Citation Nr: 9811542	
Decision Date: 04/14/98    Archive Date: 04/28/98

DOCKET NO.  94-04 772	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, 
Mississippi


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
multiple sclerosis.

2.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
psychiatric disability.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESSES AT HEARING ON APPEAL

Appellant and spouse

ATTORNEY FOR THE BOARD

C. Chaplin, Counsel


INTRODUCTION

The veteran had active service from August 1951 to August 
1953.

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision of August 1993, from 
the Jackson, Mississippi, regional office (RO) of the 
Department of Veterans Affairs (VA) which determined that new 
and material evidence had not been submitted sufficient to 
reopen the claims of entitlement to service connection for 
multiple sclerosis (MS) and a psychiatric disability.  

This case was remanded in March 1996 for a hearing to be 
scheduled.  The case has been returned to the Board and is 
ready for appellate review.

In October 1997, the veteran’s representative filed a motion 
requesting that the veteran be permitted to submit additional 
evidence as the veteran had been hospitalized for a heart 
attack and was canceling his request for a hearing.  His 
intent had been to submit the additional evidence, recently 
developed, at the personal hearing.  As the veteran has made 
a demonstration of good cause for the delay of the submission 
of the additional evidence, the Board accepts the additional 
evidence.  38 C.F.R. § 20.1304(b) (1997).  

Although the veteran, through his representative, includes 
the issue of “[n]ew and material evidence to reopen a claim 
for a back condition”, this issue is not before the Board on 
appeal as the veteran did not perfect his appeal on this 
issue.  The evidence is referred to the agency of original 
jurisdiction for appropriate action. 

In addition, the veteran claims service connection for a 
psychiatric disability secondary to multiple sclerosis.  The 
recently submitted medical evidence indicates a possible 
relationship.  This is a new claim and is referred to the 
agency of original jurisdiction for appropriate development.

The Board also points out that a claim by a veteran for 
compensation may also be considered a claim for pension.  The 
greater benefit will be awarded, unless the claimant 
specifically elects the lesser benefit.  38 C.F.R. § 3.151 
(1997).  If service connection is not granted and 
compensation benefits awarded, the RO should address the 
claim for pension.  


CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that the evidence submitted is new and 
material evidence sufficient to reopen his claims of 
entitlement to service connection for multiple sclerosis and 
a psychiatric disorder.


DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered 
all of the evidence and material of record in the veteran's 
claims file.  Based on its review of the relevant evidence in 
this matter, and for the following reasons and bases, it is 
the decision of the Board that the veteran has submitted new 
and material evidence sufficient to reopen his claim for 
service connection for multiple sclerosis.  For the reasons 
and bases discussed below, the veteran’s claim is remanded to 
the RO for further action.

Further, it is the decision of the Board that new and 
material evidence has not been submitted to reopen a claim of 
entitlement to service connection on a direct basis for a 
psychiatric disability.



FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable 
disposition of the appeal has been obtained by the agency of 
original jurisdiction.

2.  Service connection for multiple sclerosis was denied by 
the RO in April 1986.  The veteran did not initiate a timely 
appeal.

3.  The RO in a rating decision in January 1992 determined 
that new and material evidence had not been submitted showing 
that the veteran’s multiple sclerosis condition was incurred 
in service.  Although the veteran submitted a notice of 
disagreement, he did not perfect his appeal by submitting a 
timely substantive appeal. 

4.  In October 1997, a medical opinion was submitted stating 
that the first symptoms of MS documented in the record 
probably were symptoms noted in service in August 1952.  

5.  Additional evidence submitted since the RO’s rating 
decision in January 1992 is new and material as to the issue 
of service connection for multiple sclerosis and is, 
therefore, sufficient to reopen the veteran’s claim.

6.  A Board decision in January 1990 denied service 
connection for a psychiatric disability.

7.  The RO determined in October 1992 in the statement of the 
case that new and material evidence had not been submitted to 
reopen the claim for service connection for psychiatric 
disorder.  No timely appeal was initiated.

8.  The evidence received since the RO’s October 1992 
decision on the issue of service connection on a direct basis 
for a psychiatric disability, includes duplicate evidence and 
evidence which is cumulative and repetitious.  Other evidence 
received is new or not previously of record but does not bear 
directly or substantially upon the specific matter under 
consideration or is not probative of the instant issue.  It 
does not present a reasonable possibility that, when 
considered in the context of all the evidence, would change 
the outcome of the case.


