Citation Nr: 0003532 Decision Date: 02/10/00 Archive Date: 02/15/00 DOCKET NO. 97-20 556 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a left foot disorder. REPRESENTATION Appellant represented by: Roger W. Rutherford, Attorney at Law WITNESSES AT HEARINGS ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from February 1943 to July 1943. By rating decision of February 1944, the RO denied service connection for a left foot disorder. The veteran was notified of this decision and did not submit a timely appeal. As such, the decision became final. By a decision in November 1968, the Board of Veterans' Appeals (Board) denied service connection by aggravation for a left foot disorder and in February 1977, the Board found that new and material evidence had not been submitted to reopen the claim of entitlement to service connection for a left foot disorder. In May 1981, the RO again denied the veteran's petition to reopen his claim. The veteran was notified of the denial but did not perfect his appeal and the decision became final. 38 U.S.C.A. § 7105 (West 1991). The present appeal first came before the Board on appeal from an August 1995 rating decision in which the RO found that new and material evidence had not been submitted to reopen claim of entitlement to service connection for a left foot disorder. The veteran appealed and a personal hearing was held at the RO in June 1996. Thereafter, the veteran was afforded a hearing at the RO before the undersigned member of the Board in April 1998. By decision of September 1998, the Board found that new and material evidence had not been submitted to reopen the veteran's claim of entitlement to service connection for a left foot disorder. The veteran appealed to the United States Court of Appeals for Veterans Claims (Court). This matter now comes before the Board pursuant to a February 1999 order of the Court vacating and remanding the September 1998 Board decision which found that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for a left foot disorder, based on a change in the law concerning new and material evidence. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998); Elkins v. West, 12 Vet. App. 209 (1999). REMAND 38 U.S.C.A. § 5108 (West 1991) allows for a reopening of a previously denied claim, but only on the presentation of new and material evidence. "New and material" evidence is that which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (1999). In September 1998, the United States Court of Appeals for the Federal Circuit issued an opinion which overturned the test for materiality previously established by the Court in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the so-called "change in outcome" test). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Federal Circuit in Hodge mandated that materiality be determined solely in accordance with the definition provided in 38 C.F.R. § 3.156(a), as noted above. Subsequent to Hodge, the Court held that the decision of the Federal Circuit in Hodge, supra, now requires a three-step process for reopening claims. Elkins v. West, 12 Vet. App. 209 (1999). Under the new Elkins test, VA 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 VA 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 VA may then proceed to evaluate the merits of the claim but only after ensuring that the duty to assist under 38 U.S.C.A. § 5107(b) has been fulfilled. The Board is required to review all of the evidence submitted by an appellant since the last final denial of a claim on any basis, to include decisions by the RO or the Board which had refused, after having considered newly presented evidence, to reopen a previously disallowed claim because of a lack of new and material evidence. Evans v. Brown, 9 Vet. App. 273 (1996). A review of the record in the present case reveals that the August 1995 RO rating decision, the statement of the case and supplemental statements of the case, as well as the subsequent September 1998 Board decision, all relied on the now-invalidated Colvin test when addressing the veteran's claim to reopen. The Court has held that, when the Board proposes to address in its decision a question that has not been adequately addressed by the RO, the Board must consider whether the claimant has been given adequate notice of the need to submit evidence or argument on the question, whether he has been given an adequate opportunity to actually submit such evidence and argument, and whether the SOC and/or SSOC fulfills the regulatory requirements. See 38 C.F.R. § 19.29 (1999). If not, the matter must be remanded in order to avoid prejudice to the claimant. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Inasmuch as the decision regarding whether the veteran has submitted new and material evidence to reopen his claim of entitlement to service connection for a left foot disorder was based on the standard which was struck down in Hodge, supra, a remand is warranted to allow the RO to apply the standards set forth therein, prior to consideration of the issue on appeal by the Board. The case is REMANDED to the RO for the following action: The RO should review the record and re- adjudicate the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to PTSD. In so doing, the RO should consider and apply only the provisions of 38 C.F.R. § 3.156(a) and the holding of the United States Court of Appeals for the Federal Circuit in Hodge. If the determination remains adverse to the veteran, both the appellant and his representative should be provided with a supplemental statement of the case. The veteran and his representative should be given the opportunity to respond within the applicable time. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified, but he has the right to submit additional evidence and argument on the matter 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 or by the Court for further 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. LAWRENCE M. SULLIVAN 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 Court. 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).