Citation Nr: 1514435 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 14-00 837 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington THE ISSUE Entitlement to an initial, compensable rating for basal and squamous cell carcinomas of the skin. ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1952 to January 1954. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2010 rating decision in which the RO granted the Veteran's claim for service connection for basal and squamous cell carcinomas of the skin, and assigned an initial, noncompensable rating, effective August 1, 2002. In September 2010, the Veteran filed a notice of disagreement (NOD) with the assigned rating. A statement of the case (SOC) was issued in December 2013, and the Veteran filed a substantive appeal (via a VA Form 9, Appeals to the Board of Veterans' Appeals) in January 2014. In March 2015, the Deputy Vice Chairman of the Board granted a motion to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2014). Because this appeal emanates from the Veteran's disagreement with the initial rating assigned following the award of service connection for basal and squamous cell carcinomas of the skin, the Board has characterized the claim in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disabilities). This appeal has been processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA claims processing systems. For the reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. A remand is necessary in this case because there appears to be outstanding private treatment records relevant to the Veteran's claim. In this regard, the Board notes that VA's duty to assist includes obtaining relevant VA and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b) (West 2014). Specifically, in response to an October 2011 statement from the Veteran, the AOJ sent a letter to the Veteran in January 2012, requesting that he complete and sign a VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs (VA)) for any private treatment he was currently receiving. In February 2012, the AOJ received a completed and signed VA Form 21-4142 from the Veteran stating that he received treatment from Dr. P.J., of Seattle, Washington, from 2006 to 2011. The form was signed and dated by the Veteran. However, the records were not associated with the Veteran's claims file when the AOJ issued the SOC in December 2013. In January 2014, after discovering that the outstanding private treatment records had not been associated with the claims file, the AOJ sent another letter to the Veteran requesting that he confirm the address of Dr. P.J. and complete another VA Form 21-4142 for the treatment records. In February 2014, the AOJ received another completed and signed VA Form 21-4142 for Dr. P.J. from the Veteran. On the form, the Veteran indicated that he had previously provided all "information" for Dr. P.J. It is unclear whether the Veteran was referring to the address information requested in the January 2014 or the actual private treatment records from Dr. P.J. In any event, there is no indication that the AOJ took any action to obtain the outstanding private treatment records from Dr. P.J. after the Veteran submitted the form. In fact, in a September 2014 supplemental SOC, the AOJ indicated that it interpreted the Veteran's statement to mean that the Veteran had submitted all treatment records from Dr. P.J. The Board notes, however, that treatment records from Dr. P.J. have not been associated with the claims file, and that, by its own terms (providing that the form is valid for 180 days), the authorization to obtain Dr, P,J. completed by the Veteran has now expired. Therefore, on remand, AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent records. On remand, the AOJ should obtain a current VA Form 21-4142 to obtain any outstanding private treatment records from Dr. P.J. Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. Also, to ensure that all due process requirements are met, and the record is complete, the AOJ should obtain and associate with the claims file any outstanding, pertinent records, to include VA treatment records. Notably, as VA treatment records dated through February 2014 have been associated with the claims file, the AOJ should obtain records of VA treatment since that date. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2014). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA (to include arranging for the Veteran to undergo further examination, if appropriate) prior to adjudicating the claim on appeal. The AOJ's adjudication of the claim should include consideration of the whether staged rating of the Veteran's disability (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Fenderson supra, is warranted. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any outstanding, pertinent records of VA evaluation and/or treatment of the Veteran, dated since February 2014. Follow the provisions of 38 C.F.R. § 3.159 as regards obtaining records from Federal facilities in procuring such records. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran a letter requesting that the Veteran provide sufficient information, and if necessary, current authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) medical records. Specifically request that the Veteran provide a current VA Form 21-4142 to obtain any outstanding private treatment records from Dr. P.J. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified-to specifically include records from Dr. P.J.-following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After accomplishing all requested action, as well as any additional action deemed warranted by the VCAA (to include arranging for the Veteran to undergo further examination, if appropriate), adjudicate the matter on appeal in light of all pertinent evidence added to the record (to particularly include all that added to the claims file since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability, pursuant to Fenderson (cited above), is warranted). 6. If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). The AOJ is reminded that this appeal has been advanced on the Board's docket. _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2014).