CONCLUSIONS OF LAW

1.  Additional documentation received since January 1992 when 
the RO determined that new and material evidence had not been 
submitted and denied the claim of entitlement to service 
connection for multiple sclerosis constitutes evidence 
sufficient to reopen the veteran’s claim for service 
connection for multiple sclerosis.  38 U.S.C.A. §§ 5108, 7104 
(West 1991); 38 C.F.R. §§ 3.104(a), 3.156 (1997).

2.  Evidence received since October 1992, when the RO 
determined that new and material evidence had not been 
submitted and denied the claim for service connection on a 
direct basis for a psychiatric disability, is not new and 
material, and the veteran's claim for service connection on a 
direct basis for a psychiatric disability has not been 
reopened.  38 U.S.C.A. § 5108 (West 1991).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The veteran is seeking service connection for multiple 
sclerosis and a psychiatric disability.  A longitudinal 
review of the claims file shows that both claims have 
previously been denied.  Service connection for multiple 
sclerosis was denied by the RO in April 1986, May 1990 and in 
January 1992.  The law grants a period of one year from the 
date of notice of the result of the initial determination for 
the filing of an application for review on appeal; otherwise, 
that determination becomes final and is not subject to 
revision on the same factual basis.  38 U.S.C.A. § 7105 (West 
1991).  As the RO has previously denied service connection 
for multiple sclerosis and no timely substantive appeal was 
filed, the decision became final.  Even though the decision 
became final, the claim shall be reopened, and the former 
disposition of the claim reviewed if new and material 
evidence is secured or presented.  38 U.S.C.A. § 5108 (West 
1991).

Service connection for a psychiatric disability was denied by 
the Board in January 1990.  When a claim is disallowed by the 
Board, it may not thereafter be reopened and allowed, and no 
claim based on the same factual basis shall be considered. 
38 U.S.C.A. § 7104(b) (West 1991).  The RO in October 1992 
determined that new and material evidence had not been 
submitted and denied the claim.  The veteran did not timely 
appeal this decision.

The veteran submitted a private medical evaluation report of 
an office visit in April 1990 to the Semmes-Murphy Clinic 
with a diagnosis of MS to reopen his claim.  The RO issued a 
rating decision in May 1990 that determined that the 
evaluation by the private medical doctor was not new and 
material evidence sufficient to reopen a claim of entitlement 
to service connection for MS.  The rating decision also noted 
that the veteran should be informed that the January 1990 
Board decision was final and if he wished to pursue for 
service connection for a nervous condition, he needed to 
submit new and material evidence.  Although a letter to the 
veteran in May 1990 addressed only the issue of a nervous 
condition, the veteran was notified that if he wished to 
reopen his claim, he needed to submit evidence not previously 
considered in his case, tending to show that his condition 
was incurred in or aggravated by his military service.  

In April 1991, the veteran, through his representative, 
requested that a search be made for Surgeon General records 
as he was trying to establish MS during the presumptive 
period.  In addition, records were requested from Drs. Stacey 
and Blakey and from Dr. Kirk.  Although records were 
requested from Drs. Stacey and Blakey for the period from 
1950 to 1956, a reply was received that records for that 
period could not be located as the records were retained only 
for ten years.  The RO requested a search for additional 
military records and sick reports and morning reports were 
received.  The search was negative for “SGO records”.  No 
reply was received from Dr. Kirk.

In November 1991, the RO notified the veteran that new and 
material evidence had to be submitted in order to reopen the 
claim for service connection for multiple sclerosis.  A 
letter rating decision in January 1992 informed the veteran 
that new and material evidence had not been received on the 
claim for service connection for multiple sclerosis and the 
claim was denied.  The veteran filed a notice of disagreement 
and a statement of the case was issued which informed the 
veteran of the action taken since May 1990 on the claim for 
service connection for MS.  The veteran did not perfect his 
appeal.

