Citation Nr: 0720681 Decision Date: 07/11/07 Archive Date: 07/25/07 DOCKET NO. 02-05 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The veteran had active service from January 1957 to January 1960. This claim comes before the Board of Veterans' Appeals (Board) on appeal from June and September 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which denied the benefit sought on appeal. The Board remanded the veteran's claim in January 2005. Thereafter, in a decision dated February 28, 2006, the Board denied the veteran's claim. The Board vacated that decision in June 2006 because the veteran's attorney was not provided with a copy of the June 22, 2005, duty to assist letter sent to the veteran. Accordingly, the case came before the Board in July 2006, at which time it was remanded to cure this defect and to provide the veteran and his representative with an opportunity to complete release forms so that treatment records from identified treatment sources could be obtained. As will be further explained herein, regrettably, another remand is required in this case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As was pointed out by the Board in a remand issued in July 2006, although the RO mailed the veteran a letter dated June 22, 2005, which provided him with the notices required by the Veterans Claims Assistance Act of 2000 (VCAA), his attorney was not mailed a copy of such a letter. The Board therefore directed that pursuant to 38 U.S.C.A. § 5103(a), the veteran and his attorney should both be mailed a new VCAA notice letter that accurately informs the veteran and his attorney of the information and evidence necessary to prove his claim for service connection for hypertension. It was also pointed out that, in the March 10, 2006, "Motion to Reconsider Based on Denial of Due Process," the veteran's attorney argued that the Board had not attempted to obtain the records of a Dr. B.A.M. Although the June 22, 2005, letter asked the veteran to complete a release form for Dr. B.A.M, the letter only referred to Dr. B.A.M. by his initials, not by his full name. In the July 2006 remand, the Board also requested that the AMC should take the appropriate steps to obtain the records from Dr. B.A.M, but should refer to him by his full name in all correspondence with the veteran. (To ensure the privacy of the veteran, the Board does not provide the full names of people associated with the veteran including his family members, friends, doctors, or others whose reference might identify the veteran.) The Board explained that it was not necessary for the RO/AMC to use initials in letters sent to the veteran (or his attorney or representative) and noted that this practice may be confusing to the veteran. In the July 2006 remand, the Board also observed that in addition to Dr. B.A.M, the June 2005 duty to assist letter requested that the veteran complete a release form for four other health-care providers that the RO only identified with initials: Dr. B.G., Dr. M., Dr. J.K., and F.T., DO. The Board specifically requested that when the RO issued the VCAA letter discussed above, it should again request that the veteran submit the appropriate release forms for those health-care providers, but when it does so, it should list the physicians by names, not just by their initials. For identification purposes, it was pointed out that Dr. B.A.M. submitted a letter dated May 2002, F.T, D.O., submitted a letter dated August 2001, and the veteran referred to Drs. B.G., M., and J.K. in an authorization form dated May 2001. A review of the documents added to the file subsequent to the remand issued by the Board in July 2006, reflects that the record contains a duty to assist letter dated August 1, 2006, which was addressed to the veteran and was also issued to his representative. In that letter, records from the aforementioned health-care providers were requested. The veteran was asked to complete and return a separate VA Form 21-4142, Authorization for Release of Information, for each listed health care provider. The Board notes that no authorization forms were received subsequent to the August 2006 duty to assist letter. However, unfortunately, in the duty to assist letter issued in August 2006, the doctors/private health-care providers were identified by their initials only, contrary to the Board's specific instructions in the July 2006 remand. It is not clear whether this might explain the failure of the veteran and his representative to complete and return any of the authorization forms. The United States Court of Appeals for Veterans Claims (Court) has underscored the role of agencies of original jurisdiction in carrying out the instructions in Board Remands. As noted by the Court, the duties of the agencies of original jurisdiction in this regard are mandatory, and, furthermore, the Board of Veterans' Appeals is obligated to insure compliance with the instructions in Remands. Stegall v. West, 11 Vet. App. 268 (1998). Therefore pursuant to Stegall, the veteran's claim must be remanded so that another duty to assist letter may be issued to the veteran and his representative. The letter should request that the veteran complete a release form for the five aforementioned health-care providers that the RO has previously only identified with initials: (1) Dr. B.A.M (2) Dr. B.G., (3) Dr. M., (4) Dr. J.K., and (5) F.T., DO (doctor of osteopathy). However, in this letter these health-care providers should be addressed by their names (at least by last name), not just by their initials. As was previously pointed out by the Board, for identification purposes the names of these doctors/providers can be found in various documents of record: Dr. B.A.M. submitted a letter dated May 2002; F.T, D.O., submitted a letter dated August 2001; and the veteran referred to Drs. B.G., M., and J.K. in an authorization form dated May 2001. Accordingly, this case is remanded for the following actions: 1. Send the veteran and his attorney a letter requesting that the veteran provide any evidence in his possession that pertains to his claim. Several VA Forms 21-4142, Authorization for Release of Information, should be enclosed and the letter should request that the veteran complete and return appropriate release forms for: (1) Dr. B.A.M; (2) Dr. B.G.; (3) Dr. M.; (4) Dr. J.K., and (5) F.T., DO. The letter should refer to the physicians by their names, not by their initials. 2. Following completion of any development, the RO is requested to adjudicate the issue of entitlement to service connection for hypertension. If the benefits sought on appeal remain denied, issue a Supplemental Statement of the Case (SSOC), and afford the appellant time in which to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2006).