**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 00-499

[Merritt I. Anderson, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided September 14, 2004 )

*Cindy B. Smith*, of Truckee, California, was on the pleadings for the
appellant.

*Tim S. McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Joan E. Moriarty*, Deputy Assistant General Counsel;
and *Catherine A. Chase*, all of Washington, D.C., were on the pleadings
for the appellee.

Before KRAMER, *Chief Judge*, and IVERS and STEINBERG, *Judges*.

IVERS, *Judge*, filed the opinion of the Court. STEINBERG, *Judge*,
filed a concurring opinion.

IVERS, *Judge*: The appellant, Merritt I. Anderson, appeals a December
7, 1999, decision of the Board of Veterans\' Appeals (BVA or Board) that
denied 12 separate claims for VA benefits. Record (R.) at 1-49. In an
August 27, 2002, single-judge dispositive order, the Court, inter alia,
vacated that portion of the December 7, 1999, decision of the Board that
denied, as not well grounded, claims for skin disorder, back disorder,
psychiatric disability (including post-traumatic stress disorder
(PTSD)), lung disorder, a cardiovascular disorder (including
hypertension), a kidney disorder, post-polio syndrome, residuals of a
claimed heat stroke, a disability manifested by fatigue and weakness,
and a claim for residuals of a pulmonary embolism pursuant to 38 U.S.C.
§ 1151, and remanded those matters pursuant to the Veterans Claims
Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096. The
previously remanded claims are not before the Court, and they will not
be addressed in this opinion. *Morgan v. Brown*, 9 Vet.App. 161, 162
(1996) (per curiam order). The appeal as to the remaining issues of
whether the Court has jurisdiction over the appellant\'s claims for
service connection for depression secondary to service-connected
impotence pursuant to section 1151, entitlement to an earlier effective
date for an increased rating for tinnitus, and for entitlement to
service connection for various disorders secondary to in-service tobacco
use remain before the Court. The appellant also contends that a remand
is required because VA failed to adjudicate the appellant\'s claim for
non-service-connected pension.

In an August 27, 2002, single-judge order, the Court directed that the
Secretary file a supplemental brief addressing the effect of section
603(a) of the Veterans Education and Benefits Expansion Act of 2001,
Pub. L. No. 107‑103, 115 Stat. 976, 999 (2001), upon this Court\'s
jurisdiction. Both parties have submitted supplemental memoranda. The
Court expresses its gratitude to the parties for their efforts in
responding to the August 27, 2002, order. The Court has determined, upon
further review, that that information is not necessary to decide the
appeal. This appeal is timely, and the Court has jurisdiction pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons set forth below,
the Court will affirm the Board decision in part and vacate it in part
and remand a matter.

**I. BACKGROUND**

The appellant served in the U.S. Army from May 24, 1960, to May 24,
1962. R. at 51, 130. He had service in the continental United States in
Texas, Alabama, and Utah. R. at 69-70. In 1992, the appellant submitted
a claim for entitlement to non-service-connected pension. R. at 380. In
April 1993, a VA regional office (RO) denied entitlement to
non-service-connected pension. R. at 395-98, 673. The appellant
submitted a Notice of Disagreement (NOD) in May 1993. R. at 395-98. In
November 1995, the RO prepared a Statement of the Case (SOC) for the
appellant\'s claim for non-service-connected pension. R. at 673. He
perfected his appeal on that claim on November 15, 1995. R. at 664-65.
In a January 1998 RO hearing, the appellant did not testify regarding
his claim for non-service-connected pension. R. at 2722-59. The Board
decision on appeal did not address the issue of non-service-connected
pension. R. at 1-49.

In September 1997, the appellant submitted a claim for service
connection for various disorders as secondary to in-service tobacco use.
R. at 2655-57. In an October 1997 letter, which is not contained in the
record but which both sides agree was included in the claims file, the
RO requested that the appellant provide evidence and information that
would support his claim relating to tobacco usage. In a December 1997
decision, the RO denied the appellant\'s claim for service connection
for lung and heart disabilities secondary to tobacco use in service.
Supplemental Record (Suppl. R.) at 1-4. In January 1998, the appellant
stated, at an RO hearing, that he believed that his hypertension and
coronary artery disease were directly related to his exposure to
chemicals, the military diet, and his smoking, all of which he was
exposed to while in the service. R. at 2743. The record does not
indicate that an NOD was ever filed regarding that claim.

