Citation Nr: 0007269 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 97-20 277A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for service connection for a left leg condition. 2. Entitlement to service connection for depression, including secondary to a service-connected disability. 3. Entitlement to service connection for a left hip condition. 4. Entitlement to service connection for a herniated nucleus pulposus. 5. The propriety of the initial 10 percent rating assigned for a chronic recurrent low back strain. ATTORNEY FOR THE BOARD Keith W. Allen, Counsel INTRODUCTION The veteran served on active duty in the military from March 1962 to March 1965; he also had 2 months and 8 days of additional service. In April 1982, the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, denied the veteran's claims for service connection for a left leg condition and for a back condition. Later that month, the RO notified him of the decision, and of his procedural and appellate rights, and he did not timely appeal. Consequently, the decision became final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.200, 20.302, 20.1103 (1999). In September 1996, the veteran filed a claim at the RO in Togus, Maine, again requesting service connection for left leg and low back conditions. He also requested service connection for an acquired psychiatric disorder (depression), including secondary to a service-connected disability, and for a left hip condition. In March 1997, the RO in Togus granted service connection for a chronic recurrent low back strain and assigned a 10 percent rating effective from the date of the claim. The RO denied service connection for a left leg condition, depression, a left hip condition, and a herniated nucleus pulposus (HNP). The veteran appealed to the Board of Veterans' Appeals (Board)-requesting service connection for the conditions that were denied and a higher initial rating for his low back strain. Since the veteran is contesting the propriety of the initial rating assigned for the low back strain, this claim must be considered in light of the important distinction noted by the United States Court of Appeals for Veterans Claims (Court)- formerly, the United States Court of Veterans Appeals-in the recently-issued case of Fenderson v. West, 12 Vet. App. 119, 126 (1999). Also, because he did not timely appeal the earlier RO decision (in 1982) denying service connection for the left leg condition, the actual issue on appeal concerning this claim is whether he has submitted "new and material evidence" to reopen it. See 38 C.F.R. § 3.156(a) (1999); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). REMAND In his July 1997 Substantive Appeal (on VA Form 9, Appeal to the Board), the veteran indicated that he does not want a hearing before a Member of the Board, but that he does want a hearing before a hearing officer at the RO. Therefore, he must be scheduled for such hearing prior to further consideration of his appeal. Also, in a November 1998 statement, a representative of The American Legion indicated the veteran (through his spouse) would be submitting additional medical evidence from a private physician to show a nexus between the conditions he is claiming and his service in the military. The American Legion representative also acknowledged that the appeal, at least presently, is not ready for consideration by the Board-and possibly should be withdrawn-because of the absence of this evidence, and that, if the veteran and his spouse proceeded with the appeal-without first obtaining it-then that organization would not be representing him. As a result, the RO sent the veteran a letter in November 1998 requesting that he clarify whether he would be submitting the additional medical evidence and, if so, that he complete the enclosed release forms so that VA could obtain it for him. The RO also asked that he submit the evidence (or the release forms to obtain it) by December 6, 1998, and apprised him that, if he didn't, a decision would be made concerning his appeal based on the evidence already of record. He did not respond to the RO's letter or submit any additional evidence within the time frame specified, so the RO contacted his spouse in February 1999 concerning the matter. She indicated that he would be proceeding with his appeal, despite the earlier statements of The American Legion representative that such might not be warranted. The RO, in turn, asked that she or the veteran submit the release forms so the additional medical evidence could be obtained, which they still have not done. Also in February 1999, the veteran revoked his representation by The American Legion service organization; he earlier revoked his representation by the Veterans of Foreign Wars of the United States, so he is no longer represented in this appeal. Since other records on file, however, indicate the veteran currently may be residing in a nursing home (the Willows Nursing Care Center), and, in fact, may have been a resident there since September 1997, possibly explaining his failure to respond to the RO's request for additional information and/or evidence, he again should be contacted and requested to submit this evidence or to submit the release forms so that VA can obtain it for him. Accordingly, the claims hereby are REMANDED to the RO for the following development: 1. The RO again should contact the veteran and request that he identify all medical care providers (both VA and private) from whom he has received relevant treatment since service. This includes, but is not limited to, any records from the private physician in question suggesting a nexus or correlation of some sort between the conditions alleged and the veteran's service in the military. The records of such treatment should be requested and, if obtained, associated with the other evidence in the claims folder. 2. The RO should, at the earliest opportunity, schedule the veteran for a hearing before a hearing officer. If he decides that he no longer wants a hearing, then he must indicate this in a signed statement, and it must be associated with the claims folder. 3. Upon completion of the above development, and any additional development deemed warranted by the record, the RO should readjudicate the claims based on all additional evidence submitted or otherwise obtained, to include whether new and material evidence has been presented to reopen the claim of service connection for a left leg condition and consideration of staged ratings for the service-connected chronic recurrent low back strain, per Fenderson. If the benefits requested by the veteran are not granted to his satisfaction, the RO should provide him an appropriate Supplemental Statement of the Case and give him an opportunity to submit additional evidence and/or argument in response prior to returning his appeal to the Board, in accordance with all appellate procedures, for further consideration. The veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded to the RO. 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. BARBARA B. COPELAND Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board 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).