Citation Nr: 0004589	
Decision Date: 02/23/00    Archive Date: 02/28/00

DOCKET NO.  94-45 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, 
Puerto Rico



THE ISSUE

Entitlement to an increased (compensable) rating for the 
residuals of frostbite of the hands.



REPRESENTATION

Appellant represented by:	Jose L. Matta, Attorney



ATTORNEY FOR THE BOARD

Stanley Grabia, Associate Counsel



REMAND

The appellant had active service from November 1940 to 
December 1946.

This case 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.

As an initial matter, the Board finds that a determination 
with respect to well-groundedness need not be made in this 
instance as a remand is necessary in order to correct a 
procedural or due process defect.  

This case was remanded in April 1998 for additional 
development, including a review of the veteran's residuals of 
frostbite under the recently amended 38 C.F.R. § 4.104 Code 
7122. See 62 Fed. Reg. 65207-65224 (1997).  The RO had not 
had the initial opportunity to apply the new code, nor had 
the appellant been informed of the criteria, as required by 
due process of law considerations.  

The Board has reviewed the claims file and notes that post-
remand, the RO received a medical opinion regarding the 
residuals of the veteran's frostbite of the hands.  
Unfortunately, it appears that no further action was taken by 
the RO.  The claims file does not reveal that a rating 
decision was performed.  Nor does it contain a supplemental 
statement of the case informing the veteran or his 
representative of the amended rating criteria as required by 
the law.  In view of the foregoing, this claim is again 
regretfully remanded to comply with due process 
considerations.

1. The veteran should be advised that 
while the case is on remand status, he 
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). 

2. The RO should readjudicate the claim 
giving consideration to the revised 
Code 7122.  If the claim remains 
denied, the veteran and his 
representative should be provided an 
appropriate supplemental statement of 
the case and afforded a reasonable 
opportunity to respond. If any 
development is incomplete, appropriate 
corrective action is to be 
implemented. See Stegall v. West, 11 
Vet. App. 268 (1998) (compliance of a 
Court or Board directive is neither 
optional nor discretionary). 

Thereafter, the case should be returned to the Board, if in 
order.  No action is required of the appellant until he is 
notified.  The Board intimates no opinion as to the outcome 
in this case by the action taken above.

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).