Citation Nr: 1321935 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 06-03 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 10 percent for a liposarcoma of the left thigh. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who had active duty service from July 1956 to July 1960, from September 1960 to November 1965, and from May 1966 to March 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for a left thigh liposarcoma, rated 0 percent, effective May 9, 2003. In June 2006 a hearing was held before a Decision Review Officer at the RO, and in February 2011 a Travel Board hearing was held before the undersigned. Transcripts of both hearings are associated with the Veteran's claims file. In March 2011, the case was remanded for additional development. A July 2012 rating decision increased the rating to 10 percent, also effective May 9, 2003. In September 2012 and April 2013, the case was remanded again for additional development. 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 on his part is required. REMAND While the notice provisions of the VCAA appear to be satisfied, a review of the record found that further development is necessary to comply with VA's duty to assist the Veteran in the development of facts pertinent to the claim of service connection for bilateral pes planus. See 38 C.F.R. § 3.159. The Board observes that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271(1998). The Board's September 2012 remand directed the RO to ask the Veteran to: clarify whether or not he was evaluated or treated by Drs. Baskies, Hahn and Buckley, and provide authorization for VA to secure records of evaluations and treatment from Dr. Fraker. In October 2012, the Veteran replied that Dr. Baskies referred him to Dr. Fraker for the growth in his thigh, and that Dr. Fraker sent him to Dr. Hahn for "a study and experimental treatment". He indicated that he was told that the study would not help him, but would help other veterans, and elected to not participate. He identified Dr. Buckley as his primary care provider. He noted, "I never stated that Dr. Hahn, Dr. Baskies or Dr. Buckley treated (emphasis added) me for Liposarcoma." In April 2013 the Board, noting that it appeared that all of these providers had at one point evaluated the Veteran's left thigh growth, again remanded the matter for additional development, i.e., to secure complete clinical records of the evaluations from those named providers. In a letter later in April 2013, the RO stated (inaccurately) that the Veteran had reported treatment by Drs.Baskies, Hahn and Buckley and asked him to provide releases for records of such treatment. The April 23, 2013 dated RO request/duty to assist letter to the Veteran contains no mention of evaluation/consultation records. As such records would be pertinent evidence in this matter, they must be secured. In summary, evidence (private providers' evaluation/consultation reports) pertinent to the Veteran's claim (and that he has identified) remains outstanding. The Board remanded for development for such evidence. Instead of seeking releases for evaluation/consultation reports the RO requested releases for records of treatment (which the Veteran had clearly stated he did not receive). The case was then (prematurely) returned to the Board. Under the Stegall precedent cited above, the Board has no recourse but to remand again for compliance with prior remand instructions. Accordingly, the case is REMANDED for the following: (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 should ask the Veteran to provide releases for VA to obtain copies of the records of his evaluations by Drs. Baskies, Hahn, and Buckley (i.e., the records of the visits to these providers he has reported), and obtain copies of the complete records of his evaluations by/consultations with these providers. 2. When the development sought above is completed (or after a year has lapsed from the RO's initial request for the records sought) the RO should review the record, arrange for any further development indicated, and then readjudicate the claim. [If the Veteran does not provide the releases/evidence/ information sought, the claim must as required under 38 C.F.R. § 3.158(a) be found abandoned.] If the claim remains denied (or is dismissed as abandoned), the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk 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).