Nagler v. Principi

3 Vet. App. 488, 1992 U.S. Vet. App. LEXIS 372, 1992 WL 337498
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 18, 1992
DocketNo. 91-942
StatusPublished

This text of 3 Vet. App. 488 (Nagler v. Principi) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nagler v. Principi, 3 Vet. App. 488, 1992 U.S. Vet. App. LEXIS 372, 1992 WL 337498 (Cal. 1992).

Opinion

MEMORANDUM DECISION

STEINBERG, Associate Judge:

The appellant, Vietnam veteran Robert E. Nagler, appeals from a July 18, 1990, decision of the Board of Veterans’ Appeals (BVA or Board) denying service-connected disability compensation for a heart disor[489]*489der. Robert E. Nagler, BVA 90-24628 (July 18, 1990). (The appellant previously sought an extraordinary writ regarding collateral issues. Nagler v. Derwinski, 1 Vet.App. 297 (1991) (consolidated with Jones (Joseph) v. Derwinski, 1 Vet.App. 596).) The Secretary of Veterans Affairs (Secretary) has moved for summary remand, confessing that the Board committed multiple errors. The veteran opposes remand and requests the Court to reverse the Board’s decision and award service connection. Summary disposition is appropriate because the case is one of “relative simplicity” and the outcome is controlled by the Court’s precedents and is “not reasonably debatable”. Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will vacate the BVA decision and remand the matter to the Board.

I. BACKGROUND

The veteran’s claim was previously and finally denied by an unappealed decision of a Veterans’ Administration (now Department of Veterans Affairs) (VA) Regional Office (RO) in February 1984. The veteran sought to reopen his claim in 1987, and benefits were again denied by the RO in February 1988. R. at 194. In November 1988, he submitted a “Statement in Support of Claim” again asserting entitlement to service connection, and in a January 1989 confirmed rating decision, the RO again denied the claim. R. at 197-99. In its July 1990 decision, the Board concluded that the veteran had submitted “new and material evidence” to reopen his claim but that “the evidence submitted since the 1984 determination ... does not establish that a heart disorder was either incurred in or aggravated by service or that it can be presumed to have been present in service.” Nagler, BVA 90-24628, at 5. In his motion for remand, the Secretary states that the Board, upon reopening the veteran’s claim, erred in failing to consider all the evidence of record, both old and new, and in failing to provide an adequate statement of its reasons or bases as to its evaluation of all lay and medical evidence, including the veteran’s testimony, and as to the application of the benefit-of-the-doubt rule. Mot. at 2-4.

In his brief and his opposition to the Secretary’s motion for remand, the appellant asserts that the Board’s denial of service connection should be reversed as clearly erroneous; that the Board was required to give greater consideration to the provisions of 38 C.F.R. §§ 3.307 and 3.309; that the Court should adopt the “treating physician” rule; that there was “obvious error” in prior final VA rating decisions requiring that those prior final decisions be revised; and that the veteran should be excused from failing to appeal the February 1984 RO decision because he relied at that time on an erroneous diagnosis from a VA physician that there was nothing wrong with him. Additionally, the veteran states that the RO and BVA have erroneously concluded that the effective date of his present claim was November 18, 1988, when it was in fact no later than February 25, 1987.

II. ANALYSIS

A.

The Court does not agree with the veteran’s assertion that the RO and BVA erred in failing to construe his November 18, 1988, Statement in Support of Claim as a Notice of Disagreement (NOD) in response to the February 10, 1987, RO decision. On February 25, 1987, the veteran requested that his claim be reopened. R. at 187. The RO reopened his claim and, on February 10, 1988, issued a rating decision denying the claim. R. at 194. On November 18, 1988, the veteran submitted a “Statement in Support of Claim”, reasserting entitlement to service connection for his heart disorder, which the RO had just denied, but not referring to the February 1988 RO decision or to any RO decisions. R. at 197. On January 18, 1989, the RO issued a “deferred OR CONFIRMED RATING DECISION” confirming the February 1988 decision. R. at 199. On June 12, 1989, the veteran submitted a letter to the RO, stating: “I disagree with your decision of 1-23-89 of non-service connected heart condition.” R. at 205. The RO, and subsequently the BVA, concluded that the February 1988 RO decision [490]*490became final because the veteran had failed to file an NOD within one year after that decision. R. at 209; Nagler, BVA 90-24628, at 2. The veteran contends that his November 18, 1988, statement was a valid NOD to the February 1988 decision.

