Citation Nr: 0004291 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 97-19 890 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Whether new and material evidence has been submitted to reopen the appellant's claim for entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant served on active duty from June 1971 to June 1972. The instant appeal arose from an August 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in North Little Rock, Arkansas, which denied a claim to reopen a claim for service connection for a back disorder. In August 1998 the Board of Veterans' Appeals (Board) denied the application to reopen a claim for service connection for a back disorder. The Board noted that the applicable law required, for a claim to be reopened, a determination of materiality in the sense that when viewed in the context of all the evidence, the new evidence would raise "a reasonable possibility of changing the previous disallowance of the claim." The veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"). In January 1999, the VA General Counsel and an attorney representing the veteran before the Court filed a Joint Motion for Remand and to Stay Further Proceedings. The parties noted that the test for materiality set forth in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) (the so- called "change in outcome" test), had been invalidated in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), a decision which had been issued by the United States Court of Appeals for the Federal Circuit (Federal Circuit) after the Board had issued its decision in the instant case. The parties further noted that the Federal Circuit in Hodge had mandated that new and material evidence be determined pursuant to 38 C.F.R. § 3.156(a). Because the Board had relied on the Colvin test when it considered the veteran's appeal in August 1998, the parties requested that the Court vacate the Board's August 1998 decision and remand the matter so that the Board could consider and apply 38 C.F.R. § 3.156(a) and the Federal Circuit's holding in Hodge. The Court granted the joint motion in February 1999, remanding the case to the Board on the issue of whether new and material evidence had been submitted to reopen the appellant's claim for entitlement to service connection for a back disorder. REMAND A review of the record shows that the RO employed the Colvin test when developing and adjudicating the veteran's appeal. In view of the fact that the RO has not fully considered whether the evidence submitted since the last final denial is "new and material" under the standards set forth in 38 C.F.R. § 3.156(a), the Board deems that a remand is required in order to avoid the possibility of prejudice to the veteran. Therefore, the Board will remand this matter to the RO. 38 C.F.R. § 19.9 (1999); Cf. Bernard v. Brown, 4 Vet. App. 384 (1993). For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran, through his representative, and inform him of his right to supplement the record on appeal, including appearing at a hearing. 2. After the veteran has been given an opportunity to supplement the record on appeal, including appearing at a hearing, the RO should take adjudicatory action on the matter of whether new and material evidence has been received to reopen a claim of entitlement to service connection for a back disorder. In so doing, the RO should consider and apply the provisions of 38 C.F.R. § 3.156(a) and the Federal Circuit's decision in Hodge. If any benefit sought is denied, a Supplemental Statement of the Case (SSOC) should be issued. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The appellant 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 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. C. P. RUSSELL 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).