Citation Nr: 0005650 Decision Date: 03/02/00 Archive Date: 03/14/00 DOCKET NO. 96-00 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased (compensable) disability rating for service-connected residuals of rheumatic fever, including cardiac arrhythmia and sinus tachycardia. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for chronic obstructive pulmonary disease either on a direct basis or as secondary to service-connected rheumatic fever. 3. Whether new and material evidence has been submitted to reopen a claim for service connection for arthritis of the spine and other joints either on a direct basis or as secondary to service-connected rheumatic fever. 4. Whether new and material evidence has been submitted to reopen a claim for service connection for dermatitis either on a direct basis or as secondary to service-connected rheumatic fever. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for psychiatric disorder either on direct basis or as secondary to service-connected rheumatic fever. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Gallagher, Counsel INTRODUCTION The veteran served on active duty from October 1943 to July 1945. In February 1994, the Board of Veterans' Appeals (Board) denied the veteran's claims for an increased (compensable) disability rating for service-connected residuals of rheumatic fever, including cardiac arrhythmia and sinus tachycardia; and for service connection for chronic obstructive pulmonary disease (COPD) either on a direct basis or as secondary to service-connected rheumatic fever; for arthritis of the spine and other joints either on a direct basis or as secondary to service-connected rheumatic fever; for dermatitis either on a direct basis or as secondary to service-connected rheumatic fever; and for a psychiatric disorder either on a direct basis or as secondary to service-connected rheumatic fever. This appeal arises from a March 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 1997, the Board remanded the case for further development. In a December 1997 decision, the Board denied the veteran's claims. The veteran appealed the December 1997 Board decision to the United States Court of Appeals for Veterans Claims (Court). The counsel for the Secretary submitted a Motion to Remand the case to the Board. The motion was unopposed by the veteran, and therefore the Court granted it in an order dated May 10, 1999. REMAND 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. In the Motion to Remand the case, the counsel for the Secretary stated that the case had to be remanded for two reasons: (1) Claims to Reopen Finally Denied Claims: The Board had denied the claims to reopen claims for service connection -- either on direct basis or as secondary to service-connected rheumatic fever -- for chronic obstructive pulmonary disease (COPD); for arthritis of the spine and other joints; for dermatitis; and for a psychiatric disorder on the basis that no new and material evidence had been received to reopen those claims since the Board's February 1994 decision, based on the test for new and material evidence provided by the Court's decision in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), and that decision had been overruled by the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F. 3d 1356 (Fed.Cir. 1998), and therefore remand was required for the Court to apply the less stringent Hodge standard to the claims to reopen finally denied claims; (2) Increased Rating Claim: After the Board's December 1997 decision denying the claim for an increased rating for service-connected residuals of rheumatic fever including cardiac arrhythmia and sinus tachycardia and during the pendency of the appeal to the Court, the criteria in the VA Schedule for Rating Disabilities for evaluating cardiovascular disorders changed, and therefore under the rule expressed in Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise, remand was required for the Board to review the case under both the old and the new criteria to see if an increased rating may be granted under the new criteria. In order for the Board to conduct the two analyses noted above without the RO having done so in the first instance, the Board must be able to state why -- despite not remanding the claim for the RO to conduct the analyses above in the first instance, thereby allowing the veteran the opportunity to request a hearing, to submit additional evidence, to present arguments based on the changes in the law, or to fulfill any other due process rights, -- the veteran was nevertheless not prejudiced by the Board's rendering of the decision in the first instance. VA O.G.C. Prec. Op. 11-97 at 3-4 (Mar. 25, 1997); Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993); Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). Because the Board is unable to state why the veteran would not be prejudiced by such an opportunity in this case, the Board concludes that it must remand the case for the RO to conduct the two analyses required by the Motion for Remand in the first instance. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain all treatment records for the service-connected residuals of rheumatic fever, including cardiac arrhythmia and sinus tachycardia, that have not already been associated with the claims file and place them in the claims file. The Board notes that no medical evidence has been presented or secured in this case which shows that any of the disabilities with which the veteran has been diagnosed in recent years are residuals of rheumatic fever to include cardiac arrhythmia and sinus tachycardia. In June 1997, a VA physician diagnosed history of rheumatic fever with no evidence of rheumatic heart disease, no sinus tachycardia, and no cardiac arrhythmia. Therefore, the veteran and his representative are hereby on notice that the best evidence to submit in this case on remand to afford the greatest chance of reopening the claims for service connection for any disability or of obtaining a compensable rating for service-connected residuals of rheumatic fever is medical evidence which shows that there are currently existing residuals of rheumatic fever or which shows that a current disability is related to a disease or injury incurred in service. 2. The RO should reajudicate the claim for an increased (compensable) disability rating for service-connected residuals of rheumatic fever, including cardiac arrhythmia and sinus tachycardia, under both "old" rating criteria for cardiovascular disorders (i.e., the criteria in effect prior to revisions made effective in January 1998) and the revised rating criteria for cardiovascular disorders. 38 C.F.R. § 4.404, Diagnostic Code 7000. Should the decision remain unfavorable to the veteran, the RO must provide a supplemental statement of the case (SSOC) which gives the veteran notice of the revised rating criteria for cardiovascular disorders. (The veteran already had been provided notice of the "old" criteria in the May 1995 statement of the case (SOC)). 3. Pursuant to the decision of the United States Court of Appeals for the Federal Circuit in Hodge v. West, 155 F. 3d 1356 (Fed.Cir. 1998), the RO should readjudicate whether new and material evidence has been submitted since the Board's February 1994 decision to reopen claims for service connection -- either on a direct basis or as secondary to service-connected rheumatic fever -- for chronic obstructive pulmonary disease; for arthritis of the spine and other joints; for dermatitis; and for a psychiatric disorder under the definition of new and material evidence provided in section 3.156(a) of VA regulations. 38 C.F.R. § 3.156(a) (1999). Should the decision remain unfavorable to the veteran, the RO must provide a supplemental statement of the case (SSOC) which gives the veteran notice of section 3.156(a) of VA regulations because he was not given notice of that regulation in either the May 1995 SOC or the July 1997 SSOC. 4. The RO and the appellant are also advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. On remand, the appellant is free to submit additional evidence and argument. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). However, he need take no action unless otherwise notified. BETTINA S. CALLAWAY 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).