Citation Nr: 0006433 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-13 988A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland THE ISSUE The propriety of the initial noncompensable evaluation assigned for the service-connected basal cell carcinoma secondary to mustard gas exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Julie L. Salas, Associate Counsel INTRODUCTION The veteran served on active duty from March 1945 to July 1946. This matter initially came to the Board of Veterans' Appeals (Board) on appeal of a June 1998 rating decision of the RO. In December 1999, the Board remanded this matter for additional development of the record. REMAND As noted hereinabove, in December 1999, the Board remanded this matter for additional development of the record, to include a VA skin examination to determine the current nature and extent of the veteran's service-connected basal cell carcinoma secondary to mustard gas exposure. Although there is evidence in the veteran's claims folder that an examination was requested, there is no indication as to whether such examination was actually held. Furthermore, the claims folder was forwarded back to the Board without issuance of a Supplemental Statement of the Case. The RO is advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans Claims (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where compliance with the remand orders of the Board or the Court has not been achieved, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the veteran must be afforded another examination so as to determine the current nature and extent of the service-connected basal cell carcinoma secondary to mustard gas exposure. In addition, all medical records should be obtained for review. Furthermore, as previously noted, the Court recently recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service- connected condition. Fenderson v. West, 12 Vet. App. 119 (1999). In the case of an initial rating, separate ratings can be assigned for separate periods of time-a practice known as "staged" rating. The RO, following completion of the necessary development, should consider whether "staged" rating is warranted here. Accordingly, the case must be REMANDED to the RO for the following actions: 1. The RO should take appropriate steps to request that the veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for the service-connected basal cell carcinoma since August 1997. After securing the necessary release, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran in response to this request and associate them with the claims folder. 2. The veteran should be afforded a VA skin examination in order to determine the nature and extent of the service- connected basal cell carcinoma secondary to mustard gas exposure and any residuals thereof. The claims folder must be made available to the examiner prior to the examination. All indicated tests must be performed. The examiner should elicit from the veteran and record a detailed clinical history regarding the condition and any symptoms attributable thereto. Detailed clinical findings must be recorded. The examiner should comment as to the location, extent, repugnancy and disabling character of the scars from his basal cell carcinoma, if any. The examiner should also comment on whether the scars result in bleeding or are otherwise symptomatic. 3. After completion of all requested development, the RO should again review the veteran's claim on the basis of all the evidence of record. This should include reviewing, and responding to, the recently submitted records. The RO must also consider whether a staged rating is applicable, consistent with Fenderson v. West. If any action taken remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case and afforded a reasonable opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran 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). In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. 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. STEPHEN L. WILKINS 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).