Veteranclaims’s Blog

September 8, 2011

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

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 3:40 pm

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.”
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—————————————————-
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)

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