Citation Nr: 0001925 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 96-00 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.A. Howell, Associate Counsel INTRODUCTION The veteran served on active duty from June 1971 to June 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which found that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for a back disability. In a decision dated in June 1997, the Board affirmed the RO's denial. Subsequently, the veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (the Veterans Claims Court). During the pendency of that appeal, the United States Court of Appeals for the Federal Circuit overturned the test for new and material evidence. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). By Order dated December 7, 1998, the Veterans Claims Court vacated the Board's June 1997 decision, and remanded the case pursuant to 38 U.S.C.A. § 7252(a). REMAND As an initial matter, the Board finds that a determination with respect to well-groundedness need not be made in this instance as the remand was directed by Order of the Veterans Claims Court and is necessary to correct a procedural or due process defect. The Board has a duty to assist the veteran in the development of facts pertinent to his claim and ensure full compliance with due process. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.159 (1999). During the pendency of the veteran's appeal, the United States Court of Appeals for the Federal Circuit overturned the test that had been used for new and material evidence. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board notes that the now-current standard for the submission of new and material evidence was not in effect at the time of the original RO decision. As such, due process dictates that this case be remanded for consideration and readjudication by the RO under the guidance provided in Hodge. Further, in the Joint Motion for Remand, the existence of Social Security Administration records was noted and an attempt will be made to associate those records with the claims file. Finally, the veteran apparently disagrees with the Spanish translation of a buddy statement; however, it is unclear from the record the nature of his disagreement. Accordingly, he will be given an opportunity to clarify the complaint on Remand. In view of the foregoing, this case is REMANDED for the following actions: 1. The veteran and the service representative should be advised that while the case is on remand status, the veteran is free to submit additional evidence and argument. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The RO should allow a reasonable time, but within a definite timeframe, for the submission of such additional evidence and argument, unless need for more time is shown or requested by the veteran or his representative. 2. The RO should, with the veteran's assistance as indicated, obtain for association with the claims folder, the records used by the Social Security Administration in granting disability benefits to the veteran. 3. The veteran should be requested to be more specific about the nature of his disagreement with the translation of the buddy statement and provide an alternative translation if he desires. 4. Thereafter, and upon the RO's receipt of any additional information or an indication from the veteran and his representative that there is nothing more to submit, the RO should readjudicate the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a back disability with reference to the current standard for the submission of new and material evidence as outlined in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), and 38 C.F.R. § 3.156 (1999), including recent medical evidence associated with the claims file. In the event the benefits sought are not granted, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. No action is required of the appellant until he is notified. The Board intimates no opinion as to the ultimate outcome in this case by the action taken herein. 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. MICHAEL D. LYON 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).