Citation Nr: 0002594 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 98-02 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for the veteran's cause of death. REPRESENTATION Appellant represented by: Roger W. Rutherford, attorney at law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from June 1952 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1997 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which found no new and material evidence had been submitted with which to reopen the appellant's claim for service connection for the veteran's cause of death. The appellant, the veteran's widow, filed a timely notice of disagreement, initiating this appeal. A personal hearing before RO personnel was afforded her in April 1998. She also requested, and was scheduled for, a personal hearing before the Board; however, prior to the scheduled hearing, the appellant submitted a September 1998 written statement waiving her Board hearing request. This action is accepted by the Board as a valid waiver of a Board hearing under 38 C.F.R. § 20.704(e) (1999), and a remand is not necessary at this time to afford the appellant a hearing. REMAND 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). The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. The appellant, the veteran's widow, seeks to reopen a previously denied claim for service connection for the veteran's cause of death. In denying the request to reopen the service connection claim, the RO stated in the May 1998 supplemental statement of the case that "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." This test was established by the U. S. Court of Appeals for Veterans Claims (Court) in the case of Colvin v. Derwinski [1 Vet. App. 171, 174 (1991)]. Subsequent to the RO's most recent action in this claim, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated the definition of "new and material evidence" as outlined in Colvin. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Federal Circuit concluded in Hodge that the Colvin test impermissibly ignored the definition of "material evidence" adopted by the VA in 38 C.F.R. § 3.156 as a reasonable interpretation of an otherwise ambiguous statutory term and, without sufficient justification or explanation, rewrote the statute to incorporate an unduly burdensome definition of materiality. Hence, the Colvin test was removed for purposes of reopening claims for veterans' benefits. Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The current and sole standard for assessing new and material evidence is 38 C.F.R. § 3.156 (1999). Procedural fairness requires that the case be reconsidered by the RO, as the agency of original jurisdiction, under the correct standard prior to any Board consideration of the claim. Bernard v. Brown, 4 Vet. App. 384 (1993). Through no fault of the RO, the applicable law has changed subsequent to the last review of the claim. In light of the above, this claim is remanded for the following action: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. If the RO deems any further development is necessary prior to adjudication of this claim, it should be accomplished at this time. 2. After completion of any necessary development, the RO should review the appellant's claim. In so doing, the RO may use only the definition of new and material evidence as defined by 38 C.F.R. § 3.156 (1999). If the actions taken remain adverse to the appellant, she and her representative should be furnished with a supplemental statement of the case. They should then be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. G. H. SHUFELT 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) (1998).