Citation Nr: 1317133	
Decision Date: 05/24/13    Archive Date: 05/31/13

DOCKET NO.  04-38 175A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a lower back disability, status post-operative.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

The Veteran had active service from August 1961 to June 1962.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen the Veteran's claim.  Jurisdiction over the Veteran's claim has remained with the RO in Roanoke, Virginia.

The Board remanded this case for further development in November 2006, July 2009, and May 2011.

The Veteran's claim was originally processed under the new and material evidence legal standard.  The Veteran's service personnel records were associated with the claims file in October 2003.  These records reflect the Veteran's participation in Basic Airborne training for three weeks in February 1962.  At the time they were received, 38 C.F.R. § 3.156(c) provided that if new and material evidence consisting of service department records was received after an otherwise final decision, the decision would be reconsidered.  38 C.F.R. § 3.156(c) (2006).  As the Veteran has alleged that his back condition was the result of an injury he sustained during Basis Airborne training, the personnel records are considered new and material; accordingly, the claim is reconsidered and adjudicated on a de novo basis.  

In addition to the paper claims file, the Veteran has a Virtual VA paperless claims file associated with his appeal.  The Board has reviewed the documents in the Virtual file, and they are duplicative of those in the paper file.

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

This appeal has not been adjudicated on the merits by the agency of original jurisdiction (AOJ).  The Board is essentially precluded from adjudicating a claim in the first instance on a basis that has not been considered by an AOJ.  Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006).  The United States Court of Appeals for Veterans Claims has cast doubt on its previous precedent that held the Board could adjudicate a claim on the merits in the first instance.  Gardner v. Shinseki, 22 Vet. App. 415, 418, footnote 2 (2009).

Accordingly, this case must be REMANDED for the following:

1.  The AOJ should adjudicate the Veteran's claim and reconsider the decisions that had previously denied the claim on the merits in accordance with 38 C.F.R. § 3.156(c) (2006 & 2012).

2.  If the benefits sought on appeal is not granted, the AOJ should issue a supplemental statement of the case, before returning the case to the Board, if otherwise in order.

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. 2012).


____________________________________________
Mark D. Hindin
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) (2012).