Citation Nr: 0313764 Decision Date: 06/24/03 Archive Date: 06/30/03 DOCKET NO. 97-06 858 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, as secondary to the service-connected right ankle disorder. 2. Entitlement to service connection for a right hip disorder, as secondary to the service-connected right ankle disorder. 3. Entitlement to service connection for heart disease, as secondary to nicotine dependence and cigarette smoking. 4. Entitlement to service connection for hypertension, as secondary to nicotine dependence and cigarette smoking. 5. Entitlement to service connection for emphysema, as secondary to nicotine dependence and cigarette smoking. 6. Entitlement to service connection for narcolepsy, cataplexy or a hypnogenic condition. 7. Evaluation of residuals of a right ankle injury, currently rated as 20 percent disabling. 8. Evaluation of a low back disorder, currently rated as 20 percent disabling. 9. Evaluation of bilateral pes planus, currently rated as 10 percent disabling. 10. Entitlement to compensation under 38 U.S.C.A. § 1151 for scar, status post removal sebaceous cyst, left posterior shoulder. 11. Entitlement to an effective date earlier than February 15, 1997 for a combined evaluation of 50 percent. 12. Entitlement to an effective date earlier than April 10, 2000 for a combined evaluation of 60 percent. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel REMAND The veteran's active military service extended from September 1958 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The case was previously before the Board in July 1999, when the issues of entitlement to service connection for heart disease, hypertension and emphysema as secondary to nicotine dependence and cigarette smoking were denied. The veteran appealed to the Court of Appeals for Veterans Claims (Court). In March 2001, the Court vacated and remanded those decisions. In September 2001, the Board Remanded the issues for medical examination and opinion. Review of the report shows that the requested opinion as to when nicotine dependence began was not rendered. The Court has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders and that VA has a duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Consequently, these issues must be returned to the RO for a medical opinion as requested in the Board's previous Remand. Similarly, VA medical records echo the veteran's complaints of narcolepsy. A private psychologist has diagnosed narcolepsy and linked it to service. However, our initial review of the file does not show that the veteran has been examined in this regard by VA. He should be scheduled for a neurologic examination to determine the diagnosis and origin of the claimed narcolepsy, cataplexy or hypnogenic condition. The veteran claims that the removal of a sebaceous cyst from his left posterior shoulder by VA left a tender and painful scar. The RO should obtain a complete copy of the operative report and other medical records associated with the cyst removal. The scar should be examined to determine its nature and manifestations. The examiner should review the operative report and other medical records. The examiner should describe the scar and express an opinion as to whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault, on the part of VA in providing care, or an event not reasonably foreseeable leading to any current surgical residuals. There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5102, 5103, 5103A, 5107 (West 2002)) became law. This law redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. Recently, the United States Court of Appeals for the Federal Circuit invalidated provisions of 38 C.F.R. § 19.9(a)(2), and (a)(2)(ii). See Disabled American Veterans v. Secretary of Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir. May 1, 2003). These provisions allowed the Board to develop evidence and take action to correct a missing or defective VCAA duty to notify letter as required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The Board no longer has authority to decide claims based on new evidence that it develops or obtains without obtaining a waiver. Likewise, the Board can no longer attempt to cure VCAA deficiencies. In this case, the Board attempted to cure VCAA notice deficiencies with a March 2003 letter. The veteran promptly responded later that month. However, as a result of the recent decision, the RO must notify the veteran of the applicable provisions of VCAA, including what evidence is needed to support the claim, what evidence VA will develop, and what evidence the veteran must furnish. The RO must then review any response the veteran may submit. If further development is indicated, it should be done by the RO. Because of the court decision in Disabled American Veterans v. Secretary of Veterans Affairs, supra, a remand in this case is required. Accordingly, this case is REMANDED for the following: 1. The RO should return the claims folder to the physician who performed the January 2002 VA examination, Dr. Radha Tatineni, and request that he render an opinion as to whether it is as likely as not that nicotine dependence began in service. If the doctor feels that nicotine dependence began in service, he should support his opinion by identifying the manifestations during service. According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorder, nicotine dependence may be described as a maladaptive pattern of nicotine use leading to clinically significant impairment or distress, as manifested by three or more of the following criteria occurring at any time in the same 12-month period: (1) tolerance, as manifested by the absence of nausea, dizziness, and other characteristic symptoms despite use of substantial amounts of nicotine or a diminished effect observed with continued use of the same amount of nicotine-containing products; (2) withdrawal, marked by appearance of four or more of the following signs within twenty-four hours of abrupt cessation of daily nicotine use or reduction in the amount of nicotine used: (a) dysphoric or depressed mood; (b) insomnia; (c) irritability, frustration, or anger; (d) anxiety; (e) difficulty concentrating; (f) restlessness; (g) decreased heart rate; or (h) increased appetite or weight gain; or by use of nicotine or a closely related substance to relieve or avoid withdrawal symptoms; (3) use of tobacco in larger amounts or over a longer period than was intended; (4) persistent desire or unsuccessful efforts to cut down or control nicotine use; (5) devotion of a great deal of time in activities necessary to obtain nicotine (e.g., driving long distances) or use nicotine (e.g., chain-smoking); (6) relinquishment or reduction of important social, occupational, or recreational activities because of nicotine use (e.g., giving up an activity which occurs in smoking- restricted areas); and (7) continued use of nicotine despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by nicotine. If Dr. Tatineni is not available, another doctor may provide the opinion. If the doctor cannot express an opinion without further examination, the veteran should be scheduled for any necessary examination, tests or studies. 2. The veteran should be scheduled for a neurologic examination to determine the diagnosis and origin of the claimed narcolepsy, cataplexy or a hypnogenic condition. The claims folder should be made available to the examiner for review prior to the examination. All indicated tests and studies should be accomplished. The examiner should express and explain an opinion as to the correct diagnosis for any narcolepsy, cataplexy or hypnogenic condition the veteran may have. If there is no such disability, the examiner should so state. The examiner should express and explain an opinion as to whether it is as likely as not that the claimed sleep disorder had its onset during the veteran's active service. 3. The RO should obtain a complete copy of the operative report and other medical records associated with the removal of a sebaceous cyst from the veteran's left posterior shoulder by VA. 4. After item 3 has been completed, the RO should schedule the veteran for an examination to determine the extent of any residuals of the removal of a sebaceous cyst from his left posterior shoulder by VA. The examiner should review the claims folder, operative report and other medical records. The examiner should describe the scar and express an opinion as to whether it is tender, or painful, or otherwise symptomatic. The examiner should express an opinion as to whether there was carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault, on the part of VA in providing care, or an event not reasonably foreseeable leading to any current surgical residuals. 5. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2002). Particularly, the RO must ensure that the veteran has been notified of the evidence that he must furnish. 6. Thereafter, the RO should readjudicate these claims. If any benefit sought on appeal remains denied, the veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Subsequently, 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. 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). 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 2002) (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. GARY L. GICK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2002).