Pursuant to 38 C.F.R. § 19.118 (1991), a communication filed within one year after notice of an RO adjudicative decision was mailed to the veteran (see 38 U.S.C. § 7105(b)(1) (formerly § 4005)), will constitute a valid NOD to that decision if it “express[es] dissatisfaction or disagreement” with the RO decision “in terms which can be reasonably construed as a desire for review of that determination.” See Stokes v. Derwinski, 1 Vet.App. 201, 203 (1991). The veteran’s November 18, 1988, statement does not constitute a valid NOD because it neither addresses the February 1988 RO decision nor expresses disagreement with the RO’s denial of his claim in that decision. See Prenzler v. Derwinski, 928 F.2d 392, 394 (Fed.Cir.1991). Therefore, the Board correctly concluded that the February 1988 RO decision became final because the veteran failed to file a timely NOD to that decision.

B.

The Court holds that the veteran did submit new and material evidence to reopen his claim, finally denied by the RO February 1988, and that the Board erroneously failed to readjudicate his claim upon all the evidence of record. See 38 U.S.C. § 5108 (formerly § 3008); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). The Board concluded that “[t]he evidence submitted since the 1984 determination is new and material”. Nagler, BVA 90-24628, at 5. However, because the February 1988 RO decision became final when the veteran failed to file an NOD within one year, the correct inquiry is whether the evidence submitted since the February 1988 decision is new and material. The Court holds that it is.

The Court agrees with the parties that the Board failed to provide adequate reasons or bases explaining its evaluation of all lay and medical evidence of record, both old and new, and its analysis of the application of the benefit-of-the-doubt rule. See 38 U.S.C. § 7104(a), (d)(1) (formerly § 4004); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

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Related

Frankel v. Derwinski
1 Vet. App. 23 (Veterans Claims, 1990)
Gilbert v. Derwinski
1 Vet. App. 49 (Veterans Claims, 1990)
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1 Vet. App. 93 (Veterans Claims, 1990)
Myers v. Derwinski
1 Vet. App. 127 (Veterans Claims, 1991)
Manio v. Derwinski
1 Vet. App. 140 (Veterans Claims, 1991)
Webster v. Derwinski
1 Vet. App. 155 (Veterans Claims, 1991)
Hatlestad v. Derwinski
1 Vet. App. 164 (Veterans Claims, 1991)
Colvin v. Derwinski
1 Vet. App. 171 (Veterans Claims, 1991)
Stokes v. Derwinski
1 Vet. App. 201 (Veterans Claims, 1991)
Nagler v. Derwinski
1 Vet. App. 297 (Veterans Claims, 1991)
EF v. Derwinski
1 Vet. App. 324 (Veterans Claims, 1991)
Fletcher v. Derwinski
1 Vet. App. 394 (Veterans Claims, 1991)
Schafrath v. Derwinski
1 Vet. App. 589 (Veterans Claims, 1991)
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1 Vet. App. 596 (Veterans Claims, 1991)
Douglas v. Derwinski
2 Vet. App. 435 (Veterans Claims, 1992)
Quarles v. Derwinski
3 Vet. App. 129 (Veterans Claims, 1992)
Russell v. Principi
3 Vet. App. 310 (Veterans Claims, 1992)

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Bluebook (online)
3 Vet. App. 488, 1992 U.S. Vet. App. LEXIS 372, 1992 WL 337498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nagler-v-principi-cavc-1992.