Citation Nr: 0812650 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 95-21 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the shoulders. 2. Entitlement to service connection for degenerative joint disease of the cervical spine. 3. Entitlement to service connection for soft tissue sarcoma. 4. Entitlement to service connection for dyshidrosis of the hands and feet. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney at Law ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The veteran served on active duty from June 1965 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). These issues were before the Board in March 2005. The issues of entitlement to service connection for soft tissue sarcoma and dyshidrosis of the hands and feet were remanded for further development. The RO issued a supplemental statement of the case addressing these two issues in May 2007. The issues of entitlement to service connection for degenerative joint disease of the shoulders and degenerative joint disease of the cervical spine were denied by the Board in March 2005. The Board decision was appealed, and in September 2007, the United States Court of Appeals for Veterans Claims (Court) vacated the Board's decision. As noted in the March 2005 decision and remand, the Board notes that the Attorney at Law listed on the title page of this decision as the veteran's representative has limited his representation to the issues of service connection for degenerative joint disease of the shoulders and degenerative joint disease of the cervical spine. The veteran is not represented on the issues of service connection for dyshidrosis of the hands and feet and soft tissue sarcoma. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Court vacated the Board's March 2005 decision on the issues of entitlement to service connection for degenerative joint disease of the shoulders and degenerative joint disease of the cervical spine, because it found that the VCAA notice provided to the veteran was inadequate and that the Board had failed to rebut the presumption that the error was prejudicial to the veteran. The RO should issue proper VCAA notice that specifically addresses the issues of entitlement to service connection for degenerative joint disease of the shoulders and degenerative joint disease of the cervical spine. In March 2005, the Board remanded the issues of entitlement to service connection for soft tissue sarcoma and dyshidrosis of the hands and feet. The remanded included an instruction to furnish the veteran with an appropriate VCAA notice letter with regard to these issues. The RO's May 2007 supplemental statement of the case states that "A letter dated May, 3, 2005, was sent to you notifying you of what the evidence must show to establish entitlement and requesting that you tell us of any medical evidence that you felt was pertinent to your claim." The only VCAA notice letter is dated May 4, 2005, and it is limited to the issue of entitlement to an increased rating for diabetes mellitus, type II (an issue over which the Board does not have jurisdiction). The RO did not provide adequate VCAA notice to the veteran specifically regarding the issues of entitlement to service connection for soft tissue sarcoma and dyshidrosis of the hands and feet. The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. The RO should issue proper VCAA notice that specifically addresses the issues of entitlement to service connection for soft tissue sarcoma and dyshidrosis of the hands and feet. Finally, the Board notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, slip op. at 14. The new requirements do not constitute the basis of this remand. However, since these issues need to be remanded on other grounds, the Board finds that the RO should comply with the most recent Court analysis. Accordingly, the case is REMANDED for the following actions: 1. The RO should furnish the veteran with an appropriate VCAA notice letter with regard to the issues of entitlement to service connection for degenerative joint disease of the shoulders and degenerative joint disease of the cervical spine. The RO should ensure that the veteran is furnished proper notice in compliance with 38 C.F.R. § 3.159(b)(1), and the Dingess/Hartman decision, including notice of (a) the information and evidence not of record that is necessary to substantiate his claim, (b) the information and evidence that VA will seek to provide, and (c) the information and evidence that the veteran is expected to provide, to include the need to submit all pertinent evidence in his possession. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). 2. The RO should furnish the veteran with an appropriate VCAA notice letter with regard to the issues of service connection for dyshidrosis of the hands and feet and for soft tissue sarcoma. The RO should ensure that the veteran is furnished proper notice in compliance with 38 C.F.R. § 3.159(b)(1), and the Dingess/Hartman decision, including notice of (a) the information and evidence not of record that is necessary to substantiate his claim, (b) the information and evidence that VA will seek to provide, and (c) the information and evidence that the veteran is expected to provide, to include the need to submit all pertinent evidence in his possession. See Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002). 3. After completion of the above, the RO should review the expanded record and determine if the benefits sought can be granted. If any of the claims remain denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be remanded to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ ALAN S. PEEVY 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) (2007).