Citation Nr: 0329542 Decision Date: 10/29/03 Archive Date: 11/05/03 DOCKET NO. 98-08 951A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased evaluation for residuals of Castleman's disease and plasmacytoma, currently evaluated as zero percent disabling. 2. Entitlement to an initial evaluation in excess of 30 percent for a neurological disorder encompassing dry mouth and numbness of the jaw. 3. Entitlement to an initial evaluation in excess of 20 percent for a neurological disorder encompassing limitation of motion of the neck. 4. Entitlement to an initial evaluation in excess of 10 percent for left long thoracic nerve damage. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. C. Mackenzie, Counsel INTRODUCTION The veteran served on active duty from May 1971 to December 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1997 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The veteran also initiated an appeal of an April 1998 denial of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) and was issued a Statement of the Case addressing this issue in August 2002. He has, however, provided no response to this issuance. Accordingly, the issue of entitlement to TDIU is not presently before the Board on appeal. In a July 2003 submission, the veteran indicated that he was seeking service connection for depression and necrosis of the jaw, to include as secondary to his service-connected Castleman's disease. This matter is referred to the RO for appropriate action. REMAND During the pendency of this appeal, substantial revisions have been made to the laws and regulations concerning VA's duties in developing a claim for a VA benefit. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was enacted. The VCAA redefines VA's obligations with respect to its duty to assist the claimant with the development of facts pertinent to a claim and includes an enhanced duty to notify the claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). The final rule implementing the VCAA was published on August 29, 2001. 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001) (codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2003)). These regulations, likewise, apply to any claim for benefits received by VA on or after November 9, 2000, as well as to any claim filed before that date but not decided by VA as of that date, with the exception of the amendments to 38 C.F.R. § 3.156(a) (relating to the definition of new and material evidence) and to the second sentence of § 3.159(c) and § 3.159(c)(4)(iii) (pertaining to VA assistance in the case of claims to reopen previously denied final claims), which apply to any application to reopen a finally decided claim received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). To date, however, the RO has neither notified the veteran of the VCAA and its implementing regulations nor described the specific provisions contained therein in a letter. See generally Quartuccio v. Principi, 16 Vet. App. 183 (2002) (VA's duties include providing a specific explanation of the type of evidence necessary to substantiate the veteran's claim and a description of which portion of that evidence (if any) was to be provided by the veteran and which portion VA would attempt to obtain on his behalf). Consequently, a disposition of the veteran's claims by the Board at the present time might well prove to be prejudicial to him. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Additionally, the Board observes that, in a June 2003 statement, a VA doctor noted the veteran's continued treatment concerning the jaw region at the Martinez, California, VA Medical Center (VAMC). Records from this facility, however, were last obtained by the RO in June 2002, and subsequent medical records should also be procured and added to the claims file. Accordingly, this case is REMANDED to the RO for the following action: 1. In a letter, the RO should notify the veteran of the new provisions of the VCAA, inform him of his right to submit new evidence, describe the type of evidence needed to substantiate his claims, and provide a discussion of the relative duties of VA and the veteran in obtaining relevant evidence. In issuing this letter, the RO must review the claims file and ensure that all VCAA notice obligations have been satisfied in accordance with the Federal Circuit's recent decision in Paralyzed Veterans of America v. Secretary of Veterans Affairs, No. 02-7007, -7008, -7009, -7010 (Fed. Cir. Sept. 22, 2003), as well as 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002). 2. Then, the RO should contact the Martinez, California, VAMC and request all records of treatment of the veteran dated on and after June 2002. All records obtained by the RO must be added to the claims file. If no such records are available, documentation to that effect must be added to the claims file. 3. Then, the RO should readjudicate the veteran's claims of entitlement to an increased evaluation for residuals of Castleman's disease and plasmacytoma; entitlement to an initial evaluation in excess of 30 percent for a neurological disorder encompassing dry mouth and numbness of the jaw; entitlement to an initial evaluation in excess of 20 percent for a neurological disorder encompassing limitation of motion of the neck; and entitlement to an initial evaluation in excess of 10 percent for left long thoracic nerve damage. If the determination of one or more of these claims remains less than fully favorable to the veteran, the RO should furnish him with a Supplemental Statement of the Case (with the provisions of 38 C.F.R. §§ 3.102 and 3.159 (2003) included) and afford him a reasonable period of time to respond before the case is returned to the Board. The purpose of this REMAND is to obtain additional development and to ensure full compliance with VA's due process requirements, and the Board intimates no opinion as to the ultimate merits of this appeal. See generally 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. 8.43 and 38.02. _________________________________________________ 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) (2003).