Citation Nr: 1320130 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-17 613 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left partial maxillectomy, left orbital floor reconstruction, and medial canthal ligament repair surgery, hospitalization following such surgery, and subsequent radiation therapy for malignant neoplasm in the left maxillary/paranasal sinuses provided by VA, to include epiphora, anosmia, dysguesia, diplopia of the left eye, right eye bulging, glaucoma associated with anomalies of the iris, epistaxis, nasal obstruction, and left facial numbness at V2 (referred to hereinafter as "residuals"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from September 1952 to September 1972. This included service in Korea from June 1969 to June 1970 and in the Republic of Vietnam (RVN) from February 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision from the New Orleans, Louisiana, VA Regional Office (RO), which denied the Veteran's claim of entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left partial maxillectomy, left orbital floor reconstruction, and medial canthal ligament repair surgery, hospitalization following such surgery, and subsequent radiation therapy for malignant neoplasm in the left maxillary/paranasal sinuses provided by VA. In September 2010 and February 2012, the Board remanded the claim for further development. Following the February 2012 remand, the denial of the claim for § 1151 disability compensation was confirmed in an October 2012 rating decision/supplemental statement of the case. The case was returned to the Board in October 2012 and the Veteran continued pursuing his appeal. In November 2012, the Board requested an independent medical expert (IME) opinion to address pertinent medical questions raised by the § 1151 claim at issue. The requested IME opinion was provided in March 2013. Please note this appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). For the reasons discussed below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant and his representative if any further action is required on their part. REMAND Following readjudication at the RO level in an October 2012 supplemental statement of the case (SSOC) and confirmation of the denial of the § 1151 claim at issue, the current appeal was returned to the custody of the Board later that same month. Thereafter, in March 2013, the Veteran submitted additional clinical evidence into the record, which included a statement dated in October 2010 from the Veteran's private dentist, Christopher R. Culliton, D.D.S., M.S. In this statement, Dr. Culliton presented a diagnostic opinion as to the status of the Veteran's dental condition and health prior to and after surgery performed by VA for treatment of left maxillary/paranasal sinus cancer in 2006. Dr. Culliton's medical statement was not previously considered by VA and was submitted directly to the Board. It was accompanied by correspondence from the Veteran, in which he expressly refused to waive his right to have the submitted evidence considered in the first instance by the agency of original jurisdiction. He requested that his case on appeal be remanded back to the RO for first review of the additional evidence submitted. The March 2013 correspondence expresses the Veteran's current wish as to how he wants his appeal to be procedurally handled. Therefore, in the absence of a waiver from the Veteran/appellant that permits the Board to consider the evidence submitted, the Board is now obligated to comply with the laws and regulations governing the claimant's right to appellate due process and to ensure that his claim is not prejudiced. See 38 C.F.R. § 20.1304(c) (2012); Bernard v. Brown, 4 Vet. App. 384 (1993). Therefore, the Board must remand the current appeal directly to the RO so that it may consider the newly submitted evidence in the first instance, readjudicate the Veteran's § 1151 claim accordingly, and thereafter furnish the Veteran and his representative a supplemental statement of the case and provide them with opportunity to respond before returning the appeal to the Board. 38 C.F.R. §§ 19.9, 19.31 (2012). Accordingly, the case is REMANDED to the RO/AMC for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should readjudicate the Veteran's claim of entitlement to disability compensation under 38 U.S.C. § 1151 for residuals of left partial maxillectomy, left orbital floor reconstruction, and medial canthal ligament repair surgery, hospitalization following such surgery, and subsequent radiation therapy for malignant neoplasm in the left maxillary/paranasal sinuses provided by VA, to include epiphora, anosmia, dysguesia, diplopia of the left eye, right eye bulging, glaucoma associated with anomalies of the iris, epistaxis, nasal obstruction, and left facial numbness at V2. 2. If the maximum benefit sought on appeal with respect to § 1151 claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case which takes into account all pertinent evidence received by VA since the October 2012 supplemental statement of the case. The Veteran/appellant and his representative should thereafter be afforded a reasonable opportunity to respond before the record is returned to the Board for further appellate review, if appropriate. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ JONATHAN B. KRAMER 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).