteran filed his notice of appeal with the CAVC in December 2005; as of that time, the CAVC had jurisdiction of the case, and any motions should have been filed with CAVC. By order dated May 2007, the CAVC vacated the Board's October 2005 decision and remanded the case pursuant to the terms of a Joint Motion for Remand. It is unclear from the record that either the CAVC or the parties to the Joint Motion for Remand were aware of the January 2006 motion withdrawing the claim. Under the doctrine of the law of the case, the Board is bound to carry out the terms of the May 2007 CAVC order. See generally Hudson v. Principi, 260 F.3d 1357 (Fed. Cir. 2001); Browder v. Brown, 5 Vet. App. 268 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The case on appeal has a procedural history complicated by the subissues of line of duty and willful misconduct determinations addressed in RO administrative decisions. In administrative decisions in February 2004, the RO determined that the veteran was absent without leave (AWOL) during confinement in a civilian jail from September 14 to 19, 1973, where the alleged stressor to support the diagnosis of PTSD had occurred, constituting willful misconduct so that any injury he might have sustained was not in the line of duty. In June 2004, after challenging the line-of-duty determination, the veteran testified on the line of duty question before the RO's Decision Review Officer. In a December 2004 administrative decision, the DRO reversed the February 2004 rulings and held that during the time the veteran was confined in county jail he was not AWOL. After the resolving the line of duty question in favor of the veteran regarding his leave status, the RO revisited the question of line of duty in the context of whether the confinement, itself, was willful misconduct. In a March 2005 administrative decision, the RO determined that the actual confinement in jail was due to the veteran's willful misconduct so that any injury he might have suffered was not in the line of duty. Pursuant to 38 U.S.C.A. § 1110, compensation is payable for disability resulting from personal injury suffered in line of duty unless the injury was a result of the person's own willful misconduct. A finding of willful misconduct negates the "line-of-duty" presumption. To deny a claim solely on the basis of willful misconduct, the preponderance of the evidence must establish the willful misconduct. Forshey v. West, 12 Vet. App. 71, 73 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3rd 1335 (Fed. Cir. 2002), cert. denied, 537 U.S. 823 (2002). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. Willful misconduct will not be determinative unless it is the proximate cause of injury. 38 C.F.R. § 3.1(n) (2007). Proximate cause is defined as "that which, in a natural continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Forshey, supra, at 73-75. The veteran asserts that he was stabbed while in county jail, which was the stressor for PTSD. The record shows that he was in a county jail for about five days in September 1973. At the time, he was not AWOL from the service and he was not arrested for a crime, rather he was being held in "safekeeping" until he could be returned to military control. The record fails to establish an intentional wrongdoing on the veteran's part to elevate the period of confinement, alone, as willful misconduct. In addition, the confinement, itself, is too attenuated as a cause to be considered the proximate cause of the veteran's alleged injury. For this reason, the confinement, itself, does not constitute willful misconduct. In light of the above, the line-of-duty presumption has not been rebutted. The resolution of the line of duty and willful misconduct issues in favor of the veteran still leaves unresolved the issue of whether new and material evidence has been presented to reopen a claim of service connection for PTSD. The record includes VA clinical records printed in March 2007 that fall outside the waiver of RO initial review of evidence submitted in June 2005. See Attorney's letter dated September 2007 (requesting remand for RO initial review of additional argument in support of the claim). The RO has reviewed this evidence in a May 2007 rating decision, and not an SSOC, as part of a new claim under the new and material standard. This decision is now subsumed in the current appeal. The last SSOC of record, dated April 2005, reviewed the case on the merits. In order to ensure due process, the case must be remanded to the RO for readjudication of the claim based upon the state of the record at the time of the April 2005 SSOC in a manner consistent with 38 C.F.R. § 3.104 (findings of an agency of original jurisdiction are final and binding on all similar field offices) and the Board's line of duty and willful misconduct determinations. Accordingly, the case is REMANDED for the following action: Readjudicate the claim since (and with consideration of) the April 2005 SSOC and in a manner consistent with 38 C.F.R. § 3.104 and the Board's line of duty and willful misconduct determinations and with consideration of all additional evidence. Any further development deemed appropriate, including under 38 C.F.R. § 3.159, should be completed. If the claim remains denied, furnish the appellant and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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 Veterans' 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 SABULSKY 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) (2007).