Citation Nr: 0614618 Decision Date: 05/18/06 Archive Date: 05/31/06 DOCKET NO. 03-17 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for sarcoidosis, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable rating for vascular headaches. REPRESENTATION Appellant represented by: South Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD W.T. SNYDER, Associate Counsel INTRODUCTION The veteran had active service from September 1979 to August 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran's substantive appeal reflects that she requested a Board Hearing. A July 2003 Board letter informed the veteran that her hearing was schedule for November 5, 2003. In a July 2003 statement, she withdrew her request for a hearing. In the July 2003 statement, the veteran requested representation by a different representative, but did not indicate that she was revoking her current representative. A July 2004 RO letter informed the veteran that she must submit another VA Form 21-22 to change her representative and provided a form for her use. The claims file reflects no record of that letter having been returned as undelivered or of the veteran having submitted another Form 21-22. Thus, the Board deems the representative currently of record to be the authorized representative. See 38 C.F.R. § 20.601 (2005). In September 2004, the Board remanded the case to the RO for additional development. The case has once again been submitted to the Board for appellate review. This appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. REMAND Although further delay is regrettable, remand is warranted to comply with prior remand instructions with regard to the sarcoidosis claim, and for the RO to consider newly submitted evidence in the first instance. Following the re-certification of the veteran's appeal to the Board in January 2006, additional pertinent private and VA treatment records were forwarded to the Board. She also included authorization forms for Roper Main Medical Records and Berkley Family Practice. No waiver of RO jurisdiction over this evidence was provided. A March 2006 letter advised the veteran regarding the consequences of submitting evidence without a waiver, and asked the veteran whether she wished to waive RO jurisdiction. To date, no response has been received. Since the veteran has not submitted a waiver of RO jurisdiction over those records, and those records show complaints or treatment for headaches, sarcoidosis, and hypertension. this claim must be remanded so that these records can be reviewed by the RO in the first instance. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). It also appears from a review of the treatment records submitted that there may be additional private and VA treatment records pertinent to the veteran's claim that have not been associated with the claims folder. Thus, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Turning to the sarcoidosis claim, the Board remanded the veteran's appeal of the evaluation of her sarcoidosis for another examination, appropriate diagnostic tests, to include pulmonary function tests which reflected all values contained in the applicable rating criteria, and medical interpretation of her pulmonary function tests. The claims file reflects the reports of the veteran's stress test, chest X-rays, and her myocardial perfusion nuclear medicine study. An April 2005 report reflects that a physician interpreted the veteran's pulmonary function tests as having shown mild obstruction and a positive bronchodilator response. The claims file, however, does not contain the pulmonary function tests report which reflects the required values, and the examiner at the 2005 examination did not comment on the pulmonary function tests findings. The veteran was granted service connection for sarcoidosis in 1987. The rating criteria for respiratory disorders were changed in October 1996. A March 1998 rating decision changed the Diagnostic Code for the veteran's evaluation. The July 2002 rating decision reflects that her sarcoidosis is rated analogously under hyphenated Diagnostic Code 6899- 6846. See 38 C.F.R. § 4.27 (A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation). The Board notes the examiner's findings and opinion at the April 2005 examination that the veteran manifested no clinical symptoms of sarcoidosis, and that she is not currently diagnosed as having sarcoidosis. The Board also notes, however, that the applicable rating criteria for sarcoidosis require that active disease or residuals such as chronic bronchitis are to be rated under the appropriate Diagnostic Code. See 38 C.F.R. § 4.97, Diagnostic Code 6846. Moreover, the physician who reviewed the 2005 pulmonary function tests results observed that they showed a mild obstruction. The Court of Appeals For Veterans Claims has held that, as a matter of law, the veteran is entitled to compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In light of the absences of the pulmonary function tests report and the examiner's explanation of those results, where applicable, the Board is constrained to find that the 2004 remand was not complied with as it related to the appeal of the sarcoidosis evaluation. Accordingly, the case is REMANDED for the following: 1. The RO will obtain the report of the 2005 pulmonary function tests and associate it with the claims file. The RO should refer to the 2004 remand to determine the information required of the pulmonary function tests. If the report does not reflect all required measurements, the RO should arrange for the veteran to be tested again. 2. The RO should obtain the treatment records from Roper Main Medical Records since January 2006. The RO should also obtain the treatment records from Dr. Gordon Wilhoit since June 2005. After securing a current release form, if the ones provided in February 2006 are no longer valid, the RO should obtain these records. 3. VA treatment records from the VA medical center in Charleston, South Carolina since February 2006 should also be obtained. 4. After all of the above is completed, the RO shall review all of the evidence obtained since the last Supplemental Statement of the Case (SSOC) in light of all the other evidence of record and reevaluate the claims on appeal. To the extent that any benefit sought on appeal remains denied, the RO shall issue the veteran an SSOC and, if all is in order, return the case to the Board for further appellate review. 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. 2005). ____________________________________________ K. A. BANFIELD 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) (2005).