Citation Nr: 1330709 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-42 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to a rating in excess of 10 percent for right inguinal hernia, post operative. ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from December 1956 and May 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In his November 2009 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge sitting at the local RO; however, he subsequently withdrew his request in a statement received later that same month. 38 C.F.R. § 20.704(e) (2012). The Board notes that, during the course of the appeal, a Veterans Service Organization, The American Legion, had been copied on numerous documents and the claims file was referred to such office to offer argument in an Appellate Brief, which was received at the Board in September 2013; however, there is no VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of The American Legion (or any VSO) of record. In this regard, when the claims file was referred to The American Legion for the preparation of VA Form 646 (Statement of Accredited Representative in Appealed Case), The American Legion was notified that the Veteran's VA Form 21-22 was not of record and was requested to supply a copy of such form. However, in response, The American Legion indicated that the organization did not have a copy of the Veteran's VA Form 21-22. As such, in an October 2011 letter, the RO advised the Veteran that a VA Form 21-22 in favor of The American Legion was not of record. He was provided with a copy of VA Form 21-22 and was advised to complete it if he would like to have The American Legion serve as his power of attorney for VA purposes. To date, no response from the Veteran has been received and, therefore, he is considered unrepresented in his appeal before the Board. As indicated previously, The American Legion did, in fact, provide an Appellate Brief on behalf of the Veteran in September 2013. In such document, the service officer indicated that the issue of entitlement to an increased rating for testicular atrophy was also on appeal. Although this issue was also decided by the RO in the December 2006 rating decision, the Veteran's notice of disagreement submitted in September 2007 only addressed the issue of an increased rating for right inguinal hernia and did not give any indication of an intent to appeal the rating assigned to the service-connected testicular atrophy. See 38 C.F.R. §20.201. In addition, such Brief raised an issue of entitlement to service connection for an affective disorder, claimed as secondary to the Veteran's service-connected disabilities. However, as The American Legion is not recognized as the Veteran's accredited representative, its service officers may not file claims on his behalf. Therefore, the Veteran is advised that, if he wishes to file claims for a compensable rating for atrophy of the right testicle and entitlement to service connection for a psychiatric disorder, he should so inform the RO. In additional to a paper claims file, the Veteran's appeal also includes an electronic (Virtual VA) paperless claims file. With the exception of the erroneously obtained September 2013 Appellate Brief from The American Legion, the documents contained therein are either duplicative of records already in the paper claims file or not pertinent to the issue on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND A review of the record indicates that further development is necessary with respect to the issue on appeal. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his right inguinal hernia. In this regard, the Board observes that he was last examined by VA in October 2006. Thereafter, in November 2009, he indicated additional symptoms including protrusion. As such suggests that the Veteran's hernia may have recurred and, thus increased in severity since the October 2006 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Moreover, it appears that the Veteran receives treatment at the VA and from private practitioners, Drs. Patel and Kupper. Although private opinions from both physicians, and some clinical records dated from 2004 to 2006 from Dr. Kupper, have been associated with the claims file, it appears that additional treatment records may be outstanding. As such, additional private records pertaining to the Veteran's disability should be obtained, after receipt of any necessary authorization and consent from the Veteran. Further, the Veteran's claims file only includes VA treatment records dated to October 2009. In light of the need to remand, the Board finds that efforts to obtain additional VA treatment records dated from October 2009 to the present should be made. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142) and any additional information deemed necessary, the AOJ should request any and all medical records pertaining to any additional treatment he has received for his service-connected right inguinal hernia, post operative, to include clinical records from Drs. Patel and Kupper and any VA treatment records dated from October 2009 to the present. Any and all negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 2. After obtaining any additional treatment records, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his service-connected right inguinal hernia, post operative. The claims file must be made available to the examiner for review in connection with the examination. Any medically indicated tests should be accomplished. The examiner should describe the nature and severity of all manifestations of the Veteran's right inguinal hernia, post operative. The examiner should also specify whether the Veteran currently has a hernia and indicate if it is small, postoperative recurrent, or unoperated irremediable, not well supported by truss, or not readily reducible. The examiner should also discuss the impact such disability has on the Veteran's activities of daily living and employment. A rationale should be provided for any opinion offered. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the issue remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran 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 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). _________________________________________________ A. JAEGER 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).