In September 1995, the appellant submitted a claim for an increased
rating for hearing loss because of the need for bilateral hearing aids.
R. at 641. In a February 1996 RO decision not contained in the record on
appeal (ROA), the RO apparently granted the appellant a 10% disability
rating, effective September 1995, resulting in a combined rating of 20%.
The appellant submitted correspondence to VA dated March 17, 1996, in
which, among other things, he stated: \"First I sought a audio exam back
in 1995 that you people fail to recognize or allow in your decisions. If
you were allowing me 20% combined evaluation, why wasn\'t this allowed
back in 1985?\" R. at 711. He made the same assertion in correspondence
dated March 18, 1996, when he noted: \"I thank you for the additional
amount of compensation, however wonder why it wasn\'t allowed back in
1985!\" R. at 721.

**II. ANALYSIS**

A. Claim for Non-Service-Connected Pension

The appellant contends that the Board failed to adjudicate his claim for
non-service-connected pension and that, therefore, a remand is necessary
so that the Board may adjudicate the claim in accordance with 38 U.S.C.
§ 7104(d)(1). The Secretary argues that any such error would constitute
nonprejudicial error, because the appellant is legally ineligible for
non-service-connected pension. The Court agrees with the Secretary. To
be eligible for non-service-connected pension, a veteran must have
served during a period of war as statutorily defined; be permanently and
totally disabled; and meet certain income standards. 38 U.S.C. § 1521;
38 C.F.R. § 3.3(a)(3) (2003). The \"Vietnam era\" is statutorily defined
as follows:

> \(A\) The period beginning on February 28, 1961, and ending on May 7,
> 1975, in the case of a veteran who served in the Republic of Vietnam
> during that period.
>
> \(B\) The period beginning on August 5, 1964, and ending on May 7,
> 1975, in all other cases.

38 U.S.C. § 101(29). The record clearly indicates that the appellant
served from May 24, 1960, to May 24, 1962, and that he did not serve in
the Republic of Vietnam, but rather spent his entire military service in
the continental United States R. at 51, 69-70. The appellant\'s claim
must fail as a matter of law because he does not meet either of the
statutory requirements for an award of non-service-connected pension
relating to service during a period of war, here the Vietnam era.
\"Where the law and not the evidence is dispositive, the claim should be
denied.\" *Sabonis v. Brown*, 6 Vet.App. 426, 430 (1994). Even assuming
that the Board did fail to adjudicate the appellant\'s pension claim,
such error is nonprejudicial because the appellant\'s claim must fail as
a matter of law on the facts asserted by the appellant. *See* 38 U.S.C.
§ 7261(b)(2); *Valiao v. Principi*, 17 Vet.App. 229, 232 (2003).

B. Claim for Service Connection for Various Disorders Secondary to
In-Service Tobacco Use

The appellant contends that VA failed to adjudicate his informal claim
for service connection for disabilities related to his tobacco use in
service, and that therefore, a remand is required to permit VA to
adjudicate his claim. The Secretary argues that the Court has
jurisdiction over this claim because the Board addressed it in its
decision. R. at 3. The Board noted the following:

> The Board observes that the RO in December 1997 denied entitlement to
> service connection for chronic obstructive pulmonary disease and heart
> disease due to the use of tobacco products and notified the veteran of
> that determination. At the January 1998 RO hearing, comments were made
> regarding tobacco usage . . . but the record does not show a notice of
> disagreement was filed at the hearing or thereafter to initiate
> appellate review.

*Id*. The Secretary correctly asserts that, in December 1997, the RO
denied the appellant\'s claim for service connection for lung and heart
disabilities secondary to tobacco use in service. Suppl. R. at 1-4.
However, the record does not include an NOD filed by the appellant
regarding this claim. For the reasons that follow, the Court agrees with
the Secretary that the appellant has not submitted an NOD on that claim.

