Citation Nr: 1320256 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 10-01 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disorder with a history of myocardial infarction. REPRESENTATION Appellant represented by: Lauren Murphy, Agent ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from December 1988 to December 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In the April 2009 rating decision, the RO reopened and denied the previously denied claim of service connection for a heart disorder with a history of myocardial infarction. However, the RO's actions in reopening the claim do not bind the Board. The Board must initially determine whether the Veteran has presented new and material evidence sufficient to reopen that previously denied claim. See Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The Board has therefore listed the issue on the title page accordingly. 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 Virtual VA paperless claims processing system reflects that additional records have been added to the appeal since the last supplemental statement of the case (SSOC) dated December 2012. These records include VA medical records from November 2008 to January 2013, which are relevant to the Veteran's current claim. The record does not contain a waiver of RO jurisdiction with regard to these records, and on remand, all evidence received since the December 2012 SSOC must be considered. See 38 C.F.R. §§ 19.37, 20.1304 (2012). The RO must also clarify the Veteran's representation in this matter. The Veteran selected the Disabled American Veterans (DAV) as his accredited representative for this appeal, as a copy of the rating decision on appeal was sent to DAV, and DAV submitted the notice of disagreement (NOD) on the Veteran's behalf. See the June 2009 NOD. However, in December 2010, the Veteran informed the RO that he had selected new representation for his current appeal and future claims. See the December 2010 personal statement. A VA Form 21-22a, Appointment of Individual as Claimant's Representative, was also submitted in December 2010, reflecting the current representation. In the December 2010 personal statement, the Veteran requested that a complete copy of his claims folder be sent to his new representative for review. The Board notes that this selection occurred prior to the claim being presented before the undersigned Veterans Law Judge and prior to the issuance of any determinative action by the Board. Although the Veteran requested that a copy of his claims file be sent to his current representative, there is no indication that this action has been completed by the RO. Moreover, the Veteran's agent has not been given the opportunity to present argument in support of the Veteran's claim. The Veteran has a right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person. See 38 C.F.R. § 20.600 (2012). In order to comply with due process of law, the Veteran's representative must be provided the opportunity to review the record and offer written argument on the Veteran's behalf. See generally 38 C.F.R. § 20.600 (2012). Because the Veteran's agent has not been given an opportunity to review the Veteran's file and to submit argument in support of the Veteran's claim, the claim must be returned to the RO/AMC so that this may be accomplished. Moreover, the claim must be returned to the RO/AMC so that a copy of the claims file can be forwarded to the agent, as was initially requested by the Veteran. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran's appointed representative an opportunity to review the Veteran's claims folder, and to submit a VA Form 646, Statement of Accredited Representative in Appealed Case, or any other evidence or argument in support of the Veteran's claim. All efforts made should be documented and incorporated into the claims file. Notification of this action should be sent to the Veteran and documented in the claims file. 2. Readjudicate the claim for whether new and material evidence has been received to reopen a claim of entitlement to service connection for a heart disorder with a history of myocardial infarction. If the benefit sought on appeal remains denied, the Veteran and his agent should be furnished with a SSOC and given the opportunity to respond thereto. The SSOC must contain notice of all relevant actions taken on the claim, TO INCLUDE A SUMMARY OF THE EVIDENCE ADDED TO THE CLAIMS FILE SINCE THE DECEMBER 2012 SUPPLEMENTAL STATEMENT OF THE CASE (SSOC) and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need to take no action unless otherwise notified. 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). _________________________________________________ Vito A. Clementi 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).