Citation Nr: 1402014 Decision Date: 01/14/14 Archive Date: 01/31/14 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 A.M. Ivory, 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) (2013). In September 2013, the Board remanded the issue on appeal for further development. As noted in the September 2013 remand, during the course of the appeal, a Veterans Service Organization (VSO), 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. This appeal was processed using the Veterans Benefit Management System (VBMS) paperless claims processing system. In addition to the VBMS electronic file, the Veteran's appeal also includes an electronic (Virtual VA) paperless claims file. With the exception of the aforementioned September 2013 Brief filed by The American Legion, the documents contained therein are either duplicative of the evidence in the VBMS file or are irrelevant 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). In September 2013, the Board remanded the case in order to obtain outstanding private and VA records, to include those from Drs. Patel and Kupper, and to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his right inguinal hernia. The Veteran was afforded a VA examination in November 2013; however, the Board finds that the agency of original jurisdiction (AOJ) has not fully complied with the remand directives regarding obtaining outstanding records. In this regard, the Board directed the AOJ to obtain any necessary authorization from the Veteran (i.e., a completed and signed VA Form 21-4142) and any additional information deemed necessary to 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. In addition, the AOJ was directed that 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. Subsequent to the Board remand, the AOJ obtained VA treatment records dated through September 2013. Additionally, in an October 2013 letter, the AOJ requested that the Veteran complete and return a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each private healthcare provider, to include Drs. Patel and Kupper, so as to allow VA to obtain such records. Thereafter, later in October 2013, the Veteran submitted a signed VA Form 21-4142 that listed three physicians on it: Dr. Patel, Dr. Kupper, and a physician at the VA Medical Center. In a November 2013 Report of General Contact, it was noted that someone from the VA "[c]ontacted the receptionist pertaining to where the medical records for Dr. [] Kupper, who has retired, would be retrieve[d]." However, there is no follow up information, i.e., if the records were ever obtained or if they were unavailable. In addition, there is no indication that the AOJ contacted Dr. Patel to obtain any additional records. In the November 2013 supplemental statement of the case, the AOJ stated: On October 4, 2013 you were sent a letter that requested private treatment records from Dr. Patel and Dr. Kupper. You provided a release authorization that was received October 18, 2013 with identification of multiple providers on the same form. As reported by the October 4, 2013 letter, release authorizations for separate examiners and/or facilities require separate release authorization forms. We did attempt to seek information as to where records from Dr. Kupper would be following his retirement, but no response was received with this information from his prior facility. However, there is no indication that the AOJ either obtained or tried to obtain any private treatment records from Dr. Patel or properly documented the unavailability of Dr. Kupper's records in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e). Thus, on remand the AOJ should obtain any outstanding private treatment records from Drs. Patel and Kupper, following the procedures prescribed in 38 C.F.R. § 3.159. 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. 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 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 paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran 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. 2013). _________________________________________________ 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) (2013).