Section 7105(b) of title 38, U.S. Code, sets forth the statutory
requirements for an NOD. The NOD must be in writing and filed by the
appellant or a representative within one year \"from the date of mailing
of notice of the result of initial review or determination.\" 38 U.S.C.
§ 7105(b)(1), (2); *see* 38 C.F.R. § 20.302(a) (2003). If an NOD is not
filed within the one‑year time period, the RO decision \"shall become
final and the claim will not thereafter be reopened or allowed, except
as may otherwise be provided by regulations not inconsistent with this
title.\" 38 U.S.C. § 7105(c); *see Rowell v. Principi*, 4 Vet.App. 9, 17
(1993). An NOD is defined by regulation as \"\[a\] written communication
from a claimant or his or her representative expressing dissatisfaction
or disagreement with an adjudicative determination by the \[RO\] and a
desire to contest the result\" and it \"must be in terms which can be
reasonably construed as disagreement with that determination and a
desire for appellate review.\" 38 C.F.R. § 20.201 (2003); *see Gallegos
v. Principi*, 283 F.3d 1309 (Fed. Cir. 2002) *cert. denied*, 537 U.S.
1071 (2002). \"There can be only one valid NOD as to a particular claim,
extending to all subsequent RO and BVA adjudications on the same claim
until a ***final*** RO or BVA decision has been rendered in that matter,
or the appeal has been withdrawn by the claimant.\" *Hamilton v. Brown*,
4 Vet.App. 528, 538 (1993) (en banc) (emphasis in original). \"Whether a
document is an NOD is a question of law for the Court to determine de
novo under 38 U.S.C. § 7261(a)(1).\" *Beyrle v. Brown*, 9 Vet.App. 24,
28 (1996).

At a January 1998 RO hearing, the appellant testified that he believed
that his hypertension and coronary artery disease were directly related
to his smoking while in service. R. at 2743. He did not allege that the
RO had erroneously denied service connection for lung and heart
disabilities secondary to tobacco use in service in its December 1997
decision, nor did he express \"dissatisfaction or disagreement with an
adjudicative determination by the \[RO\] and a desire to contest the
result\" and communicate it \"in terms which can be reasonably construed
as disagreement with that determination and a desire for appellate
review.\" 38 C.F.R. § 20.201. The record does not contain anything that
can be construed as an NOD submitted by the appellant regarding the
RO\'s denial of that claim. Since the appellant\'s claim for service
connection for various disorders secondary to in-service tobacco usage
was not in appellate status before the Board, the Board was not required
to address, and did not address, that claim. Thus, the Court lacks
jurisdiction over that claim. *See Hamilton*, 4 Vet.App. at 531.

C. Earlier Effective Date for Service-Connected Tinnitus

The appellant asserts that a remand is required regarding his claim for
an earlier effective date for service connection for tinnitus. In
September 1995, he submitted a claim for an increased rating for hearing
loss because of the need for bilateral hearing aids. R. at 641. Although
the ROA does not contain the February 1996 RO decision, apparently the
RO granted the appellant a 10% rating for tinnitus effective September
1995, resulting in a combined rating of 20%. The appellant submitted
correspondence to VA dated March 17, 1996, in which, among other things,
he stated: \"First I sought a\[n\] audio exam back in 1995 that you
people fail to recognize or allow in your decisions. If you were
allowing me 20% combined evaluations, why wasn\'t this allowed back in
1985?\" R. at 711. He made the same assertion in correspondence dated
March 18, 1996, when he noted: \"I thank you for the additional amount
of compensation, however wonder why it wasn\'t allowed back in 1985!\"
R. at 721. He expresses \"dissatisfaction or disagreement with an
adjudicative determination by the \[RO\] and a desire to contest the
result\" and communicates it \"in terms which can be reasonably
construed as disagreement with that determination and a desire for
appellate review.\" 38 C.F.R. § 20.201. Liberally interpreted, the
appellant\'s \"wonder why it wasn\'t allowed back in 1985\" was an
expression of disagreement with the effective date assigned.

