Citation Nr: 21029905 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 19-09 014 DATE: May 17, 2021 REMANDED Entitlement to a compensable rating for right hand residuals of cellulitis and erysipelas is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from April 1945 to July 1946. This matter is before the Board of Veterans' Appeals (Board) on remand from the U.S. Court of Appeals for Veterans Claims (CAVC). The matter was initially before the Board on appeal of a February 2018 rating decision. In May 2019, the matter was remanded for additional development. A January 2020 Board decision denied entitlement to a compensable rating for right hand residuals of cellulitis and erysipelas. The Veteran appealed that decision to the CAVC. A December 2020 CAVC Order vacated the Board's January 2020 decision that denied a compensable rating for right hand residuals of cellulitis and erysipelas and remanded it to the Board for further development and re-adjudication consistent with terms of a December 2020 Joint Motion for Remand (JMR). In the December 2020 JMR, the parties agreed that vacatur and remand was required because the Board failed to ensure that the Veteran was afforded a hearing on his increased rating claim pursuant to his request, and because VA had not satisfied its duty to assist by obtaining the Veteran's private treatment records. The parties (VA General Counsel and the Veteran's attorney (who appeared for the CAVC appeal only) agreed that the Board failed to ensure regulatory compliance with respect to Veteran's right to a hearing before the Board. His initial VA Form 9 for this appeal, filed on April 1, 2019 by a veteran's service organization (VSO) representative, did not seek a Board hearing. The appeal was certified on April 4, 2019 as declining a hearing. On April 9, 2019, the Veteran filed another (his own) VA Form 9, without representation, seeking a hearing at a local VA office. This second Form 9 was not addressed by the Regional Office (RO), or by the Board in its May 2019 decision remanding the claim for a new examination, or in the January 2020 decision. No record of a hearing appears in the file. The Veteran was entitled to request a personal hearing within 90 days of the certification of his appeal. See 38 C.F.R. §§ 20.602, 20.1305. The parties further agree that the Board failed to ensure that VA's duty to assist was satisfied with respect to collection of relevant private treatment records. As part of the Veteran's claim of service connection for this disability, VA sent him a notice letter pursuant to 38 U.S.C. § 5103(a)(1) in April 2014. The Veteran, through his VSO representative, returned an authorization for release of information in May 2014 for his dermatology treatment records from Avera, a private medical group, beginning in January 1960. He also provided four pages of records from Avera related to that treatment. The only other Avera record in the file is a March 2018 letter from one of the physicians, submitted by the Veteran along with a notice of disagreement of that same date. VA treatment records throughout the claims file repeatedly reference Avera and indicate that certain Avera records have been scanned, but dermatology records do not appear in the file. Therefore, remand is necessary for the Board to ensure that VA obtains the Veteran's dermatology records from Avera, including new authorization if necessary. See 38 C.F.R. §§ 3.159(c)(1), (e)(2). The matter is REMANDED for the following: 1. Ask the Veteran to submit authorizations for VA to obtain private treatment records from any (all) private providers of treatment his right hand residuals of cellulitis and erysipelas (any such records not already associated with the claims file), to specifically include dermatology treatment records from Avera, a private medical group, beginning in January 1960. Secure the complete records of all such evaluations and/or treatment from the provider(s) identified. If any private records identified are not received pursuant to a VA request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private medical records are received. 2. Then return the record to the Board, so that the Veteran can be scheduled for the videoconference Board hearing he has requested addressing the issue of entitlement to a compensable rating for right hand residuals of cellulitis and erysipelas. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bayles, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.