The August 1993 rating decision determined that new and 
material evidence had not been submitted sufficient to reopen 
a claim of entitlement to service connection for multiple 
sclerosis and an acquired psychiatric disorder.  Evidence 
reviewed included lay statements dated in June 1993 from 
D. F., M. C., C. F., and A. C.  The RO determined that the 
lay statements contained no clinical evidence to establish 
that the veteran incurred an acquired psychiatric disorder 
while on active duty or that multiple sclerosis was 
manifested to a degree of 10 percent within seven years after 
discharge.  The veteran disagreed and initiated an appeal.  
He requested a travel Board hearing; however, in writing in 
July 1995, he canceled the hearing.  At that time, he 
submitted additional personal statements and lay statements 
including duplicates of statements previously submitted.  
Statements were received from M. K., M.C., N.S., C.F., A.C., 
L.J., D.H., R.S., and T.M.  In October 1995, the RO issued a 
rating decision and a supplemental statement of the case 
informing the veteran that new and material evidence had not 
been submitted sufficient to reopen the claims of entitlement 
to service connection for multiple sclerosis and an acquired 
psychiatric disorder.    

In December 1995, the veteran submitted additional statements 
and copies of articles pertaining to multiple sclerosis.  He 
requested to personally appear at a hearing before a member 
of the Board in Washington, D.C.

Other evidence submitted included multiple medical records 
pertaining to several medical complaints and disabilities, 
lay statements and statements from the veteran, and a nursing 
discharge summary in November 1989 from Mississippi Methodist 
Rehabilitation Center, 

The veteran’s representative in February 1996 advised VA in 
writing that the veteran desired to have a personal hearing 
at the VARO in Jackson, Mississippi.  A hearing was scheduled 
at the RO in August 1996 at which the veteran presented 
testimony and indicated his main concern was with his MS 
condition and trying to prove that he had symptoms in service 
and shortly after service.  The veteran testified that in 
service he was diagnosed with schizoid personality disorder.  
He described having a dream one night about having his arms 
and feet shot off and he was still crawling.  He submitted 
two issues of a magazine published by the National Multiple 
Sclerosis Society, a personal statement and copies of morning 
reports with information regarding the veteran showing that 
he was transferred to the MASH unit..  Other evidence 
submitted included a consultation in July 1996 with a 
neurological examination and a discharge summary from the 
Rehabilitation Institute in July 1996.  Lay statements from 
Rev. B. H., R. F., W. L, and F. P. were submitted. 

In February 1997 the veteran filed a VA Form 9 indicating his 
desire to appear before a member of the Board in Washington, 
D.C.  A hearing was first scheduled in September 1997, then, 
at the veteran’s request was rescheduled in January 1998; 
however, the veteran canceled the hearing.  

Evidence submitted in October 1997 included a medical opinion 
from Dr. Bash, excerpts from 3 Robert J. Joynt, M.D., Ph.D. & 
Robert C. Griggs, M.D., Clinical Neurology, (Revised Ed. 
1996), and another lay statement from W. J. L. dated in 
August 1997 regarding the veteran being ill in service with a 
high fever, soiling his clothes, injuring his back, and 
working in cold weather.

Analysis

When a veteran seeks to reopen a previously denied claim 
based upon new evidence, a two-step analysis is required.  
The first step is to determine if the evidence is new and 
material; if so, the case is reopened and the merits of the 
claim must be evaluated on the basis of all of the evidence, 
both new and old.  Manio v. Derwinski, 1 Vet. App. 140, 145 
(1991).  The claim shall be reopened, and the former 
disposition of the claim reviewed if new and material 
evidence is secured or presented.  38 U.S.C.A. § 5108 (West 
1991).

First, we must determine whether the evidence presented or 
secured since the prior final disallowance of the claim is 
“new and material.”  New evidence, however, means more than 
evidence that was not previously physically of record, and is 
evidence that is more than merely cumulative.  Colvin v. 
Derwinski, 1 Vet. App. 171 (1991).  Evidence is “material” 
where it is relevant to and probative of the issue at hand 
and where there is a reasonable possibility that, when viewed 
in the context of all the evidence, both new and old, it 
would change the outcome.  Blackburn v. Brown, 8 Vet. App. 
97, 102 (1995); Cox (Billy) v. Brown, 5 Vet. App. 95, 98 
(1993); Sklar v. Brown, 5 Vet. App. 140, 145 (1993); Colvin 
v. Derwinski, 1 Vet. App. 171, 174 (1991).  Stated 
alternatively, “new and material evidence” means evidence 
not previously submitted to agency decision makers which 
bears directly and substantially upon the specific matter 
under consideration, which is neither cumulative nor 
redundant, and which by itself or in connection with evidence 
previously assembled is so significant that it must be 
considered in order to fairly decide the merits of the claim.  
38 C.F.R. § 3.156(a) (1997).  Evidence which is solely 
cumulative or repetitious in character will not serve as a 
basis for reconsideration of a previous decision.  38 C.F.R. 
§ 3.156 (1997).

