Citation Nr: 1322398 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 09-24 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to increases in the "staged" ratings assigned for bilateral tinea pedis/epidermophytosis, with onychomycosis (currently 0 percent prior to April 10, 2012 and 10 percent from that date). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1953 to May 1955. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Providence, Rhode Island Department of Veterans Affairs (VA) Regional Office (RO) which denied a compensable rating for his foot skin disability. In January 2012, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In March 2012, the case was remanded for additional development. A September 2012 rating decision increased the rating to 10 percent, effective April 10, 2012. As that increase is less than the maximum under the schedular criteria, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The issue is characterized to reflect that "staged" ratings are assigned, and that both "stages" are for consideration. In February 2013 and April 2013, the case was again remanded 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. 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). On March 2013 VA examination (following the Board's February 2013 remand) the Veteran identified a Dr. "Bahara" as his treatment provider (for tinea pedis and onychomycosis). In April 2013, the Board remanded this matter, in part, for the RO to secure records of the Veteran's treatment from Dr. Bahara (which would clearly be pertinent evidence). The RO asked the Veteran to complete and return an authorization for VA to secure Dr. Bahara's records. Instead of responding to the request, the Veteran submitted records of his treatment by Dr. "Bharier," of the Ellen Frankel Inc. Dermatology practice. The RO then issued a supplemental statement of the case (SSOC) and returned the case to the Board. The Board has considered the possibility that Dr. Bahara was misidentified as Dr. Bahara. However, in an April 2013 visit, Dr. Bharier's report notes that for his tinea pedis, the Veteran was followed by VA dermatologists and that the Veteran "has never consulted me for [this] before." Records show that Dr. Bharier had seen the Veteran over a period of years for other skin problems. Records from Dr. Bahara who was identified on VA examination remain to be secured. The appellant is advised that a governing regulation provides that when evidence or information (to include releases for pertinent private treatment records) sought in connection with a claim for VA benefits is not received with a year of the request, the claim is to be considered abandoned. 38 C.F.R. § 3.158(a). 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 again ask the Veteran to provide the authorization necessary for VA to secure copies of complete records of the treatment he received from Dr. "Bahara" (or explain his failure to do so, e.g. if there was no treatment by a Dr. "Bahara" to so indicate). If he complies with the request, the RO should secure for the record copies of the complete records of the Veteran's treatment Dr. Bahara. If Dr. Bahara does not respond to the RO's request, the Veteran should be so notified, and advised that ultimately it is his responsibility to ensure that such records are received.. 2. The RO should then review the record; arrange for any further development suggested by the records received; and readjudicate the claim. If it remains denied, the RO should issue an appropriate SSOC and afford the appellant and his representative the opportunity to respond. The case should then be returned to the Board. 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).