The Court holds that either the March 17 or March 18, 1996, letter to
the RO constituted a valid NOD. His inquiries constituted written
communications that expressed dissatisfaction with the February 1996 RO
decision regarding the effective date assigned for his service-connected
tinnitus. The record does not indicate that VA has ever issued an SOC as
required by 38 U.S.C. § 7105(d). Nor did the December 1999 Board
decision on appeal address the issue of the appellant\'s NOD regarding
an earlier effective date for his service-connected tinnitus. **As we
held in *Fenderson v. West*:**

> **Hence, we are presented here with a timely NOD as to this claim but
> regarding which the RO has never responded by issuing an SOC as
> required by law and regulation. The remedy for such a situation is
> controlled by our opinion in *Holland v. Gober*, 10 Vet.App. 433, 436
> (1997) (per curiam order) (vacating BVA decision and remanding matter
> when VA failed to issue SOC after claimant submitted timely NOD) . . .
> .**

***Fenderson*, 12 Vet.App. 119, 132 (1999). Thus, as in *Fenderson*,
\"the Court will . . . vacate the BVA decision as to this matter and
remand to the Board \'for appropriate procedural compliance,
specifically the issuance of an SOC.\'\" *Fenderson*, *supra* (quoting
*Holland*, *supra*); *see* 38 U.S.C. § 7105(d)(1); 38 C.F.R. §§ 19.26,
19.29 (2003). Thereafter, the appellant will be afforded 60 days in
which to perfect his appeal by filing a Substantive Appeal pursuant to
38 U.S.C. § 7105(d)(3) and 38 C.F.R. §§ 20.202 and 302(b) (2003). *See
Fenderson*, *supra*.**

D. Claim for Compensation Secondary to an Award of

Compensation for Disability pursuant to 38 U.S.C. § 1151

The Court notes that the appellant\'s characterization in his pleadings
of his newly raised claim for depression as a claim for secondary
service connection from his service-connected impotence pursuant to
section 1151 is incorrect. A claim under section 1151 is not, properly
speaking, a claim for service connection pursuant to section 1151. The
Court has observed: \"Section 1151 does not confer upon its
beneficiaries the ***status*** of service connection; rather, section
1151 ***awards compensation as if the claimant were service
connected***. In other words, section 1151 nowhere provides that the
***disability*** is, as the appellant suggests . . , to be treated
generally as if it were service connected.\" *Kilpatrick v. Principi*,
16 Vet.App. 1, 5 (2002)(emphasis in the original). Thus, the correct
description for the appellant\'s claim is a claim for compensation
secondary to an award of compensation for disability pursuant to section
1151. While the parties in their pleadings and this Court in the past,
*see Hamilton,* 4 Vet.App. at 527-28, have interchangeably used the term
\"service connection\" with a section 1151 claim, as the Court
illustrated in *Kilpatrick*, *supra*, such usage is not legally
accurate.

The appellant asserts that, although the Board granted compensation as
if he were service connected for impotence pursuant to 38 U.S.C. § 1151
(R. at 48), the Board failed to consider a claim for compensation for
depression secondary to the award for impotence . The appellant notes
that various VA outpatient records indicate that the appellant\'s
depression may be related to his unresolved sexual issues. *See e.g.* R.
at 336, 338, 347, 354, 1350. He argues that, because he has been granted
compensation as if he were service connected for impotence, the Board\'s
failure to consider him for a claim for compensation for depression
secondary to the award for impotence requires that the claim be remanded
to the Board to analyze the depression claim as a claim for compensation
for depression secondary to the section 1151 award for impotence. The
Secretary counters that the Court lacks jurisdiction because the
appellant has not submitted an NOD addressing a denial of a claim for
secondary service connection for depression, nor is there any claim
pending on that issue.

