Hartog v. Derwinski

Hartog v. Derwinski, 2 Vet. App. 194, decided 1992-02-13.

ORDER

On January 14, 1992, appellant filed a motion for remand in order for his appeal to be reconsidered by the Board of Veterans’ Appeals (BVA or Board). The basis for appellant’s motion is that evidence to support his claim for total disability compensation based on unemployability was “available to the Board” but was “not submitted” by appellant’s representative. Appellant believes that this omission “contributed to the unfavorable decision of the BVA” and moves that his case be remanded in order for the Board to consider this evidence. In addition, appellant submitted five documents, three of which predate and two of which postdate the July 23, 1991, BVA decision on appeal.

On January 31, 1992, the Secretary of Veterans Affairs (Secretary) filed a response in opposition to appellant’s motion for remand. The basis of the Secretary’s opposition is that, because appellant is purportedly seeking to introduce evidence that has not been considered previously by the Board, the appropriate course of action would be for appellant to request that his claim be reopened to consider new and material evidence. With respect to the three items of evidence sought to be introduced by appellant, the Secretary does not state whether or not those items were in fact before the Board in its July 23, 1991, decision or in the claims file at the time of that decision or had been in any manner prof-erred to the Department of Veterans Affairs (VA) by appellant prior to that decision. See Rogozinski v. Derwinski, 1 Vet.App. 19, 20 (1990) (Court ordered parties to respond as to whether disputed “records had been proferred to the BVA at the time it rendered its decision which lead to [the] appeal”).

Review of Board decisions by this Court is statutorily restricted to the record of proceedings before the Secretary and the Board. 38 U.S.C. § 7252(b) (formerly § 4052(b)). See Rogozinski. Evidence obtained since the July 23, 1991, decision of the Board may be submitted to a VA regional office in an attempt to reopen appellant’s former claim, see 38 U.S.C. § 5108 (formerly § 3008), but it may not be made part of the record in the appeal now before this Court. Upon consideration of the foregoing, it is

*195ORDERED, sua sponte, that appellant s motion is deemed also to be a motion to counter-designate the three pre-BVA decision documents and that appellant and the Secretary, not later than 14 days after the date of this order, inform the Court as to whether any of the following three items which appellant seeks to counter-designate were before the Board, in appellant’s YA claims file, or preferred to the Board, prior to the BVA’s July 23, 1991, decision: (1) An April 19, 1989 letter from Karen Wickwire, Ph.D.; (2) a June 5, 1990, letter from E. Alexandra Ashleigh, M.D.; and (3) a June 6, 1990, record of adjudication decision of the Social Security Administration (SSA), including an “OHA Psychiatric Review Technique Form”. If the SSA adjudication records were not in appellant’s claims file or preferred by appellant prior to the July 23, 1991, BVA decision, the Secretary shall also inform the Court whether there was any other evidence in the claims file prior to that decision indicating that the veteran had been awarded Social Security benefits. If so, the Secretary shall further inform the Court as to whether VA made any efforts to obtain a copy of that decision, and whether the Secretary was under a duty to seek to obtain a copy pursuant to his statutory duty to assist the claimant. See 38 U.S.C. § 5107(a) (formerly § 3007); 38 C.F.R. § 3.103; Masors v. Derwinski, 2 Vet.App. 181, 187-88 (1992); Collier v. Derwinski, 1 Vet.App. 413, 416-17 (1991); Ferraro v. Derwinski, 1 Vet.App. 326, 332-33 (1991). It is further

ORDERED that appellant’s motion for remand to the BVA is held in abeyance pending further order of the Court.

Hartog v. Derwinski, 2 Vet. App. 195, decided 1992-03-25.

ORDER

On September 4, 1991, appellant filed a Notice of Appeal of a Board of Veterans’ Appeals (Board or BVA) decision issued on July 23, 1991. The BVA decision confirmed a Department of Veterans Affairs (VA) regional office (VARO) decision to grant appellant a 30% disability rating for post-traumatic stress disorder (PTSD). Appellant had sought a 70% disability rating. The BVA, however, made the 30% PTSD award effective back to December 11,1985, the date of appellant’s original claim. Appellant appealed to this Court the BVA’s failure to award a 70% rating.

On January 14, 1992, appellant submitted a motion for remand to the BVA for read-judication, asserting that certain items of evidence in his claims folder were not considered by the BVA. On February 13, 1992, the Court ordered the Secretary of Veterans Affairs (Secretary), not later than February 26, 1992, to inform the Court whether certain items of evidence identified by appellant were in his VA claims folder prior to the Board’s July 23, 1991, decision.

While the appeal was pending before this Court, and for reasons not clear from the record in the Court but apparently based on new and material evidence, the VARO issued a new rating decision on February 27,1992, granting appellant a 100% disability rating for PTSD, effective August 26, 1991. On the same day, without having responded to the Court’s February 13, 1992, order, the Secretary moved to stay further proceedings in this case on the grounds that appellant’s appeal is now moot. The Court stamp-granted the motion, staying proceedings until March 28, 1992. On March 6, 1992, appellant filed correspondence with the Court stating that he intended to pursue his appeal on the issue of entitlement to a service-connected rating higher than 30% for PTSD effective December 11,1985. In his correspondence, appellant stated: “My appeal with the Court is an entirely different and independent issue than my 2/27/92 award of 100 percent schedular rating since it predates the local authorization for an increased rating.”

A review of appellant’s March 6, 1992, correspondence demonstrates that appellant wishes to pursue his appeal on the grounds upon which it was originally filed in this Court. Appellant originally filed an appeal for review of the July 23, 1991, decision of the BVA. The Court has jurisdiction to determine whether, based upon the evidence before the BVA when it rendered its July 23, 1991, decision, the BVA committed error in finding that the veteran was entitled to only a 30% rating. 38 U.S.C. § 7252 (formerly § 4052).

The Court notes that it does not presently have jurisdiction to review the February 27, 1992, RO rating decision granting the veteran a 100% rating for PTSD to determine whether the veteran is entitled to an earlier effective date for that rating. The issue of entitlement to an earlier effective date for the 100% rating granted by the RO has not been presented to, nor ruled upon by, the BVA. A claimant seeking to appeal to the Court must have a final BVA decision. See Harris v. Derwinski, 1 Vet.App. 180, 182 (1991). This Court’s jurisdiction derives exclusively from statutory grants of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178-2179, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). Thus, the Court’s jurisdiction is limited to review of the July 23, 1991, BVA decision, without regard to the February 27, 1992 RO rating decision or any evidence received by the RO subsequent to the BVA decision here on appeal. On consideration of the foregoing, it is

ORDERED that the Secretary, not later than March 30, 1992, file the response to *197the Court’s February 13, 1992, order which was due to be filed by February 26, 1992.