Citation Nr: 9913244 Decision Date: 05/14/99 Archive Date: 05/21/99 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, and onychomycosis of both feet, 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 while the regional office (RO) has characterized the veteran's February 1997 application to reopen as relating to the claim for service connection for tinea pedis, epidermophytosis, and onychomycosis of both feet, the Board finds the RO's rating decision in September 1997 indicated that the application to reopen pertained to both the original rating decision in March 1980 and to the Board's affirmance of this decision in July 1983, each of which clearly addressed both skin and lymph node disorders. Consequently, the Board has identified the issue on appeal as whether new and material evidence has been submitted to reopen a claim for service connection for all currently diagnosed skin and lymph node disorders, claimed as residuals of Agent Orange exposure. REMAND While this case was in appellate status, the United States Court for the Federal Circuit entered a decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) concerning the definition of the term "new and material evidence" found in 38 U.S.C.A. § 5108 (West 1991). In that determination, the Court of Appeals for the Federal Circuit held that the Court in Colvin v. Derwinski, 1 Vet. App. 171 (1991), had "overstepped its judicial authority" by adopting a Social Security case law definition of "new and material evidence," rather than deferring to the "reasonable interpretation of an ambiguous statutory term established by [Department of Veterans Affairs (VA)] regulation." Id. at 1357, 1364. The Court of Appeals for the Federal Circuit further held that the Court's "legal analysis may impose a higher burden on the veteran before a disallowed claim is reopened" as to what constitutes "material evidence" (Id. at 1357, 1360), and remanded the case for review under the Secretary's regulatory definition of "new and material evidence." In Hodge, the Court of Appeals for the Federal Circuit found that the definition of "new and material evidence" applied by the Court under Colvin was as follows: Evidence is 'new and material' if: (i) it was not of record at the time of the last final disallowance of the claim and is not merely cumulative of evidence of record; (ii) it is probative of the issue at hand; and if it is 'new' and 'probative' (iii) it is reasonably likely to change the outcome when viewed in light of all the evidence of record. Id. at 1359 [hereafter Colvin definition]. The Court of Appeals for the Federal Circuit found that part (iii) imposed a higher burden on claimant's than the VA regulatory definition because it: . . . specifically focuses on the likely impact the new evidence submitted with have on the outcome of the veteran's claim; it requires that 'there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome.' (citations omitted). Id. at 1363. Citing the regulatory history, the Court of Appeals of the Federal Circuit held that: . . . the purpose behind the [VA] definition was not to require the veteran to demonstrate that the new evidence would probably change the outcome of the claim; rather it emphasizes the importance of a complete record for evaluation of the veteran's claim. Id. at 1363. In this case, the Board notes that in the December 1997 statement of the case, the RO provided the claimant with the provisions of 38 C.F.R. § 3.156(a), however, in the reasons and basis section, the RO also quoted the Colvin standard and appeared to base its decision in part upon that standard. Although the RO also stated that the evidence added by the claimant was cumulative, the Board does not find the reasoning provided by the RO is sufficiently clear to permit a finding that the RO effectively ruled in the alternative under both Colvin and 38 C.F.R. § 3.156(a), and that consequently, remand of this matter is required for the correction of this procedural defect. 38 C.F.R. § 19.9 (1998). The Board further finds that based on the current record, it would be prejudicial for the Board to proceed with the adjudication of this claim. Bernard v. Brown, 4 Vet. App. 384 (1993). While this matter is in remand status, the Board further requests that the RO make an effort to obtain the complete VA clinical treatment records relating to the veteran's hospitalization at the Kansas City, Missouri VA Medical Center during the period of April 24, 1968 to April 29, 1968. The current record contains a summary of that hospitalization reflecting that the veteran had mild plantar dermatitis treated with Desenex. The complete records of that hospitalization may contain reports of medical history that would be pertinent as to whether the plantar dermatitis was related to service. Accordingly, to ensure that 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 RO for the following development: 1. The veteran should be permitted to submit additional argument or evidence in support of his claim. 2. The veteran should be asked to identify any sources of recent medical treatment for any skin or lymph node disorder. Any medical records other than those now on file pertaining to treatment for any skin or lymph node disorder should be obtained and associated with the claims folder, including but not limited to the complete VA clinical treatment records relating to the veteran's hospitalization at the Kansas City, Missouri VA Medical Center during the period of April 24, 1968 to April 29, 1968. 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, 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). 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. 1998) (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), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999). 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).