Citation Nr: 0327174 Decision Date: 10/10/03 Archive Date: 10/20/03 DOCKET NO. 99-13 688A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased rating in excess of 40 percent for protein S deficiency with bilateral chronic deep vein thrombosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel REMAND On August 5, 2002, 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. Make arrangements with the appropriate VA medical facility for the veteran to be afforded the following examinations: a) An audiological examination to determine whether the veteran has tinnitus. The examiner should be informed that a VA examiner opined in a September 1991 audiologic report that the veteran's tinnitus was due to exposure to acoustic trauma during service. The examiner is requested to render an opinion as to whether is likely, unlikely or at least as likely as not that the etiology of any tinnitus the examiner may determine to be present was caused by exposure to acoustic trauma during service. Send the claims folder to the examiner for review. b) The veteran should be afforded a VA vascular examination to determine the nature and severity of his service- connected protein S deficiency with chronic deep vein thrombosis of each lower extremity. The claims folder should be made available to the examiner for review before the examination. All symptoms associated with the protein S deficiency with chronic deep vein thrombosis of each lower extremity should be set forth in the examination report. Send the claims folder to the examiner for review. The examiner is requested to render an opinion as to whether the veteran's service-connected protein S deficiency with chronic deep vein thrombosis of each lower extremity is manifested by: ? persistent swelling subsiding only very slightly and incompletely with recumbency elevation with pigmentation cyanosis, eczema, or ulceration; and/or ? massive board-like swelling with severe and constant pain at rest; and/or ? persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration, and/or massive board-like edema with constant pain at rest. 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).