Citation Nr: 1610923	
Decision Date: 03/17/16    Archive Date: 03/23/16

DOCKET NO.  09-35 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. 
§ 1151 for the residuals of radiation therapy for rectal cancer, to include kidney failure/small bowel obstruction, as well as pain and discomfort, claimed as due to negligence on the part of treating VA medical personnel.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel




INTRODUCTION

The Veteran served on active duty from October 1969 to October 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

The Veteran requested a hearing in his September 2009 substantive appeal.  He was scheduled for a February 2012 hearing, but failed to appear.  He has not asserted good cause for missing the hearing, and the hearing request is considered withdrawn.  38 C.F.R. § 20.702(d).

In April 2014, the Board remanded the appeal for additional development.  The appeal is again remanded to the Agency of Original Jurisdiction (AOJ). 


REMAND

The complete records involving the Veteran's April 1992 VA hospital admission for abdominal perineal resection (APR) for rectal carcinoma are not in the claims folder.  Nor are there any records of the Veteran's prior April 16, 1992 gastroenterology consult, his April 20, 1992 colonoscopy, his scheduled follow-up in the General Surgery Clinic on May 12, 1992, or his radiation and chemotherapy treatment following his April 1992 surgery (noted as occurring from August 10 to September 23, 1992 in the August 2011 VA examination report).  In this regard, the June 2014 VA examiner notes that he "reviewed records in [Computerized Patient Record System] (CPRS) that reference patient having an APR and subsequent radiation and chemotherapy."  The Board does not have access to CPRS.  Accordingly, on remand, these pertinent records, as well as any consent form relating to the 1992 surgery, must be obtained.


Accordingly, the case is REMANDED to the AOJ for the following action:

1.  Obtain and associate with the Veteran's electronic claims file all medical records located in the Computerized Patient Record System (CPRS) that have not yet been associated with the claims file, to specifically include:

(a) the April 16, 1992 gastroenterology consult;
(b) the April 20, 1992 colonoscopy report;
(c) complete records from the Veteran's hospitalization from April 16, 1992 to May 1, 1992;
(d) any consent form relating to the April 16, 1992 surgery;
(e) the scheduled follow-up in the General Surgery Clinic on May 12, 1992; and
(f) all records of radiation and chemotherapy treatment following the April 1992 surgery (noted as occurring from August 10 to September 23, 1992 in the August 2011 VA examination report).  

2.  Then, after taking any additional development deemed necessary, readjudicate the claim.  If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given the opportunity to respond thereto.

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 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. 2014).



____________________________________________
S. BUSH
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) (2015).