Second, if the Board determines that the evidence is new and 
material, it must reopen the claim and “evaluate the merits 
of the veteran’s claim in light of all the evidence, both new 
and old.”  Masors v. Derwinski, 2 Vet. App. 181, 185 (1992).  
“[A]bsent the submission of new and material evidence, the 
claim cannot be reopened or readjudicated by the VA.”  
Henderson v. Brown, 6 Vet. App. 45, 46 (1993).  If the 
appellant fails to meet either part of this threshold 
requirement, the Board is not required to consider the merits 
of the claim.  38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. 
§ 20.1105 (1997).

The United States Court of Veterans Appeals (Court) has 
discussed the “Manio” process in Evans v. Brown, 9 Vet. 
App. 273 (1996).  The Court outlined that the first step of 
the Manio two-step process involved three questions: 

Question 1:  Is the newly presented 
evidence “new” (that is, not of record 
at the time of the last final 
disallowance of the claim and not merely 
cumulative of other evidence that was 
then of record, see Struck v. Brown, 9 
Vet. App. 145, 151; Blackburn, Cox, and 
Colvin, all supra)?.  Question 2:  Is it 
“probative” of “the issue[s] at hand” 
(Cox and Colvin, both supra) (that is, 
each issue which was a specified basis 
for the last final disallowance (see 
Struck, supra))?  Question 3:  If it is 
new and probative, then, in light of all 
of the evidence of record, is there a 
reasonable possibility that the outcome 
of the claim on the merits would be 
changed (see ibid.)? As Blackburn 
indicated, affirmative answers to both 
questions 2 and 3--involving the 
probative nature of the “new” evidence 
and the reasonable possibility of outcome 
change, respectively-- are required in 
order for “new” evidence to be 
“material” (notwithstanding the 
concurring opinion’s assertion to the 
contrary, section 5108 requires that a 
claim be reopened “[i]f new and material 
evidence is presented or secured”).  
Blackburn, 8 Vet. App. at 102.  As to 
those two “materiality” components, the 
credibility of the newly presented 
evidence is generally presumed under 
Justus [v. Principi, 3 Vet. App. 510 
(1992)] and Duran [ v. Brown, 7 Vet. App. 
216 (1994)]....  In looking at the first 
materiality component (whether the 
evidence found to be “new” is also 
probative) the focus is on the new 
evidence; as to the second materiality 
component (whether there is a reasonable 
possibility that the outcome on the 
merits would be changed), the focus is on 
all of the evidence of record rather than 
just on the new evidence.  See Struck and 
Blackburn, both supra; Glynn v. Brown, 6 
Vet. App. 523, 529-29 (1994); Cox and 
Colvin, both supra.

The Court determined that “in order to warrant reopening a 
previously and finally disallowed claim, the newly presented 
or secured evidence must be not cumulative of evidence of 
record at the time of the last prior final disallowance and 
must tend to prove the merits of the claim as to each 
essential element that was a specified basis for that last 
final disallowance of the claim.”  Evans v. Brown, 9 Vet. 
App. 273, 284 (1996).

The Court held, in line with Edenfield v. Brown, 8 Vet. App. 
384 (1995), that sections 5108, 7104(b), and 7105(c) require 
that in order to reopen a previously and finally disallowed 
claim, by either the RO or the Board, there must be “new and 
material evidence presented or secured” since the time that 
the claim was finally disallowed on any basis.

Multiple sclerosis

On the issue of service connection for multiple sclerosis, 
the last final disallowance was the RO’s decision in January 
1992.  The RO determined that the April 1990 medical report 
with a diagnosis of MS was not new and material evidence 
sufficient to reopen the claim of entitlement to service 
connection for MS.  It did not show that the veteran had MS 
in service or within the seven year presumptive period.  
38 C.F.R. § 3.307 (1997).  The evidence previously considered 
by the RO in 1986 were the service medical records, a VA 
hospital summary for 1972, and a private medical doctor’s 
report prepared in 1985 indicating the veteran may have had 
multiple sclerosis.

