Citation Nr: 0004842 Decision Date: 02/24/00 Archive Date: 02/28/00 DOCKET NO. 95-06 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to disability benefits under the provisions of 38 U.S.C.A. § 1151 for additional disability of the left upper extremity claimed to be the result of Department of Veterans Affairs (VA) medical treatment. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION The appellant served on active duty from June 1960 to June 1974. This case originally came before the Board of Veterans' Appeals (Board) on appeal from a September 1995 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied benefits under the provisions of 38 U.S.C.A. § 1151. In denying the claim, the RO found that the appellant had not incurred additional disability of the left arm as a result of VA Medical Center (VAMC) treatment in April 1994, or as the result of subsequent surgery in June 1994. The Board remanded the case for additional development to the RO in May 1997; the RO has now returned the case to the Board for appellate review. REMAND As recorded on the brief face from the May 1997 BVA remand, when the case originally came to the Board, there was a claims file plus an additional medical records folder. These records would, most likely, have been the original VA hospital records associated with the appellant's April 1994 surgery and his June 1994 surgery, or complete copies of these records. However, as noted by the current brief face, only the claims file was sent to the Board by the RO when it transferred the case back to Washington in August 1999. Only the claims file is currently before the Board. On two occasions the Board attempted administratively to obtain the missing records folder. No records were obtained after the first attempt; the second attempt yielded the discharge summary from the June 1994 hospitalization; the June 1994 operation report; the June 1994 pathology report; the April 1994 discharge summary; and the April 1994 operation report. These documents totaled nine pages. However, those nine pages do not constitute the whole medical record that was before the Board and the RO previously. Further, it is noted that there was a hospital records folder available to at least 1 examiner at the time of a 1998 review. Those records should be included in the record sent to the Board to assure pertinent medical evidence is on file, and to assure compliance with due process of law. Thus, while it regrets the delay involved in remanding this case yet again, the Board is at a loss as to how else to obtain the original hospital medical records (or copies thereof) previously reviewed by the RO and by the Board at the time of the May 1997 remand. Proceeding with a decision on the merits at this time would not ensure full compliance with due process. Therefore, the case is REMANDED for the following: 1. The RO is to obtain the original VA hospital records from the appellant's April 1994 surgery and his June 1994 surgery and associate them with the claims file. If the original records are needed by the hospital, there should be a complete copy of the medical records file made. Someone at the VA medical center should certify that the copies are in fact a complete set of what exists in the medical records folder. 2. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 3. After completion of the above, as well as any other appropriate development action, if records or information not previously reviewed by the RO is submitted, the RO should again adjudicate the appellant's claim on the appropriate legal basis and with consideration of all pertinent regulations. Otherwise the case should be returned to the Board as in order. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. When this development has been completed, and if the benefits sought are not granted, the case should be returned to the Board for further appellate consideration, after compliance with appropriate appellate procedures, including issuance of a supplemental statement of the case, if indicated. No action by the appellant is required until he receives further notice. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. MICHAEL D. LYON Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).