Citation Nr: 1315033 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 04-07 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Whether new and material evidence has been received to reopen the Veteran's claim of entitlement to service connection for Type II diabetes mellitus claimed as the result of herbicide exposure, and if so, whether service connection is warranted. 2. Entitlement to service connection for a pulmonary disorder to include chronic obstructive pulmonary disease (COPD) claimed as the result of exposure to asbestos, silica, and other chemicals. REPRESENTATION Veteran represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active service from January 1965 to April 1972. This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2002 rating decision of the North Little Rock, Arkansas, Regional Office (RO) which, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for COPD. In June 2005, the Board, in pertinent part, determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for a lung disorder claimed as COPD. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). The Parties' thereafter submitted a Joint Motion for Partial Remand which asserted that the Board had erroneously framed the issue on appeal as whether new and material evidence had been received to reopen the Veteran's claim for service connection for a lung disorder claimed as COPD and requested that the Board be directed to consider the issue of service connection on the merits. In June 2009, the Court granted the Parties' Joint Motion for Partial Remand; vacated that portion of the June 2005 Board decision which determined that new and material evidence had not been received to reopen the Veteran's claim of entitlement to service connection for a lung disorder; and remanded the Veteran's claim to the Board for additional action. In October 2009, the RO tacitly determined that new and material evidence had been received to reopen the Veteran's claim of service connection for Type II diabetes mellitus claimed as the result of herbicide exposure and denied the claim on the merits. In February 2010, the Board remanded the issue of the Veteran's entitlement to service connection for a lung disorder to include COPD to the RO for additional action. The Board has reframed the issue of service connection for a lung disorder to include COPD as entitlement to service connection for a pulmonary disorder to include COPD claimed as the result of exposure to asbestos, silica, and other chemicals in accordance with the Court's decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. REMAND In April and May 2012, additional relevant VA clinical documentation was entered into the Veteran's "Virtual VA" file. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has invalidated the regulations which empowered the Board to consider additional evidence without prior RO review in the absence of a waiver of such review by the Veteran. Disabled American Veterans vs. Sec'y of Veterans Affairs, 327 F.3d 1339, 1348(Fed. Cir. 2003). In March 2013, the Board informed the Veteran that he could waive initial RO review of the newly submitted evidence. In March 2013, the Veteran requested that his appeal be remanded to the RO for consideration of the additional evidence. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's claims. If the benefits sought on appeal remains denied, the Veteran and his agent should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. § 5109B, 7112 (West 2002). _________________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2012).