Although much of the evidence received since the last final 
denial is duplicative, repetitious and cumulative, we do find 
a medical opinion that is new and material evidence.  A 
September 1997 opinion by Craig N. Bash, M.D., 
Neuroradiologist indicated that the veteran now is diagnosed 
with MS and “the first symptoms documented in this record 
which probably represent manifestations of MS are those of 
visual disturbances and weakness described in the service 
medical records of August 22, 1952.”  As the veteran sought 
treatment in service for blurring of vision, weakness, and 
musculoskeletal symptoms and the medical evidence of Dr. Bash 
links his current multiple sclerosis to symptoms manifested 
in service, it provides the medical evidence of nexus as to 
create a reasonable possibility of a changed outcome.

The Board finds that the September 1997 opinion by Dr. Bash 
is relevant and probative of the issue at hand.  There is a 
reasonable possibility that the new evidence when viewed in 
the context of all the evidence would change the outcome. 
Accordingly, we find the evidence to be new and material 
evidence sufficient to reopen the claim of entitlement to 
service connection for multiple sclerosis.  

Psychiatric disability

On the issue of service connection for a psychiatric 
disability, the last final disallowance was the RO’s decision 
in October 1992.  Evidence considered in the January 1990 
Board decision included service medical records, lay 
statements, an April 1988 VA psychiatric evaluation, a 
private physician’s statement dated in October 1988, a 
psychologist’s report of November 1988, and the transcript of 
a personal hearing at which testimony was received from the 
veteran and a private psychologist.  When evaluated in 
service in 1952, the diagnosis was stated as schizoid 
personality, severe, chronic, manifested by unsociability, 
seclusiveness and feelings of inadequacy.  The Board 
determined that the only psychiatric disorder the veteran had 
in service was a personality disorder, which is a 
developmental abnormality and not a disease within the 
meaning of the applicable legislation providing compensation 
benefits.  The Board also determined that while recent 
reports indicated the veteran had an anxiety neurosis, the 
anxiety neurosis was not present while the veteran was on 
active duty.  

In July 1992 the veteran sought to reopen his claim for a 
psychiatric disability, claimed as nervous condition, 
anxiety, and PTSD based on service records showing he was in 
for a “NP evaluation”.  As this evidence was in the service 
medical records previously considered, the RO determined this 
was not new and material evidence and notified the veteran in 
October 1992.  

The report of an office visit in April 1990 to the Semmes-
Murphy Clinic for an evaluation pertained to multiple 
sclerosis.  This is not new and material evidence as it is 
not probative to the issue of a psychiatric disability.  
Other medical records showing treatment for non-related 
disorders also are not new and material evidence as they are 
not probative to the issue of a psychiatric disability.  
Duplicate copies of evidence previously considered clearly is 
not new and material evidence.  Testimony by the veteran is 
cumulative and not new and material evidence.  

The lay statements describe behavior of the veteran observed 
since his discharge from service to the present time.  
Although we acknowledge the laypersons’ observations of 
symptomatology and find the statements credible, there is no 
probative value as they do not establish a clear medical 
diagnosis of a psychiatric disability.  See Espiritu v. 
Derwinski, 2 Vet. App. 492, 494 (1992); Ohland v. Derwinski, 
1 Vet. App. 147, 149-50.(1991).  The lay statements although 
corroborated by the medical evidence that the veteran has a 
psychiatric condition, are not pertinent to developing the 
veteran's claim of service connection for a psychiatric 
disability.  See Rhodes v. Brown , 4 Vet. App. 124 (1993).

The Board finds that the evidence submitted or secured to 
reopen a claim of entitlement to service connection on a 
direct basis for a psychiatric disability is not sufficient 
to reopen the claim.  The claim is denied.


ORDER

The veteran’s application to reopen his claim of entitlement 
to service connection for multiple sclerosis is granted.

New and material evidence not having been presented or 
secured, the veteran’s request to reopen his claim for 
entitlement to service connection on a direct basis for a 
psychiatric disability is denied.


