Citation Nr: 1512247 Decision Date: 03/23/15 Archive Date: 04/01/15 DOCKET NO. 13-09 499 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial increased compensable evaluation for proximal phalanx fracture, left ring finger. 2. Entitlement to an initial increased compensable evaluation for allergic rhinitis. 3. Entitlement to an initial increased compensable evaluation for irritable bowel syndrome (IBS). 4. Entitlement to an initial increased compensable evaluation for erectile dysfunction. 5. Entitlement to an initial increased compensable evaluation for gynecomastia. 6. Entitlement to an initial increased compensable evaluation for pseudofolliculitis barbae. 7. Entitlement to service connection for bilateral hearing loss. 8. Entitlement to service connection for malaria. 9. Entitlement to service connection for obstructive sleep apnea. 10. Entitlement to service connection for hypertension. 11. Entitlement to service connection for anemia. 12. Entitlement to service connection for dry skin. ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran had active service from September 1991 to March 2012. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Veteran filed a notice of disagreement (NOD) on September 2012. A Statement of the Case (SOC) was provided in March 2013. The Veteran perfected his appeals with the timely submission of a VA Form 9 in April 2013. This appeal was processed using the Virtual VA/VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed with respect to the Veteran's claims to ensure that there is a complete record upon which to decide these claims so that the Veteran is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the record reflects that the Veteran was last provided with a Supplemental Statement of the Case (SSOC) for his claims on April 2014 and forwarded for adjudication by the Board. Thereafter, VA examinations conducted in November 2014 and December 2014 pertinent to the disabilities for which increased compensation and service connection are claimed were then subsequently associated with the claims file. The Veteran was never provided with any additional SSOCs or rating decisions. A rating decision dated January 2015 for issues not currently on appeal indicated that, with respect to the Veteran's appealed claims, the appeals team would be working on them in light of the recent examinations and notify him accordingly. No such subsequent notice is found in the claims file. Any pertinent evidence submitted by the appellant or representative which is accepted by the Board under the provisions of this section, or is submitted by the appellant or representative in response to a § 20.903 of this part, notification, as well as any such evidence referred to the Board by the agency of original jurisdiction under § 19.37(b) of this chapter, must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefit or benefits to which the evidence relates may be fully allowed on appeal without such referral. 38 C.F.R. § 20.1304(c). Such a waiver must be in writing or, if a hearing on appeal is conducted, the waiver must be formally and clearly entered on the record orally at the time of the hearing. Id. Evidence is not pertinent if it does not relate to or have a bearing on the appellate issue or issues. Id. Here, the claims file reflects that the Veteran has provided no waiver of consideration. However, in this regard it should be noted that section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), has addressed new procedures for claims in which new evidence was received after the last SSOC without a waiver of AOJ consideration. Under that provision, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Therefore, such claims should not be remanded solely for consideration of such new evidence without a request from the Veteran. The Board notes that, as the Veteran's appeal was perfected in April 2013, this new provision would apply. However, it is also noted that, currently, VA has not interpreted this amendment to extend to evidence that was not submitted by the Veteran, such as evidence that was suggested by a submission, but gathered separately pursuant to the duty to assist. Here, the Veteran did not submit the evidence in question (i.e. the November 2014 and December 2014 VA examinations). Rather, this evidence was developed by VA based upon its duty to assist. As such, the Board will not assume that the Veteran has knowingly and voluntarily waived AOJ consideration in this case, as he was not the originator of this evidence submission. Furthermore, the RO, in its January 2015 rating decision, specifically referenced the Veteran's issues on appeal and stated that a response would be forthcoming from the appeals team, thereby giving indication that the AOJ intended to review this evidence. Last, there is no indication in the claims file that the Veteran objected, either explicitly or constructively, to this evidence being first reviewed by the AOJ, further noting that he has had two months to respond since the notification in January 2015. Accordingly, this claim must be remanded to the RO for initial review and consideration of the November 2014 and December 2014 VA examinations in the first instance. After consideration of the new evidence has been afforded as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran should be furnished with a SSOC and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for his claimed conditions. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Thereafter, the RO should then review and consider the November 2014 and December 2014 VA examination reports in the first instance and conduct any further development that may be necessary. 3. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).