Citation Nr: 1301936 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-23 375A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for the Veteran's service-connected residuals of a right inguinal hernia repair with post-operative neuralgia compensated under 38 U.S.C.A. § 1151, including on an extraschedular basis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from March 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 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. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. REMAND The Veteran has claimed entitlement to an initial disability rating in excess of 10 percent for his service-connected residuals of a right inguinal hernia repair with post-operative neuralgia, including on an extraschedular basis. Under 38 C.F.R. § 3.321(b)(1), the Board is precluded from assigning an extraschedular evaluation in the first instance. Instead, the Board must refer any claim that meets the criteria to the RO for referral for consideration of an extraschedular evaluation to the Director, Compensation and Pension Service. The evidence of record, namely the April 2012 VA examination report, indicates some possibility that the Veteran's right inguinal hernia repair residuals may present an exceptional or unusual disability picture. Accordingly, the Board finds that the criteria for submission to the Director of the Compensation and Pension Service have been met. 38 C.F.R. § 3.321(b)(1); see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Moreover, a review of the record on appeal reveals that the Veteran may be receiving ongoing treatment for his service-connected residuals of a right inguinal hernia repair with post-operative neuralgia. Therefore, the Board finds that while the appeal is in remand status, his contemporaneous VA and private treatment records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). 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) (2012). Expedited handling is requested.) 1. The RO/AMC should obtain updated VA treatment records and provide the Veteran an opportunity to submit evidence to support his claim for an extraschedular evaluation. For example, the Veteran should be asked to provide releases for any employment records or medical reports that would show he missed time from work due solely to his residuals of a right inguinal hernia repair with post-operative neuralgia. The Veteran may also submit statements from past employers, relatives or friends that show the effects of those residuals on daily functioning. The RO/AMC should secure for association with the claims file any corroborating employment or medical records identified. If such records sought are not received pursuant to the RO/AMC's request after the Veteran provides releases, he must be so advised, and advised further that ultimately it is his responsibility to ensure that they are received. 2. Thereafter, the RO/AMC should refer the case to the Director, Compensation and Pension, for a determination as to whether the Veteran is entitled to the assignment of an extraschedular rating for residuals of a right inguinal hernia repair with post-operative neuralgia in accordance with the provisions on 38 C.F.R. § 3.321(b). The Director, Compensation and Pension, is requested to provide adequate reasons and bases for any decision. 3. Upon receiving a response from the Director, Compensation and Pension Service, the RO/AMC should undertake any other administrative or adjudicative actions deemed necessary. If the benefit sought is not granted the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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 J. Skaltsounis Acting 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).