Citation Nr: 0106547 Decision Date: 03/06/01 Archive Date: 03/16/01 DOCKET NO. 96-00 023A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable rating for residuals of the removal of benign tumors of the left arm. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Crawford, Counsel INTRODUCTION The veteran had active service from April 1979 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1995 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Cleveland, Ohio. In November 1996, the RO denied the claims of entitlement to secondary service connection for lumbar and cervical spine disabilities and entitlement to a total rating based on individual unemployability. The RO erroneously issued to the veteran a supplemental statement of the case (SSOC) on these three issues. The veteran had not filed a timely notice of disagreement with that rating determination. The June 1998 VA Form 646 is the only correspondence received that can be construed as a substantive appeal with the 1996 rating action, but this document was received more than a year after the SSOC. See generally 38 C.F.R. §§ 20.200, 20.201, 20.302 (2000). The RO has certified these issues on appeal as inextricably intertwined with the increased rating issue on appeal. Nevertheless, without a substantive appeal, even issues which are "inextricably intertwined" are not properly on appeal to the Board. The Board does not offer an opinion herein as to whether, in fact, these issues actually are inextricably intertwined. In the February 2001 informal brief, the veteran's representative argues that the aforementioned matters are ripe for appellate review and are on appeal before the Board. Given that, the Board finds that the issues of whether new and material evidence has been submitted to reopen the claims of entitlement to service connection for cervical and lumbar spine disabilities and entitlement to a total rating based on individual unemployability have been raised. The representative also raised the issue of entitlement to service connection for depression. The matters are referred to the RO for action deemed appropriate. REMAND In February 2001, the veteran, via his representative, submitted additional evidence to substantiate his claim for an increased rating for residuals of the removal of benign tumors of the left arm. The veteran did not waive the right to initial RO review of this evidence. See also February 2001 Informal Brief Presentation. Therefore, the RO must be afforded the opportunity to review such evidence. 38 C.F.R. § 20.1304(c) (2000). In his January 1996 VA Form 9, the veteran requested a hearing before a member of the Board sitting at the RO. Nevertheless, the claims folder was sent to the Board without affording him the opportunity for such a hearing. Thereafter, the Board scheduled him for a hearing in Washington, D.C. in February 2001. He withdrew his request for this hearing. Since he never, in fact, requested a hearing before the Board in Washington, D.C., but instead had requested a hearing before the Board sitting at the RO, he should be contacted to clarify if he still desires such a hearing. Also, there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law redefines the obligations of the VA with respect to the duty to assist. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Because of the change in the law brought about by the Veterans Claims Assistance Act of 2000, a remand in this case is required for compliance with the notice and duty to assist provisions contained in the new law. See Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, §§ 3-4, 114 Stat. 2096, 2096-99 (2000) (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107). In addition, because the RO has not yet considered whether any additional notification or development action is required under the Veterans Claims Assistance Act of 2000, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Accordingly, this case is REMANDED for the following: 1. The RO should appropriately contact the veteran and request that he provide the names and addresses of all VA and non- VA providers of medical treatment of the residuals of the removal of benign tumors of the left arm since August 1998. After obtaining any necessary authorization, the RO should contact the identified providers and request a copy of all reports of treatment of the veteran, not already of record. The medical providers contacted should include the VA Medical Clinics in Brecksville and Cleveland, Ohio. The veteran should also be appropriately contacted and asked to clarify whether he wants a hearing before a member of the Board sitting at the RO. If he does, such a hearing should be appropriately scheduled. 2. The RO should request from the Social Security Administration copies of the decision pertinent to the veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. The RO should schedule the veteran for orthopedic and neurologic examinations to determine the residuals of his service-connected removal of benign tumors of the left arm. The claims folder must be made available to the examiners for use in the study of the veteran's case. The examination reports must specifically state if the claims folder was reviewed. All indicated tests and studies, should be performed, and any indicated consultations should be scheduled. The orthopedic examiner should test joint motion against varying resistance. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The examiner is requested to identify any objective evidence of pain, all functional impairment due to pain, and to provide an opinion concerning the degree of any pain. The physician should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare- ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. If this is not feasible, the physician should so state. The examiners are also requested to furnish a full description of the effects of the disability on the veteran's ordinary activity, including the impact of the disability on the veteran's ability to work. All opinions must be supported by a complete rationale and reconciled with the February 2001 medical opinion by Craig N. Bash, M.D. 4. The RO should also schedule the veteran for a VA skin examination. The veteran's claims folder should be made available to the examiner. The examination report must specifically state if the claims folder was reviewed. All indicated tests and studies should be accomplished. The examiner should comment on whether the scars on the left arm are objectively tender on palpation, disfiguring or attached to underlying structure, or associated with any functional impairment. The examiner should note any complaint of pain in relation to the scars and to the degree to which, if present, the pain could limit functional ability. 5. The RO must review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475 is completed. In particular, the RO should ensure that the new notification requirements and development procedures contained in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107) are fully complied with and satisfied. For further guidance on the processing of this case in light of the changes in the law, the RO should refer to VBA Fast Letter 00-87 (November 17, 2000), as well as any pertinent formal or informal guidance that is subsequently provided by the Department, including, among others things, final regulations and General Counsel precedent opinions. Any binding and pertinent court decisions that are subsequently issued also should be considered. 6. If the benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The veteran need take no action until he is otherwise notified. The veteran is advised that a failure to report for the scheduled examinations without good cause could result in the denial of his claims. 38 C.F.R. § 3.655 (2000). The veteran is also advised that he has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). BARBARA B. COPELAND Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), 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) (2000).