Citation Nr: 0322465 Decision Date: 09/03/03 Archive Date: 09/08/03 DOCKET NO. 99-06 161 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Propriety of severance of service connection for sensory motor peripheral neuropathy of the bilateral lower extremities as secondary to the left temporal pellet wound. 2. Entitlement to service connection for neurologic disorder (of all four extremities) secondary to medication prescribed for service-connected prostatitis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD B. P. Tierney, Counsel INTRODUCTION The veteran served on active duty from October 1958 to October 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. REMAND 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). On October 2002, the Board ordered further development and the claim was sent to the Board's Evidence Development Unit (EDU), to undertake the requested development. On May 1, 2003, however, 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. Pursuant to the October 2002 Development Memorandum, a VA examination of the veteran was performed in March 2003. The examiner at that time noted that in order to define the exact type and possible etiology of the peripheral neuropathy, the veteran would need to be evaluated by a peripheral neuropathy expert at a VA facility and if none is available, then a peripheral neuropathy trained expert outside the VA facility if one can be located. The VA's duty to assist the veteran in developing facts pertinent to his claim includes obtaining the specialist's opinion deemed necessary by the March 2003 VA examiner. Accordingly, this matter is REMANDED to the RO for the following: 1. 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). 2. The RO must make arrangements with the appropriate VA medical facility for the veteran to be afforded a neurological examination by a specialist in peripheral neuropathy for the purpose of determining the etiology of any peripheral neuropathy of the upper and lower extremities that may be present. The examiner must opine whether it is at least as likely as not that any peripheral neuropathy that is present is causally related to a gunshot wound to the head in 1959 and the surgery the veteran underwent for that injury. The examiner must also opine whether it is at least as likely as not that any peripheral neuropathy that is present is etiologically related to the veteran being treated with Flagyl (Metronidazole). (The veteran asserts that he was treated with Flagyl for his service-connected prostatitis) Send the claims folder to the examiner for review; the examiner must indicate that the relevant medical evidence in the claims file was reviewed. 3. 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. JAMES L. MARCH 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).