REMAND

In light of the reopening of his claim, the Board observes 
that the veteran’s claim of entitlement to service connection 
for multiple sclerosis is to be determined following a de 
novo review of the entire record.  In considering a similar 
factual scenario, the Court has held that:

. . .when, as here, the Board addresses in its 
decision a question that had not been addressed 
by the RO, it must consider whether the 
claimant has been given adequate notice of the 
need to submit evidence or argument on that 
question and an opportunity to submit such 
evidence and argument and to address that 
question at a hearing, and if not, whether the 
claimant has been prejudiced thereby.  Bernard 
v. Brown, 4 Vet. App. 384, 394 (1993).

Based on the holding in Bernard, we conclude that the veteran 
should be provided an opportunity to submit further evidence, 
testimony and argument in support of his claim prior to our 
resolution of the instant claim.

The veteran seeks service connection for multiple sclerosis 
claiming that the onset was in service or aggravated by 
service.  As noted above, Dr. Bash provided an opinion in 
September 1997 that the veteran now is diagnosed with 
multiple sclerosis (MS) and “the first symptoms documented 
in this record which probably represent manifestations of MS 
are those of visual disturbances and weakness described in 
the service medical records of August 22, 1952.”  There is 
evidence in the claims file to suggest that multiple 
sclerosis may have pre-existed the veteran’s entry on active 
duty manifested by symptoms described by the veteran.  A 
medical opinion should be obtained as to whether the 
veteran’s multiple sclerosis existed prior to service and was 
aggravated therein or any increase in disability shown was 
due to the natural progression of the disease.

Based on the holding in Bernard, we conclude that the veteran 
should be provided an opportunity to submit further evidence, 
testimony and argument in support of his claim prior to our 
resolution of the instant claim.  Additionally, we note that 
a medical opinion is needed in this case.  Therefore, in 
light of the VA’s duty to assist the veteran in the proper 
development of his claim as mandated by the provisions of 38 
U.S.C.A. § 5107(b) (West 1991) and as interpreted by the 
Court in Bernard and Littke v. Derwinski, 1 Vet. App. 90, 92- 
93 (1990), this case is REMANDED for the following actions:  

1.  Copies of all VA treatment records not 
previously secured pertaining to the veteran 
since his separation from service in 1953 
should be obtained and associated with the 
record.  

2.  The RO should obtain a medical opinion as 
to whether the veteran’s multiple sclerosis 
pre-existed service; if so, was it aggravated 
during service, or were the symptoms manifested 
in service, now attributed to multiple 
sclerosis, the natural progression of the 
disease.  If multiple sclerosis is found not to 
have preexisted service, the examiner should 
render an opinion as to whether the symptoms 
noted in service were the first manifestations 
of this disorder.

3.  The RO should conduct a de novo review the 
record in light of the additional evidence and 
readjudicate the claim of entitlement to 
service connection for multiple sclerosis.  If 
any benefit sought, for which an appeal has 
been perfected, remains denied, the veteran and 
his representative should be furnished a 
supplemental statement of the case, and given 
the opportunity to respond thereto with 
additional argument and/or evidence.


No opinion, either legal or factual, is intimated as to the 
merits of the appellant's claim by this REMAND.  He is not 
required to undertake any additional action until he receives 
further notification from VA.  However, while this case is in 
REMAND status, the appellant is free to submit additional 
evidence and argument on the questions at issue.  Quarles v. 
Derwinski, 3 Vet. App. 129, 141 (1992).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans’ Appeals or by the United States Court of 
Veterans Appeals for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans’ Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).  
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.





		
	L. M. BARNARD
	Acting Member, Board of Veterans' Appeals


NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1997), a decision of the Board of Veterans' 
Appeals granting less than the complete benefit, or benefits, 
sought on appeal is appealable to the United States Court of 
Veterans Appeals within 120 days from the date of mailing of 
notice of the decision, provided that a notice of 
disagreement concerning an issue which was before the Board 
was filed with the agency of original jurisdiction on or 
after November 18, 1988.  Veterans' Judicial Review Act, 
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988).  The 
date that appears on the face of this decision constitutes 
the date of mailing and the copy of this decision that you 
have received is your notice of the action taken on your 
appeal by the Board of Veterans' Appeals.

Appellate rights do not attach to those issues addressed in 
the remand portion of the Board’s decision, because a 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) (1997).
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