Citation Nr: 0002770	
Decision Date: 02/03/00    Archive Date: 02/10/00

DOCKET NO.  96-42 529	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, 
Michigan


THE ISSUES

1.  Entitlement to restoration of a 30 percent evaluation for 
post operative recurrent dislocation of the right (minor) 
shoulder. 

2.  Entitlement to an increased evaluation for post operative 
recurrent dislocation of the right (minor) shoulder, 
currently rated as 20 percent disabling.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant



INTRODUCTION

The veteran served on active duty from September 1967 to 
August 1969. 

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a June 1996 rating decision by the Detroit, 
Michigan, Regional Office (RO) of the Department of Veterans 
Affairs (VA).  

Although a November 1998 Certification of Appeal (VA Form 8) 
describes the issue in terms of an increased rating, the June 
1996 rating decision effected a reduction in the veteran's 
right shoulder disability from 30 percent to 20 percent.  
Because the veteran had been seeking an increased rating when 
his rating was reduced, the Board finds that the appeal 
encompasses two separate issues as styled on the first page 
of this decision. 

This case was previously before the Board and was the subject 
of a February 3, 1999, decision.  However, by separate Board 
decision made simultaneously with the following decision, the 
Board ordered the February 3, 1999, decision vacated.  


REMAND

The most recent supplemental statement of the case was issued 
on September 11, 1998.  In November 1998, certain items of 
medical evidence were received at the RO from the veteran's 
representative.  The claims file was transferred to the Board 
on November 30, 1998, but the items of medical evidence which 
had already been received at the RO were apparently not yet 
associated with the claims file and were therefore not 
transferred to the Board.  

Evidence received by the agency of original jurisdiction 
prior to transfer of the records to the Board will be 
reviewed and a supplemental statement of the case will be 
furnished to the veteran and his representative unless the 
evidence duplicates evidence of record which has already been 
addressed in a supplemental statement of the case or is 
otherwise not relevant.  38 C.F.R. § 19.37(a) (1999).

The evidence received in November 1998, but prior to the 
November 30, 1998, transfer of the claims file to the Board, 
includes copies of medical records dated in October and 
November 1998 showing treatment for the veteran's right 
shoulder disability.  Such evidence is clearly relevant.  
Moreover, as no supplemental statement of the case had been 
issued since September 11, 1998, it is also clear that the 
October and November 1998 medical records had not been 
considered and addressed in a previous supplemental statement 
of the case.  

Accordingly, the case is hereby REMANDED for the following 
actions:

1.  Any VA medical records (not already 
of record) documenting additional 
examinations/treatment for the veteran's 
right shoulder disability should be 
associated with the claims file.

2.  The RO should then review all items 
of evidence received since the September 
11, 1998, supplemental statement of the 
case, including but not limited to the 
October and November 1998 private medical 
records, and determine whether a basis 
exists for granting either or both issues 
on appeal.  The RO should then furnish 
the veteran and his representative with a 
supplemental statement of the case 
addressing both issues.  After they are 
afforded an appropriate opportunity to 
respond, the case should be returned to 
the Board for appellate review.  

The purpose of this remand is to ensure compliance with VA 
regulations and to afford the veteran due process of law.  
The Board intimates no opinions as to the eventual 
determinations to be made.   The veteran and his 
representative have 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 of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims 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.


		
	ALAN S. PEEVY
	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).