Although the December 1999 Board decision lists only a claim for service
connection for a psychiatric disability, including PTSD, it is apparent
that the Board also adjudicated and denied the appellant\'s claim for
service connection for a psychiatric disorder, including depression
(although not listed as a separate claim) (R. at 35). At the RO, that
claim was listed as a separate and distinct claim from the appellant\'s
claim for service connection for PTSD. *See* R. at 745-58, 760-62,
2739-41. The Court remanded the appellant\'s claim for service
connection for a psychiatric disability, including PTSD and depression,
in its August 2002 order. Therefore, that claim is not before us but
rather the Board.

The Court notes that the appellant\'s previously remanded claim for
service connection for a psychiatric disability including depression is
distinguishable from his newly asserted claim for compensation for
depression secondary to the section 1151 award for impotence. The
appellant has raised the claim for compensation secondary to an award of
compensation for disability pursuant to section 1151 for the first time
before this Court. Because the new claim for compensation is derivative
of his section 1151 grant of compensation for impotence, he could not
have raised such a claim until he had been granted compensation upon
which to base it, with the possible exception of making such a claim
contingent upon a grant of an award in the underlying compensation
claim, which is not the case here. Thus, the Board could not have erred
by failing to consider such a claim.

There is a legal distinction between filing a claim for service
connection for a disability pursuant to 38 U.S.C. § 1110 and a claim for
compensation derived from a grant of compensation pursuant to 38 U.S.C.
§ 1151. *See* *Kilpatrick*, 16 Vet.App. at 5; *cf.* *Carpenter v. West*,
11 Vet.App. 140, 142-43 (1998); *Green v. Brown*, 10 Vet.App. 111,
114-16 (1997). Although, as in this case, the appellant has a claim for
service connection for depression pending pursuant to 38 U.S.C. § 1110,
any claim for compensation based upon his award of compensation for
impotence pursuant to section 1151 impotence constitutes a separate and
distinct claim for VA benefits. In other words, the appellant may have
two separate claims for the same condition based upon separate legal
bases, i.e., for service connection pursuant to 38 U.S.C. § 1110 and for
compensation secondary to an award of compensation pursuant to section
1151.

The Court does not have jurisdiction in the first instance to hear the
appellant\'s claim for compensation secondary to an award of
compensation for impotence pursuant to section 1151. The claim has not
been adjudicated by VA and the Court is not authorized to make findings
of fact in the first instance to decide such a claim. *See* *Elkins v.
Gober*, 229 F.3d 1369, 1377 (Fed. Cir. 2000) (\"fact‑finding in veterans
cases is to be done by the expert BVA, not by the Veterans Court.\");
*Hensley v. West*, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (noting \"the
general rule that appellate tribunals are not appropriate fora for
initial fact finding\"). There is also no NOD, nor could there be
because there was no claim below, nor is there a final Board decision
over which the Court may exercise jurisdiction. The appropriate forum
for the appellant\'s claim for compensation secondary to an award of
compensation pursuant to section 1151 is VA, not this Court.

E. Miscellaneous The appellant argues that a remand is required for the
Board to provide an adequate statement of reasons or bases regarding
clear and unmistakable error (CUE) in the July 1962 RO decision that
denied service connection for a low back disability. There is no
indication in the record that the appellant raised the issue of CUE at
the RO or the Board. This issue was raised for the first time in the
appellant\'s brief before this Court. Because this issue was neither
raised before, nor adjudicated by VA, the Court lacks jurisdiction to
review it. *Crowe v. Brown*, 7 Vet.App. 238, 248 (1994).

The appellant also contends that VA violated the pre-VCAA duty to assist
when it failed to obtain his Social Security Administration (SSA)
records. The appellant may raise the issue of the SSA records at the
Board during the adjudication of the previously remanded claims.

**III. CONCLUSION**

For the reasons stated above, the December 7, 1999, Board decision is
AFFIRMED in part, and the earlier-effective-date claim for
service-connected tinnitus is VACATED and that matter is REMANDED.

