Citation Nr: 0002148 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 95-06 344A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for residuals of a left calf laceration, with sciatic neuropathy, currently evaluated at 20 percent. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.J. Bakke, Associate Counsel INTRODUCTION The veteran served on active duty from November 1963 to November 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision from the St. Petersburg, Florida, RO, that continued a noncompensable rating for a scar, residual of laceration of the left calf with left sciatic neuropathy. A rating decision in January 1982 originally granted service-connection for a scar, residuals left calf laceration, and evaluated it as noncompensable under Diagnostic Code 7805. This rating was confirmed and continued until August 1995, when the RO hearing officer increased the evaluation to 20 percent under Diagnostic Code 8520. An August 1995 rating decision implemented the increased rating, effective January 27, 1994, which is the date of the claim that led to the rating decision that was appealed. The RO indicated that the effective date was based on 38 C.F.R. § 3.157(b), and represented the earliest date upon which it could be factually ascertainable that the disability had increased in severity. By a May 1997 decision, the Board denied entitlement to an evaluation greater than 20 percent for the residuals of a left calf laceration, with sciatic neuropathy. The veteran appealed this decision to the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims, hereinafter Court). The Court, in a June 1998 order, granted a joint motion for remand, vacating the Board's decision and remanding for additional proceedings, to include a new VA examination and consideration of whether organic changes are present in the veteran's disability, such as would satisfy the criteria for a rating higher than "moderate" under 38 C.F.R. § 4.l23. REMAND In January 1999, the Board remanded the claim for further development in accordance with the Court's order. The Board notes that the veteran did not respond to the RO's request that he identify his treating physicians and provide information about his 1980 work-related injury and Workmen's Compensation Claim. Nonetheless, the Board had also specifically asked the RO to obtain records, including clinical medical treatment records, of treatment accorded him at VA Medical Centers (MCs) Fort Myers and Bay Pines, Florida. The Board further requested that the RO specifically consider whether other manifestations of the veteran's service-connected disability could warrant evaluation under separate diagnostic codes under Esteban v. Brown, 6 Vet. App. 259, 261 (1994). See also VAOPGCPREC 23-97 (July 1997). The record does not show that the RO complied with these requirements, nor does the record document why these actions were not taken. The Court has held that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand order. It is error for the Board to fail to insure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, this matter must again be REMANDED to the RO for the following action: 1. The RO should ensure that it has all obtainable VA treatment records of which it has knowledge. In particular, the RO should obtain any records under the veteran's name or identification number for hospital or outpatient treatment, including any clinical medical records, accorded him at VAMC Fort Myers and Bay Pines, Florida that are not already of record. 2. The RO should again review the veteran's claim for entitlement to an increased evaluation for the residuals of his service-connected left calf laceration and should consider whether the manifestations of the veteran's service-connected disability warrant evaluation under separate diagnostic codes under Esteban. If the decision remains in any way adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and with a reasonable period of time within which to respond. The case should thereafter be returned to the Board for further review, as appropriate. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until he is so informed. 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). 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. MARY GALLAGHER 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).