Citation Nr: 0003614 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 93-28 158A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether the veteran has presented new and material evidence to reopen a claim for service connection for residuals of a right ankle injury. 2. Whether the veteran has presented new and material evidence to reopen a claim for service connection for residuals of a left ankle injury. 3. Whether the veteran has presented new and material evidence to reopen a claim for service connection for residuals of a right hand injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Associate Counsel INTRODUCTION The veteran served on active duty from May 5, 1988, to July 15, 1988. The appeal arises from the July 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, denying reopening of the veteran's claims of entitlement to service connection for residuals of a right ankle injury, residuals of a left ankle injury, and residuals of a right hand injury. In the course of appeal, the veteran testified before the undersigned member of the Board at a the RO in November 1999. A transcript of that hearing is included in the claims folder. The veteran was denied service connection for bronchitis in a January 1989 RO decision. She was advised of that determination by letter dated in January 1989, but did not initiate an appeal of that issue. The veteran requested reopening of her claim of entitlement to service connection for bronchitis in a VA Form 9 received in June 1994. The RO advised the veteran by letter in October 1994 that the prior denial of service connection for bronchitis in January 1989 had become final, and that in order to reopen her claim, new and material evidence would have to be submitted. There was no adjudicative determination made at the time. Thereafter, the issue of whether new and material evidence had been submitted to reopen a claim for service connection for bronchitis was erroneously covered in a March 1995 Supplemental Statement of the Case. There had been no rating action on this issue and no disagreement expressed with the December 1994 letter. Accordingly, the issue of whether new and material evidence has been presented to warrant reopening the veteran's claim of entitlement to service connection for bronchitis is not in appellate status. The veteran's representative addressed the issue as if it were in appellate status in a June 1996 VA Form 646. It was again addressed as an issue on appeal in a November 1997 Supplemental Statement of the Case, but not mentioned by the representative in a May 1998 VA Form 646. The issue was next addressed at a Board hearing before the undersigned Board member in November 1999. The latter event occurred because of the overbooking of Board hearings at the RO in November 1999, resulting in insufficient time for the undersigned Board member to review the record prior to the hearing. In any event, an appropriate rating action never occurred, there has been no adjudication of the issue since January 1989, the veteran and her representative have been misled by the RO as to the status of the issue, and the issue is not before the Board at the current time. The issue of whether new and material evidence has been submitted to reopen a claim for service connection for bronchitis is referred to the RO rating board for a determination of whether any evidence received by the RO in connection with a pending June 1994 claim, including the November 1999 testimony at the Board hearing, constitutes new and material evidence for the purpose of reopening a claim for service connection for bronchitis. The rating Board determination as to this issue will be subject to review on appeal, if proper appellate procedure is thereafter followed by the veteran and her representative. The Board notes that the veteran has been diagnosed with paranoid schizophrenia and has been noted to have problems with polysubstance abuse, including cocaine dependence. Other than a claim for entitlement to service connection for posttraumatic stress disorder (PTSD), which the RO deferred for further development in May 1999, it is unclear from the veteran's statements what further claims, if any, she has concerning the matter of service connection for a psychiatric disorder, other than PTSD. The RO should request that the veteran or her representative clarify what, if any, further claims are intended in this regard. REMAND Before the Board are issues of whether new and material evidence has been presented to reopen claims for service connection for residuals of a right ankle injury, residuals of a left ankle injury, and residuals of a right hand injury. Recently, in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), the U.S. Court of Appeals for the Federal Circuit held that "new and material evidence" as provided in 38 C.F.R. § 3.156(a) (1998) had been impermissibly defined in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991), as requiring "a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome" of the case. There are a number of Supplemental Statements of the Case on the appealed issues in the claims file, and in the most recent, in November 1997, the RO applied the Colvin test for new and material evidence to determine that the appealed claims were not reopened. Hence, even though the RO in its November 1997 Supplemental Statement of the Case applied the correct standard at that time for reopening claims, Hodge requires that the RO reconsider the requests to reopen the appealed claims under the appropriate standard post Hodge. Pursuant to Hodge, to determine whether the appealed claims for service connection should be reopened, the RO must rely on the language of 38 C.F.R. § 3.156(a) itself to determine whether new and material evidence has been submitted to reopen the claim. Thus, new and material evidence means evidence not previously submitted to agency decision makers, 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. The RO should readjudicate the issues of 1) whether the veteran has submitted new and material evidence to reopen a claim for service connection for residuals of a right ankle injury, 2) whether the veteran has submitted new and material evidence to reopen a claim for service connection for residuals of a left ankle injury, and 3) whether the veteran has submitted new and material evidence to reopen a claim for service connection for residuals of a right hand injury. The requests to reopen these claims must be adjudicated pursuant to the changes in the legal standard of review governing those determinations as outlined in Hodge. If service connection for any of the claimed disorders is not granted, the veteran and her representative should be furnished a Supplemental Statement of the Case which includes a summary of any additional evidence submitted, all applicable laws and regulations, and the reasons and bases for the decisions. They should be afforded an appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. The purpose of this remand is to comply with precedent decisions of the Court. See also Elkins v. West, 12 Vet. App. 209 (1999). 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. BRUCE E. HYMAN 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).