Citation Nr: 0020705 Decision Date: 08/07/00 Archive Date: 08/17/00 DOCKET NO. 98-00 023A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for skin and lymph node disorders to include tinea pedis, epidermophytosis, onychomycosis of both feet, and fibrous nodules, claimed as residuals of Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from February 1966 to November 1967. Initially, the Board of Veterans' Appeals (Board) notes that since the Board's remand of May 1999, additional medical evidence has been received by the regional office (RO), and an October 1999 rating decision denied service connection for fibrous nodules throughout the body, claimed as secondary to exposure to dioxins and irritants while in Vietnam. While the record does not yet reflect that the veteran has filed a notice of disagreement with the October 1999 decision, the Board observes that the October 1999 rating decision indicated that this claim was previously considered by a rating decision in January 1981 and a Board decision in July 1983. Consequently, the Board finds that the October 1999 rating decision was simply a readjudication of whether new and material evidence had been submitted to reopen the claim already developed on appeal, and has recharacterized the issue on appeal to include fibrous nodules. Although the Board has found that the October 1999 rating decision was, in effect, a readjudication of the issue remanded by the Board in May 1999, the Board does not find that this rating decision accomplished all of the action requested in the remand, and further finds that the record does not reflect a waiver of the RO's initial consideration of new relevant evidence received by the RO since October 1999. Thus, the Board finds that the remand of this case is again warranted. REMAND First, the Board notes that in its remand of May 1999, the Board specifically indicated that after the completion of the development requested in the Board's remand, the RO was to readjudicate the issue of whether or not new and material evidence has been submitted to reopen a claim for service connection for skin and lymph node disorders, to include tinea pedis, epidermophytosis, and onychomycosis of both feet, claimed as residuals of Agent Orange exposure, applying the definition of new and material evidence provided in 38 C.F.R. § 3.156(a) (1999). However, while the Board has determined that the RO's adjudication of the issue of entitlement to service connection for fibrous nodules, claimed as secondary to exposure to dioxins and irritants while in Vietnam, was, in effect, a readjudication of the issue already developed on appeal, the October 1999 rating decision did not apply the definition of new and material evidence provided in 38 C.F.R. § 3.156(a) as directed by the Board, and obviously did not apply this standard to the new evidence received by the RO subsequent to that rating decision. Moreover, even had the RO readjudicate the issue on appeal under the proper standard as requested by the Board, remand would still be required for the RO's initial consideration of the new pertinent evidence received by the RO subsequent to October 1999, as the record does not reflect a waiver on the part of the veteran of the RO's initial consideration of this evidence pursuant to 38 C.F.R. § 20.1304(c) (1999). Thus, the Board finds that it is constrained under multiple authorities to once again remand this matter. 38 C.F.R. § 20.1304(c); Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. 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). 2. The veteran should be asked to identify any sources of recent medical treatment for any skin or lymph node disorder, to include tinea pedis, epidermophytosis, onychomycosis, and fibrous nodules. Any medical records other than those now on file pertaining to treatment for any skin or lymph node disorder, to include tinea pedis, epidermophytosis, onychomycosis, and fibrous nodules, should be obtained and associated with the claims folder. 3. After the completion of any development deemed appropriate in addition to that requested above, the RO should readjudicate the issue of whether or not new and material evidence has been submitted to reopen a claim for service connection for skin and lymph node disorders to include tinea pedis, epidermophytosis, onychomycosis of both feet, and fibrous nodules, claimed as residuals of Agent Orange exposure, applying the definition of new and material evidence provided in 38 C.F.R. § 3.156(a), and specifically addressing the new pertinent evidence received by the RO since October 1999. 4. Thereafter, the RO should again review the record. If the benefits sought on appeal remain denied, the appellant and his representative should be furnished a supplemental statement of the case, including the provisions of 38 C.F.R. § 3.156(a), and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome as to this issue. 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 or by the United States Court of Appeals for Veterans Claims (previously known as the United States Court of Veterans Appeals prior to March 1, 1999, hereafter "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, Veterans' Benefits Administration (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. Richard B. Frank 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).