Citation Nr: 0003898 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 96-12 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of a leaky heart valve, and residuals of the amputation of four toes, claimed to have resulted from treatment at VA medical facilities. REPRESENTATION Appellant represented by: To be clarified ATTORNEY FOR THE BOARD S. J. Janec, Associate Counsel INTRODUCTION The veteran had active military service in the United States Marine Corps from July 1948 to March 1952. This matter comes before the Board of Veterans' Appeals (Board) from a July 1995 rating decision of the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied benefits under 38 U.S.C.A. § 1151 for residuals of a leaky heart valve, and residuals of the amputation of four toes, claimed to have resulted from treatment at VA medical facilities. REMAND Upon preliminary review of this matter, the Board notes that the veteran completed a VA Form 21-22, "Appointment of Veterans Service Organization as Claimant's Representative," in favor of the Veterans of Foreign Wars (VFW) in October 1991. Subsequently, in a January 1992 letter, P. Alex Lipski, an attorney, related that he was representing the veteran "in regard to a medical problem" and requested copies of the veteran's VA hospitalization records. In an August 1992 letter to Mr. Lipski, the RO acknowledged Mr. Lipski's communication, and noted that his declaration of representation was not, by its terms, limited to any particular claim or issue. The RO further noted that the only action pending was the veteran's claim for benefits under 38 U.S.C.A. § 1151, and assumed that Mr. Lipski's representation was limited to that claim. It appears that no further correspondence was received from the attorney, and copies of relevant records issued by the RO were subsequently furnished to the VFW, not Mr. Lipski. In addition, the December 1999 Informal Hearing Presentation was provided by the VFW. The law permits an attorney to represent a claimant as to a particular issue, even where there is a general appointment of a service organization in effect. See 38 C.F.R. §§ 14.629(c), 14.631(c)(1). It appears in this case that a private attorney, Mr. Lipski, was, at some point, operating as the veteran's representative with respect to the issue now before the Board, and we see no affirmative indication that the attorney withdrew from the case. This is not entirely clear, but considerations of due process mandate our careful adherence to the appellant's desires wth regard to representation. Accordingly, clarification of the veteran's chosen representative on the issue before the Board at present should be obtained. In addition, a close review of the record indicates that there are relevant VA treatment reports that have not been associated with the veteran's claims file. In the July 1995 rating decision, the RO referred to outpatient treatment reports from the Syracuse, New York, VA Medical Center (VAMC), dated in October 1990, November 1990, December 1990, and January 1991. The rating decision also referred to hospitalization reports from the Buffalo, New York, VAMC, dated from January 29, 1991, to March 13, 1991. Furthermore, in an October 1994 letter to the Syracuse VAMC, a supervisor from the Buffalo RO related that two volumes of VAMC medical records and one volume of administrative records were enclosed with the letter. At present, the record before the Board includes one claims folder (with the above-noted medical evidence missing) and an envelope filled with private medical records. Since it appears that the record is incomplete, the case must be returned to the RO for corrective action. In view of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he clarify his chosen representative for this appeal, and, if necessary, submit another VA Form 21-22 in favor of the service organization of his choice, or a power of attorney in favor of his attorney. 2. The RO should obtain copies of all of the veteran's treatment records (inpatient and outpatient) from the Syracuse VAMC and the Buffalo VAMC that have not already been associated with the veteran's claims file (including the ones noted above) and include them in the record. Thereafter, the case should be returned to the Board. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified; however, he is advised that he has the right to submit additional evidence and argument on the matter that has been 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. ANDREW J. MULLEN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a final 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 final decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).