Citation Nr: 1336593 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 11-02 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a cold injury, left foot. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Michel, Associate Counsel INTRODUCTION The Veteran had active service from March 1953 to March 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied reopening the claim for the benefit sought on appeal. In connection with his appeal, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in April 2012. A transcript of this hearing is associated with the claims file. In June 2012, the Board issued a decision denying the Veteran's claim to reopen. The Veteran appealed the denied claim to the Court of Appeals for Veterans Claims (Court). In June 2013, the Court granted a Joint Motion for Remand (JMR) filed by the parties. The appeal has now returned to the Board for further action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). 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 June 2013 JMR found deficiencies in the June 2012 Board decision in that it failed to provide an adequate statement of reasons or bases in support of its finding that new and material evidence had not been submitted, because it did not make any findings regarding whether the new documents or photographs submitted by the Appellant in July 2010. The Board notes, however, that the June 2013 JMR was predicated, in pertinent part, on the Court's decision in Bryant v. Shinseki, 23 Vet. App. 488, 498 (2010), holding that a hearing officer has a duty to suggest the submission of evidence on an issue material to substantiating the claim when the record is missing that evidence. In accordance with the June 2013 JMR, the Board finds that a remand of the claim of whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a cold injury, left foot is required. The parties agreed in the JMR that the hearing officer had not discharged his duties in accordance with 38 C.F.R. § 3.103(c) (2) during the April 2012 hearing. Before the submission of the JMR or issuance of the Court Order, VA amended the hearing provisions of 38 C.F.R. § 3.103 clarifying that the Court's holding in Bryant does not apply to hearings before the Board such as the April 2012 hearing in question. 38 C.F.R. § 3.103(c) (2) (2012); 76 Fed. Reg. 52,572 -52,574 (August 23, 2011) (effective August 23, 2011). However, in compliance with the Court Order, the Board finds that upon remand, the Veteran should be contacted and informed that the issue on appeal is whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a cold injury, left foot, and that he should submit any evidence in his possession establishing a nexus between the residuals of a cold injury, left foot, on appeal and service, to include service in Korea. Specifically, he should be advised that the claim was previously denied in a July 2002 rating decision on the basis that there was no competent evidence that related current residuals of a left foot cold injury, and that it was further denied in a February 2003 rating decision on the basis that new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for residuals of a left foot cold injury. Consequently, the Veteran should be further advised that he should submit competent evidence that his residuals of a cold injury, left foot, are related to service. If he does not possess such evidence, he is free to identify any health care providers who may have such records to allow VA to obtain the evidence on his behalf. Accordingly, the case is REMANDED 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) (2013). Expedited handling is requested.) 1. Send the Veteran, and his representative, a letter that informs him that the issue on appeal is whether new and material evidence has been received to reopen a claim for entitlement to service connection for residuals of a cold injury, left foot, and that he may submit evidence that the disability manifested during service or is related to his service. The Veteran should also be notified that he may submit evidence of a link between the disability and active duty service. Specifically, the Veteran should be advised that the claim was previously denied in a July 2002 rating decision on the basis that there was no competent evidence that related current residuals of a left foot cold injury, and that it was further denied in a February 2003 rating decision on the basis that new and material evidence had been received to reopen a previously denied claim of entitlement to service connection for residuals of a left foot cold injury. Consequently, the Veteran should be further advised that he should submit competent evidence that his residuals of a cold injury, left foot, are related to service. If he does not possess such evidence, he is free to identify any health care providers who may have such records to allow VA to obtain the evidence on his behalf. 2. Then, readjudicate the issue on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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). _________________________________________________ MICHAEL A. PAPPAS 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) (2013).