Citation Nr: 1632877 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 10-48 469 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to May 4, 2009, and 30 percent thereafter, for maxillary sinusitis and vasomotor rhinitis. REPRESENTATION Appellant represented by: Richard A. Richie, Agent ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1952 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In February 2015, the Board remanded the claim for additional development. Unfortunately, another remand is necessary. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In February 2015, the Board remanded the claim for additional development. The Board directed the AOJ to contact the two private treatment providers identified by the Veteran in the September 2014 VA Form 21-4142a (Essentia Health - Duluth Clinic and St. Mary's Hospital) and request all available records related to treatment for the Veteran's service-connected sinusitis and rhinitis. There was no response received from St. Mary's Hospital, and Essentia Health denied the AOJ's request for medical records and indicated that the September 2014 VA Form 21-4142a was not valid as it was not HIPAA compliant and did not include providers information. The Veteran was not informed of either of these responses. In a May 2016 letter, the Veteran indicated that he has provided these records twice previously. This implies that the Veteran believes that the identified records are already in the claims file. Unfortunately, this is not the case. The record currently contains a 1964 treatment record from St. Mary's Hospital and a December 1996 treatment record from the Duluth Clinic. The September 2014 VA Form 21-4142a indicated that the Veteran had been treated at these facilities as recently as September 2014. The claims file does not contain all of the identified records, and there is no indication in the record that the VA has made sufficient effort to obtain these records. Therefore, a remand is necessary to obtain these records. See Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand); see also 38 C.F.R. § 3.159(c). 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). Expedited handling is requested.) 1. Notify the Veteran that the VA has been unable to obtain the records identified in the September 2014 VA Form 21-4142a, and request that he submit the appropriate authorization and release for these records. In addition, request that the Veteran resubmit the records from the Duluth Clinic that he referenced in the May 2016 letter as having been provided to the VA twice previously. If an authorization and release is submitted, please ensure that it is fully completed before being forwarded to the provider. Make at least two attempts to obtain these records, allowing a reasonable period of time for response after each attempt. If these attempts are unsuccessful, please work with the provider to obtain these records and complete any additional development that is necessary to obtain these records. If after exhausting all reasonable efforts, including those steps described above, the VA is unable to obtain these records, send a letter to the Veteran notifying him that the VA is unable to obtain these records. Include in the letter a description of all the measures taken to attempt to obtain these records. 2. After the above development has been completed, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, furnish the Veteran and his representative/attorney a supplemental statement of the case and return the case to the Board. 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 2014). _________________________________________________ K. PARAKKAL 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).