Citation Nr: 0005672 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 98-03 242 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for residuals of a right ankle sprain. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for residuals of a left ankle sprain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from November 1942 to March 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating action of the Newark, New Jersey Regional Office (RO) of the Department of Veterans Affairs (VA). REMAND In a memorandum submitted in May 1999, the veteran's representative indicated that the veteran had canceled a request for an April 1999 hearing before a Member of the Board sitting at the RO, but would like to be scheduled for a hearing before the local Hearing Officer "at a later date." A RO hearing by a hearing officer has apparently never been scheduled. In addition, there is no indication that the hearing request was withdrawn. Thus, to ensure full compliance with due process requirements, the Board finds that a remand is necessary. Regarding his attempt to reopen the claim of service connection for a left ankle disability, the veteran contends that he has submitted new and material evidence. During the course of this appeal, the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued a decision in the case of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) which affects the way in which evidence is to be evaluated in order to determine whether it is new and material. The Federal Circuit held that the test heretofore applied for determining whether recently presented evidence was material (see Colvin v. Derwinski, 1 Vet. App. 171 (1991)) was incorrect in that it imposed a higher burden than regulation promulgated by the Secretary of VA. In the January 1998 statement of the case (SOC) and subsequent supplemental statement of the case (SSOC), the RO indicated that to justify reopening, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome. This is the Colvin concept recently found to be improper. See Hodge, supra. Therefore, the Board finds that, on remand, the RO should consider whether the evidence already submitted by the veteran, as well as any evidence submitted on remand, is "material" as defined by regulation. See 38 C.F.R. § 3.156 (1998); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). In Elkins v. West, 12 Vet. App. 209 (1999), the United States Court of Appeals for Veterans Claims held that the process for reopening claims under the Federal Circuit's holding in Hodge, consists of three steps: the Secretary must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a); second, if new and material evidence has been presented, immediately upon reopening the Secretary must determine whether, based upon all the evidence and presuming its credibility, the claim as reopened is well grounded pursuant to 38 U.S.C.A. § 5107(a); and third, if the claim is well grounded, the Secretary may evaluate the merits after ensuring the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. On remand, the RO must apply 38 C.F.R. § 3.156, Hodge and Elkins. The case is REMANDED to the RO for the following: 1. The RO should schedule the veteran for a personal hearing before a hearing officer at the RO. 2. Thereafter, the RO should again review the veteran's claims. This should include consideration of 38 C.F.R. § 3.156 under Hodge and Elkins to determine if new and material evidence has been submitted to reopen the claim of service connection for a left ankle disability and, if so, whether the claim is well grounded. If the claim is reopened and found to be well grounded, the RO should consider the claim on the merits. Any necessary additional development, including the scheduling of a VA examination with medical opinion, should be undertaken. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case that contains a summary of the relevant evidence and a citation and discussion of the applicable laws and regulations. They should be given the opportunity to respond thereto. 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 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 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).