Citation Nr: 9810664 Decision Date: 04/07/98 Archive Date: 04/23/98 DOCKET NO. 96-37 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for plantar warts. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD James J. Dunphy INTRODUCTION The veteran served on active duty from September 1979 to August 1983. In a January 1998 rating action, service connection was denied for nicotine dependence, elevated triglycerides, and hearing loss. At the time that the case was forwarded to the Board of Veterans’ Appeals (Board) for appellate review, the veteran had not submitted a Notice of Disagreement (NOD) for these claims, nor had the one-year suspense for such communications expired. Hence, the Board concludes that no appellate action on these issues is warranted. REMAND The veteran submitted a claim for entitlement to service connection for plantar warts in November 1995. In a December 1995 rating action, the Department of Veterans Affairs (VA) Regional Office (RO) concluded that the veteran had not submitted a well grounded claim with regard to the issue of entitlement to service connection for plantar warts. The veteran was notified of this adverse determination and of his appellate rights by a VA letter dated in January 1996. In a January 1996 letter, the veteran indicated that he was writing the VA because the “decision on my claim for the Plantar Warts was denied.” He further stated that he was “normally very accepting of decisions, but I will now (sic) allow what the Navy did to me and my family be put in the context of ‘There is no proof you suffered any damage while in the military.’” The RO, in a February 1996 letter, characterized the veteran’s letter as a request to reconsider compensation benefits for plantar warts, and requested additional information. Implicit in this letter was that the January 1996 letter was not considered to be an NOD. In March 1996, the veteran furnished a copy of the January 1996 letter, slightly amended, along with a report of private medical treatment. This was apparently characterized by the RO as an attempt to reopen a final decision, as, in a March 1996 rating action, the RO concluded that the veteran had not presented new and material evidence to reopen a claim for service connection for plantar warts. A July 1996 letter from the veteran was accepted as an NOD from the finding that new and material evidence had not been submitted to reopen a claim for entitlement to service connection for plantar warts. A review of these communications indicates that the January 1996 or March 1996 letters could have been inferred to be his NOD. However, the RO concluded that the July 1996 communication was formally accepted as the NOD. Under the provisions of 38 U.S.C.A. § 7105 (b)(1), the veteran has a period of one year from the mailing of notice of denial to provide an NOD. Thus, the veteran had until January 1997 to submit his NOD, and, even if no communication was received which could have qualified as an NOD until July 1996, this was still within the statutory one-year period. Hence, there was no final decision from which the veteran had to submit new and material evidence. When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the appellant has been given adequate notice to respond and, if not, whether the appellant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). Here, both the statement of the case (SOC) and supplemental statement of the case (SSOC) were based on the issue of whether the veteran has submitted new and material evidence to reopen his claim for service connection. The Board therefore concludes the veteran would be prejudiced if the Board considered the case solely on the merits. The Board further notes that on his substantive appeal (VA Form 1-9), dated in August 1996, the veteran indicated that he did not desire a hearing. On a subsequent VA Form 1-9, dated in September 1996, the veteran indicated that he did desire a hearing. The RO did not take any action to resolve these two requests. As the case must otherwise be remanded, the Board concludes it would be appropriate to determine if the veteran desires a personal hearing. Accordingly, the case is remanded to the RO for the following actions: 1. The RO should contact the veteran to determine if he desires a personal hearing on his case, and the type of hearing he so desires. If the response is affirmative, the veteran should be scheduled for a personal hearing. 2. Upon completion of this hearing, or upon either a negative response from the veteran or an appropriate period of time without a response from the veteran, the RO should again consider the issue of entitlement to service connection for plantar warts. In so doing, the RO should consider the case on the merits, and not whether the veteran has submitted new and material evidence to reopen a claim for entitlement to service connection for plantar warts. When the requested development is completed, if the benefit sought is not granted, the veteran and representative should be provided with an appropriate supplemental statement of the case. They should also be given a reasonable period to respond. The case should then be returned to the Board for further appellate consideration. The purposes of this remand are to obtain additional information and to assist the veteran in the development of the claim. No inference should be drawn regarding the merits of the claim, and no action is required of the veteran until further notified. 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 Veterans Appeals 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 Supp. 1997) (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. Deborah W. Singleton Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1996). - 2 -