Citation Nr: 0321406	
Decision Date: 08/27/03    Archive Date: 09/02/03

DOCKET NO.  97-05 565	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUES

1.  Entitlement to service connection for bilateral knee 
disorders.

2.  Entitlement to service connection for a right wrist 
disorder.

3.  Entitlement to a compensable evaluation for a low back 
disorder.

4.  Entitlement to a compensable evaluation for a hearing 
loss.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. M. Barnard, Counsel


REMAND

On June 19, 2003, the Board of Veterans' Appeals (BVA or 
Board) ordered further development in your case.  Thereafter, 
your case was sent to the Board's Evidence Development Unit 
(EDU), to undertake the requested development.  

Prior to May 1, 2003, the Board's regulations provided that 
if further evidence, clarification of the evidence, 
correction of a procedural defect, or any other action was 
essential for a proper appellate decision, a Board Member or 
panel of Members could direct Board personnel to undertake 
the action essential for a proper appellate decision.  See 38 
C.F.R. § 19.9(a)(2) (2002).  

However, on May 1, 2003, the United States Court of Appeals 
for the Federal Circuit ("Federal Circuit") invalidated 38 
C.F.R. § 19.9(a)(2), in Disabled American Veterans v. 
Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) 
(hereinafter "DAV").  The Federal Circuit held that 38 
C.F.R. § 19.9(a)(2), in conjunction with the amended rule 
codified at 38 C.F.R. § 20.1304, was inconsistent with 38 
U.S.C. § 7104(a), because 38 C.F.R. § 19.9(a)(2), denies 
appellants "one review on appeal to the Secretary" when the 
Board considers additional evidence without having to remand 
the case to the agency of original jurisdiction (AOJ) for 
initial consideration, and without having to obtain the 
appellant's waiver.  

Following the Federal Circuit's decision in DAV, the General 
Counsel issued a precedential opinion, which concluded that 
DAV did not prohibit the Board from developing evidence in a 
case before it, provided that the Board does not adjudicate 
the claim based on any new evidence it obtains unless the 
claimant waives initial consideration of such evidence by 
first-tier adjudicators in the Veterans Benefits 
Administration (VBA).  VAOPGCPREC 1-03.  Based on this 
opinion, the Board continued, for a short time, to request 
development via the Board's EDU.  

Recently, in light of the Federal Circuit Court's decision 
and other policy considerations, the Department of Veterans 
Affairs (VA) determined that VBA would resume all development 
functions.  In other words, aside from the limited class of 
development functions that the Board is statutorily permitted 
to carry out, see 38 U.S.C.A. §§ 7107(b), 7109(a), all 
evidence development will be conducted at the regional office 
(RO) level.  

In the event that you appeared at a hearing before a Veterans 
Law Judge (VLJ) other than the VLJ signing this remand, be 
advised that if your case is returned to the Board, it will 
be reassigned to the VLJ who conducted your hearing.

Accordingly, this matter is REMANDED to the RO for the 
following:  

		
1.  Please have the claims folder 
forwarded to examiner who conducted the 
April 2003 orthopedic examination, Dr. 
Deandrade, in order to review the results 
of the requested bone scan, date April 
28, 2003, and for an addendum to the 
April 2003 examination report as he 
requested.

2.  After the development requested above 
has been completed to the extent 
possible, the RO should again review the 
record.  If any benefit sought on appeal 
remains denied, the appellant and 
representative, if any, should be 
furnished a supplemental statement of the 
case 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 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.



		
	R. GARVIN
	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).