Citation Nr: 0003768 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 97-06 784 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for bursitis of the left hip. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for residuals of head trauma with migraine headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kathleen Reardon Fletcher, Associate Counsel INTRODUCTION The veteran served on active duty from April 1978 to January 1984. By rating decision in November 1984, the Muskogee, Oklahoma RO denied service connection for arthritis of multiple joints. The veteran was notified of that decision by letter dated in December 1984; however, she failed to file a timely appeal therefrom and that action became final. See 38 C.F.R. §§ 20.302, 20.1103. In October 1991, the veteran requested that the claim for entitlement to service connection for arthritis of multiple joints be reopened. By rating decision in August 1992, the Boston, Massachusetts RO again denied service connection for arthritis of multiple joints. The August 1992 rating decision also denied service connection for bursitis of the left hip and residuals of head trauma with migraine headaches. The veteran was notified of that decision by letter dated in September 1992; however, she failed to file a timely appeal therefrom and that action became final. Id. Recently, the veteran requested that the claims for entitlement to service connection for arthritis of multiple joints, bursitis of the left hip and residuals of head trauma with migraine headaches be reopened. This matter comes before the Board on appeal from an October 1996 rating decision by the Roanoke, Virginia RO that determined that no new and material evidence had been submitted to reopen claims for entitlement to service connection for arthritis of multiple joints, entitlement to service connection for bursitis of the left hip, and entitlement to service connection for residuals of head trauma with migraine headaches. With respect to the claim concerning arthritis, a review of the record shows that at a personal hearing in June 1997, the proceedings of which have been transcribed, the veteran expressly withdrew from appellate status the issue of whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for arthritis of multiple joints. This is certainly permissible under the Board's rules of practice so long as it is done in writing, which the veteran did. (The Board notes that the hearing transcript meets the requirement that withdrawal be in writing). 38 C.F.R. § 20.204. Given the veteran's clear intent to withdraw as expressed during a June 1997 personal hearing, further action by the Board is not appropriate. 38 U.S.C.A. § 7105(d). In addition, it is noted that contentions have been advanced concerning the issue of service connection for fibromyalgia, which was denied by the RO in August 1999. It does not appear that a notice of disagreement has been submitted concerning this denial; accordingly, it is not in appellate status and is not before the Board at this time. REMAND The veteran contends that the RO erred by failing to grant service connection for bursitis of the left hip and residuals of head trauma with migraine headaches. It is noted that the United States Court of Appeals for Veterans Claims (Court) in Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991) set forth a test that required that, in order to reopen a previously denied claim, "there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome." Colvin at 174. In holding that the claims had not been reopened, the RO clearly relied on the Colvin test, noting in the October 1996 rating action and the December 1996 statement of the case (SOC) the following language: To justify a reopening of a claim on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. There is no reasonable possibility that the new evidence submitted in connection with the current claim would change our previous decision. The Board notes, however, that in a recent decision, Hodge v. West, 155 F. 3d 1356 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) concluded that in the Colvin decision, the Court impermissibly ignored the definition of "material evidence" adopted by VA (in 38 C.F.R. § 3.156) as a reasonable interpretation of an otherwise ambiguous statutory term (38 U.S.C.A. § 5108) and, without sufficient justification or explanation, rewrote the statute to incorporate the definition of materiality from an altogether different benefits scheme. Hence, the Federal Circuit overruled the Colvin test for purposes of reopening claims for the award of veterans' benefits. In reaching this conclusion, the Federal Circuit further observed that "not only did the [C]ourt's adoption of the Colvin test improperly negate the regulation implemented by [VA], it may undermine the operation of the veterans' benefits system by altering its traditional character, making it more difficult for veteran claimants to submit additional evidence for Board consideration." Hodge, supra. In view of this decision by the Federal Circuit, the veteran's application to reopen the previously denied claims for service connection for bursitis of the left hip and residuals of head trauma with migraine headaches must be remanded for a determination as to whether the evidence submitted by the veteran is "material" as defined under 38 C.F.R. § 3.156(a) (1999) rather than under Colvin. The Board notes that although the veteran was provided with a supplemental statement of the case (SSOC) for the above issues in August 1999, the RO adjudicated the claims as entitlement to service connection for bursitis of the left hip and residuals of head trauma with migraine headaches, rather than adjudicating the claims for service connection for bursitis of the left hip and residuals of head trauma with migraine headaches as attempts to reopen prior final disallowed claims. VA regulations require the agency of original jurisdiction to provide the veteran with a SOC or SSOC that contains, inter alia, "a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination . . . ." 38 C.F.R. § 19.29. Because the SSOC issued to the veteran in the present appeal did not contain a discussion of the standards employed in determining whether a claim is to be reopened, remand is required to ensure the veteran full procedural due process of law. The case is consequently REMANDED for the following action: The RO should readjudicate the appellant's claims. In readjudicating the issues of whether the appellant has submitted new and material evidence sufficient to reopen claims of entitlement to service connection for bursitis of the left hip and residuals of head trauma with migraine headaches, the RO should consider whether the evidence submitted by the appellant is "material" as defined under 38 C.F.R. § 3.156(a) (1999) rather than under Colvin. If any claim is denied, a supplemental statement of the case should be issued that includes all of the law and regulations pertaining to finality. The appellant should be given an opportunity to respond thereto. Thereafter, this case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the 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. C. W. SYMANSKI 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).