Citation Nr: 0005157 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-09 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for dermatitis, to include fungus infection of the fingers and toes, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from November 1942 to February 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. REMAND A preliminary review of the record discloses that additional action by the RO is required before the Board can adjudicate the issue listed on the title page of this decision. While the Board regrets the delay associated with this remand, this action is necessary to ensure that the veteran's claim is fairly adjudicated. Generally, any pertinent evidence that is accepted by the Board must be referred to the RO for review and preparation of a supplemental statement of the case (SSOC), unless the veteran or his representative waives this procedural right. See 38 C.F.R. § 20.1304(c) (1999). This procedural requirement has not been met in this case. Additional evidence is shown to have been associated with the veteran's claims folder that has not been considered by the RO. Specifically, this evidence is shown to have been received by the RO on August 18, 1998, subsequent to the RO's issuance of the May 1998 statement of the case (SOC). Review of this evidence shows that it consists of medical records from the VA Medical Center in Buffalo, New York, in the form of: consultation notes (April and July 1998); discharge summaries (July/August 1996, September 1996, March/April 1997, and February and April 1998); occupational therapy notes (June 1998); outpatient pharmacist treatment plans (November 1997 and May 1998); operative reports (August and September 1996, and February and May 1998); nursing notes (July 1996 and April 1998); pulmonary function test results (July 1997); counseling records (August 1996); and nutrition notes (August 1996). A review of the record shows that some of the newly submitted evidence, such as the July/August and September 1996 and March/April 1997 discharge summaries was previously associated with the veteran's claims folder. Specifically, this evidence was of record at the time of the May 1998 SOC. However, further review indicates that some of the submitted evidentiary documentation was not of record at such time. Evidence submitted subsequent to the RO's issuance of the May 1998 SOC, and which is not shown to have been previously associated with the record, is noted to include some of the VA medical records cited above; specifically, those dated subsequent to November 1997. Newly submitted pertinent evidence is shown to include the February and April 1998 discharge summaries, which are noted to, in part, involve treatment for and/or examination of, the veteran's skin. In essence, neither the veteran nor his representative has indicated that the veteran's right to have this evidence initially considered by the RO has been waived. Therefore, this case must be remanded in accordance with 38 C.F.R. §§ 19.31 and 20.1304(c) (1999). See also 38 C.F.R. § 19.9 (1999). In order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary prior to additional appellate review. Accordingly, this case is REMANDED for the following action: The RO should review the evidence submitted by the veteran subsequent to the issuance of the May 1998 SOC and adjudicate the issue currently on appeal, as shown on the title page of this decision. If any benefit sought is not granted, the veteran and his representative should be furnished an SSOC that addresses this evidence, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review, as appropriate. The purpose of this REMAND is to ensure satisfaction of due process concerns. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the veteran unless he is so notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. SANDRA L. SMITH Acting Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).