Citation Nr: 1337300 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 12-19 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a compensable evaluation for a post-operative left inguinal hernia. 2. Entitlement to a temporary total disability rating under 38 C.F.R. § 4.30 based on the need for a one-month period of convalescence following a surgical procedure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from April 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. 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 on his part. REMAND The Board notes that an August 2010 operative report indicated that, following a repair for a service-connected left inguinal hernia, the Veteran was transferred to recovery, with a plan to follow in the General Surgery Clinic on the next available date. However, the report of a follow-up visit is not contained in the record. See 38 C.F.R. §§ 19.37, 20.1304. The Board notes that this potentially-outstanding evidence may be pertinent to each claim on appeal, in that it could indicate that the Veteran, who was approximately 85 years of age at the time of surgery, required a 30-day period of convalescence (see 38 C.F.R. § 4.30), or suffered an additional hernia or other complication to warrant an increased rating per 38 C.F.R. § 4.114, Diagnostic Code 7338 (2013). In cases such as these, VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). Therefore, on remand, it should be determined whether any additional VA outpatient reports exist and, if so, those reports should be associated with the record. Additionally, pertinent information was recently added to the file which was not accompanied by a waiver of RO consideration, although an initial review of the new evidence by the agency of original jurisdiction (AOJ) was not conducted. See 38 C.F.R. §§ 19.37, 20.1304. This evidence consists of an abdominal ultrasound conducted in April 2010 by the Ann Arbor, Michigan VA. The evidence was attached to the Veteran's formal appeal (VA Form 9). The Board notes that this evidence is clearly pertinent to the claims on appeal, and it was added to the record after the issuance of the July 2012 Statement of the Case (SOC). Applicable VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a Supplemental Statement of the Case (SSOC) unless this procedural right is waived in writing by the appellant. 38 C.F.R. §§ 19.37, 20.1304 (2011). As such, the RO shall readjudicate the claim with the benefit of consideration of all evidence added to the file since the SOC issued in July 2012, to include the aforementioned evidence. After the additional evidence has been associated with the claims file, to the extent available, the RO shall readjudicate the claims on appeal with the benefit of consideration of all evidence added to the file since the SOC issued in July 2012. 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 attempt to obtain and associate with the Veteran's claims file any outstanding VA outpatient treatment records from August 2010 (the date of veteran's operative report) to the present. If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented in the claims file, and the Veteran notified of the efforts that were made to obtain such records. He should then be given the opportunity to submit the records himself. 2. Following completion of the above and any other development deemed appropriate, the RO/AMC shall readjudicate the Veteran's claims, to include consideration of any additional evidence received as a result of this remand, as well as additional evidence received since the July 2012 SOC. If either benefit sought on appeal remains denied, the Veteran and his representative should be provided with an appropriate SSOC and provided the opportunity to respond thereto. 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). _________________________________________________ BARBARA B. COPELAND 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).