STEINBERG, *Judge*, concurring: The Court has found it unnecessary to
address the effect of section 603(a) of the Veterans Education and
Benefits Expansion Act of 2001 (VBEA), Pub. L. No. 107-103, § 603(a),
115 Stat. 976, 999, in repealing section 402 of the Veterans\' Judicial
Review Act (VJRA), Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122
(1988) (set forth in 38 U.S.C. § 7251 note). This matter has been
addressed, however, by the appellant in his reply brief and by the
Secretary in a supplemental brief filed in response to an order of the
Court. Because the Secretary has asserted \"that the Court does not have
jurisdiction over claims . . . as \[to which\] there is no Board
decision\" (Secretary\'s Sept. 26, 2002, Response (Resp.) at 3), I want
to set forth my view that this contention and certain other positions
taken by the Secretary are not correct.

As a result of the repeal of VJRA § 402, the filing of a Notice of
Disagreement (NOD) after November 17, 1988, is no longer a
jurisdictional prerequisite for this Court\'s jurisdiction over a case
where the appeal was filed here on or after December 27, 2001, or where
the appeal was filed here before that date but a final decision has not
been made by December 27, 2001. VBEA § 603(d). There is no dispute about
this conclusion. However, the Secretary goes on to assert that because

> a final Board decision is a jurisdictional requirement for the Court,
> to conclude that the Court may review a claim on the merits without an
> NOD, \[sic\] would place the Court in the anomalous position of
> reviewing \[regional office (RO)\] decisions which the Board would not
> have jurisdiction to review.

Resp. at 5. The Secretary\'s position that a BVA decision is required on
a particular claim or matter in order for this Court to have
jurisdiction over such a claim or matter on appeal overlooks the
situation, clearly contemplated in our caselaw, where the Board fails to
address a claim or a matter over which the Board had jurisdiction by
virtue of an NOD as to either an RO\'s adverse decision or as to an
RO\'s failure to address a claim or matter reasonably raised to it. *See
Fenderson v. West*, 12 Vet.App. 119, 131-32 (1999) (ordering Board to
direct issuance of Statement of the Case (SOC) where RO failed to issue
SOC as to claim after receiving timely filed NOD regarding that claim);
*Velez v. West*, 11 Vet.App. 148, 157 (1998); *Garlejo v. Brown*, 10
Vet.App. 229, 233 (1997) (citing *Johnston v. Brown*, 10 Vet.App. 80
(1997); *Phillips v. Brown*, 10 Vet.App. 25 (1997); *Slater v. Brown*,
9 Vet.App. 240 (1996); and *Isenbart v. Brown*, 7 Vet.App. 537, 540-41
(1995)).

In my view, the law at this point, in light of the repeal of VJRA § 402
by VBEA § 603, is that this Court has jurisdiction in any of the
following circumstances as to post-December 26, 2001, appeals here or
appeals here that were not finally decided by December 27, 2001:

\(1\) Where the Board has addressed a claim or matter as to which there
was a valid NOD as to either an RO\'s adverse decision on that claim or
matter or as to an RO\'s failure to address a claim or matter reasonably
raised to it, *see* 38 U.S.C. § 7266; *Fenderson, Velez*, and
*Isenbart*, all *supra*;

\(2\) where the Board has addressed a claim or matter even though there
was no valid NOD as to that claim or matter (the Court could address
either the question of the Board\'s lack of jurisdiction in light of the
38 U.S.C. § 7105(b) NOD requirement or address the merits of the
Board\'s action, *see* 38 U.S.C. § 7252(a)); otherwise, an incorrect,
adverse, final Board decision on a claim or matter would be allowed to
stand without the possibility of correction through judicial review,
*see* 38 U.S.C. §§ 7252(a), 7266;

\(3\) where the Board failed to address a claim or matter even though a
valid NOD has been filed as to an RO\'s adverse decision on that claim
or matter or as to an RO\'s failure to address a claim or matter
reasonably raised to the RO, *see Fenderson, Velez*, and *Isenbart*, all
*supra*; and

\(4\) where the Board failed to refer to an RO a claim or matter raised
for the first time to the Board in the course of an appeal of an RO\'s
action on another claim or matter, *see Godfrey v. Brown*, 7 Vet.App.
398, 409 (1995); in this situation the Court would have jurisdiction to
direct the Board to refer that claim or matter to an RO.