Citation Nr: 1309524 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 09-02 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for metastatic squamous cell carcinoma originating in the right hand. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Appellant appears to have been a member of the Navy Reserves, with an initial period of active duty for training (ACDUTRA) from February 1973 to March 1973. As the Appellant has not established service connection for any disability at this time, and there is no evidence of any disease or injury during his ACDUTRA, he would not appear to be entitled to veteran status at this time. 38 C.F.R. §§ 3.1(d), 3.6. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied entitlement to the benefit sought. The New York RO has retained jurisdiction over the Appellant based on his residence. In December 2008, the Appellant requested a personal hearing at the RO before a Veterans Law Judge. The Appellant was repeatedly scheduled for such, but was unable to appear at any of the proposed times. Eventually, the Appellant was scheduled for a hearing before the undersigned via videoconference from the VA medical center (VAMC) in Albany, New York. The Appellant appeared at the appointed time and place, but stated he did not wish to testify. This defeats the purpose of a hearing. 38 C.F.R. § 20.700(b). The Appellant's actions at the April 2012 appearance constitute a withdrawal of his hearing request. The undersigned did clarify the issue on appeal and permit the Appellant's representative to make a statement for the record. This is reduced to writing and associated with the claims file. In May 2012, the Board remanded the case for additional development. 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 Appellant is claiming entitlement to compensation under 38 U.S.C.A. § 1151. Specifically, he contends that in treating his complaints of right index finger problems from May to July 2003, VA was negligent in not discovering and diagnosing squamous cell carcinoma in the finger. The Appellant has undergone several amputations of portions of the digits of the left and right hands, and reports his cancer has metastasized to other areas. The Board's previous remand directed that the Appellant be requested to provide properly executed VA Form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for all private care providers who treated him for his right hand infection and subsequent carcinoma. Upon receipt of such, complete records, to include copies of pathology and laboratory reports, were to be obtained from the identified providers. Pursuant to that directive, 20 pages of records were obtained in September 2012 from Capital Region Orthopedics in Albany, New York. Unfortunately, review of these records shows that they pertain to another person with the same first and last names as the Appellant but a different birthdate. Thus, in order to properly assist the Appellant, the care provider must be contacted again and the proper records obtained. Accordingly, the case is REMANDED for the following action: 1. Contact Capital Region Orthopedics in Albany, New York, and explain that the records obtained from that provider in September 2012 were for a person with the same first and last name as the Appellant but not the correct birthdate. Request the complete records pertaining to the Appellant, to include complete records, to include copies of pathology and laboratory reports. All records obtained must be associated with the claims folder. 2. Then, readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Appellant and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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. 2010). _________________________________________________ RONALD W. SCHOLZ 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) (2010).