Citation Nr: 0005535 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 94-06 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable disability evaluation for residuals of the removal of a pterygium of the right eye. 2. Entitlement to a total disability evaluation for compensation purposes based upon individual unemployability. REPRESENTATION Appellant represented by: To Be Clarified WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant served on active duty from January 1951 to February 1954. This appeal originates from a decision dated in April 1993 by the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). In March 1996, the Board of Veterans' Appeals (Board) denied the appellant's claims to an increased disability evaluation for residuals of removal of a pterygium of the right eye and for a total disability evaluation for compensation purposes based upon individual unemployability. The appellant appealed to the Court. In October 1997, 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") issued an Order which vacated the March 1996 Board decision and remanded the case to the Board for proceedings consistent with the Joint Motion for Remand. In March 1999, the Board remanded the case for additional development. Subsequently, a July 1999 rating action continued the prior denials. REMAND In a July 23, 1999, fax memorandum, the veteran, through his attorney, requested copies of various documents in the RO's possession (the May 3 and May 7, 1999, VA examination reports, the August 11, 1998 statement from Joe Whatley, and the August 14, 1998 statement from Lenk Transportation, Inc.). It is unclear from the record whether the veteran has received these requested copies. In order to ensure full compliance with due process requirements, the RO should mail copies of the requested documents to the veteran, and inquire as to whether or not the veteran has any additional evidence to be submitted in connection with his claims on appeal. The Board also notes that additional evidence, to include medical records, was received at the Board in December 1999 without a waiver of RO consideration. The RO is instructed to review that evidence on remand. Additionally, a document dated in November 1999 from the veteran's representative of record, Kenneth B. Mason, Attorney at Law, is styled as a Motion to Withdraw as the veteran's representative. In that document, Mr. Mason indicated that he had conferred with the veteran in October 1999 regarding the merits of the case, and that the veteran would not object to his withdrawal from the case. Withdrawal of services by a representative is addressed in 38 C.F.R. 20.608 (1999). 38 C.F.R. 20.608 states, in pertinent part: (b) Withdrawal of services after certification of an appeal- -(1) Applicability. The restrictions on a representative's right to withdraw contained in this paragraph apply only to those cases in which the representative has previously agreed to act as representative in an appeal. In addition to express agreement, orally or in writing, such agreement shall be presumed if the representative makes an appearance in the case by acting on an appellant's behalf before the Board in any way after the appellant has designated the representative as such as provided in §§ 20.602 through 20.605 of this part. The preceding sentence notwithstanding, an appearance in an appeal solely to notify the Board that a designation of representation has not been accepted will not be presumed to constitute such consent. (2) Procedures. After the agency of original jurisdiction has certified an appeal to the Board of Veterans' Appeals, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion. Good cause for such purposes is the extended illness or incapacitation of an agent admitted to practice before the Department of Veterans Affairs, an attorney-at-law, or other individual representative; failure of the appellant to cooperate with proper preparation and presentation of the appeal; or other factors which make the continuation of representation impossible, impractical, or unethical. Such motions must be in writing and must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and the reason why withdrawal should be permitted. Such motions should not contain information which would violate privileged communications or which would otherwise be unethical to reveal. Such motions must be filed at the following address: Office of Counsel to the Chairman (01C), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The representative must mail a copy of the motion to the appellant, with a return receipt requested. The receipt, which must bear the signature of the appellant, must then be filed with the Board at the same address as proof of service of the motion. The appellant may file a response to the motion with the Board at the same address not later than 30 days following receipt of the copy of the motion. The appellant must mail a copy of any such response to the representative, with a return receipt requested. The receipt, which must bear the signature of the representative or an employee of the representative, must then be filed with the Board at the same address as proof of service of the response. Based upon the requirements outlined in 38 C.F.R. 20.608, the Board concludes that the veteran's attorney of record in this matter remains Kenneth B. Mason. Cf. Georgia State Bar Rule EC 2-32 (1997) (A decision by a lawyer to withdraw should be made only on the basis of compelling circumstances, and in a matter pending before a tribunal he must comply with the rules of the tribunal regarding withdrawal.) (emphasis added). Although the veteran's attorney may well have good cause to withdraw his services in this matter, they have not been identified, and the Board concludes that the procedural safeguards and procedures, as outlined in 38 C.F.R. 20.608, must be followed. Thus, if the veteran's attorney of record desires to withdraw his services in this matter, he should do so as directed in 38 C.F.R. 20.608 (1999). To ensure that the Department of Veterans Affairs (VA) has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should mail to the veteran copies of the documents requested in the veteran's July 23, 1999, fax memorandum. The RO should also inform the veteran that while this case is in remand status, the veteran and his representative may submit additional evidence and/or argument on the appealed issues. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). 2. The veteran should be requested to submit all records which may be in his possession pertaining to any agreement that Kenneth B. Mason, Attorney, withdraw as his representative of record. If no such agreement can be documented, and the veteran's attorney of record desires to withdraw his services in this matter, Mr. Mason should proceed as directed in 38 C.F.R. 20.608 (1999). 3. Upon completion of the above, the RO should readjudicate the appellant's claims to an increased disability evaluation for residuals of removal of a pterygium of the right eye and for a total disability evaluation for compensation purposes based upon individual unemployability. In so doing, the RO should consider all evidence received since the last supplemental statement of the case, including the additional medical evidence received at the Board in December 1999 without a waiver of RO consideration. 4. Following completion of the above actions, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 38 C.F.R. § 4.2 (1998); Stegall v. West, 11 Vet. App. 268 (1998). If the benefit remains denied, the appellant and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, and in accordance with the current appellate procedures, the claims folder should be returned to the Board for completion of appellate review. The appellant need take no action until 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. BETTINA S. CALLAWAY 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).