Citation Nr: 0001039 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 93-26 385 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky THE ISSUE Evaluation of an occipital scalp laceration scar. REPRESENTATION Appellant represented by: Jeffrey J. Wood, Attorney at Law WITNESSES AT HEARINGS ON APPEAL The veteran and his wife ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from January 1967 to December 1969. By a decision entered in September 1991, the RO, among other things, granted service connection for an occipital scalp laceration scar, and assigned a zero percent (noncompensable) evaluation therefor. The veteran appealed the RO's determination to the Board of Veterans' Appeals (Board), and the Board entered a decision in November 1995 which, in pertinent part, denied a compensable rating for that disability. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court), and the parties to the appeal filed a Joint Motion for Remand and to Stay Further Proceedings (joint motion) in October 1996. In the joint motion, the parties agreed that the Board's decision as to the scalp laceration scar should be vacated, and the matter remanded, because the Board had not fulfilled its duty to assist the veteran in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991). Specifically, the parties agreed that the Board should undertake efforts to obtain any records in the possession of a private physician, K. D. Gibson, D.O., relating to the veteran's treatment for a scalp laceration scar. The parties also agreed that, if, after obtaining those records, the current state of the veteran's condition was not revealed, a medical examination should be conducted which, among other things, took into account the records of prior medical treatment, so that the evaluation of the claimed disability would be a fully informed one. By an order dated in October 1996, the Court granted the joint motion and remanded the matter to the Board. Thereafter, in April 1997, the Board remanded the matter to the RO for development consistent with the Court's order. In its prior dispositions of this matter, the Board framed the issue here in question in terms of the veteran's entitlement to an increased rating. More recently, however, the Court has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the present issue was placed in appellate status by a notice of disagreement expressing dissatisfaction with an original rating, the Board has re- characterized the issue on appeal as set forth on the title page of this preliminary order. The Board notes that the veteran has had two Board hearings on this issue during the course of the present appeal. The first such hearing, held in March 1994, was conducted by one Member of the Board, and the second hearing, held in June 1999, was conducted by another. Because the law requires that a Member who conducts a hearing on appeal participate in the Board's final determination, see 38 U.S.C.A. § 7107(c) (West Supp. 1999) and 38 C.F.R. § 20.707 (1999), the appeal of this issue is now being considered by an expanded panel of the Board. The Board also notes that the veteran has perfected an appeal to the Board of issues other than the evaluation of an occipital scalp laceration scar. However, the record contains a Declaration of Representation, dated in February 1997, reflecting that the veteran's attorney is currently representing the veteran as to the scalp laceration scar only. Consequently, the remaining issues developed for appeal will be the subject of a separate decision. REMAND When the Board remanded this issue to the RO in April 1997, it requested the RO, among other things, to have the veteran scheduled for a VA examination for purposes of assessing the severity of his service-connected scalp laceration scar. Consistent with the Court's order on the matter, the Board indicated that the veteran's claims folder was to be made available to the examiner for review prior to the examination. Unfortunately, the requested development has not been fully completed. Although the record shows that the requested examination was conducted in November 1997, it is clear that the claims folder was not made available for the examiner's review. In the report of the examination, the examiner specifically indicated that "[n]o C-file was sent for further review." It appears that the records currently in the file are fairly uniform in their assessment of the veteran's scalp laceration scar. Consequently, it is somewhat difficult to discern how a review of the record by an examiner will contribute further to an analysis of the veteran's claim. However, it appears that the Court, by granting the joint motion in this case, mandated that any further examination of the veteran's scalp laceration scar include a review of the claims folder. As noted above, the parties in their joint motion specifically indicated that an examination of the veteran's scalp laceration scar, if conducted, should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Thus, once the Board determined that a new examination of the veteran was necessary, as it implicitly did in its April 1997 remand, a review of the claims folder by the examiner was a mandatory, rather than a discretionary, act. The Court has held that a remand by either the Court or the Board confers on the appellant, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court has indicated, moreover, that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and the fact that the development sought by the Board in this case has not been fully completed, another remand is now required. 38 C.F.R. § 19.9 (1999). For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for his occipital scalp laceration scar that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). The RO should make an effort to ensure that all relevant records of VA treatment have been obtained for review. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. After the above development has been completed, the veteran should be scheduled for a VA examination to assess the severity of his occipital scalp laceration scar. The veteran's claims folder, and a copy of this remand, should be made available to, and reviewed by, the examiner. All appropriate tests and studies should be conducted. The examiner should provide a detailed description of the scar, and should indicate whether the scar is tender and painful on objective demonstration, whether it is poorly nourished and subject to repeated ulceration, or whether it is otherwise causative of limitation of function. If possible, photographs of the scar should be taken and included with the examination report. The examiner should present all findings, and the reasons and bases therefor, in a clear, comprehensive, and legible manner on the examination report. 3. The RO should review the report of the examination to determine whether it complies with the requirements of the foregoing paragraph. If it does not, the report should be returned as inadequate, and arrangements should be made to ensure full compliance with the remand instructions. 4. The RO should thereafter take adjudicatory action on the veteran's claim for a compensable rating for an occipital scalp laceration scar. In so doing, the RO should give consideration to the assignment of "staged ratings," in accordance with the principles set out in Fenderson v. West, 12 Vet. App. 119 (1999). If any benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs 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. LAWRENCE M. SULLIVAN MARK F. HALSEY Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals N. R. ROBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (1999).