Citation Nr: 0812368 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 04-18 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to a total disability evaluation based upon unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from July 1986 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Togus, Maine (RO). In that rating decision, the RO denied entitlement to a total disability evaluation based upon unemployability due to service-connected disability (TDIU). In June 2007, the Board remanded this matter for additional development. In so doing, the Board recognized that the veteran had raised issues of entitlement to service connection for additional disabilities (facial pain, headaches, and hearing loss) The Board indicated that these matters should be adjudicated prior to addressing the claim for TDIU as their resolution could have had an impact on the decision to award TDIU. Accordingly, the Board instructed that the RO adjudicate the intertwined issues regarding service connection for facial pain, headaches and hearing loss; with the TDIU claim to be deferred pending the RO's adjudication of the claims for service connection. On remand, the RO did adjudicate the service connection claims. They did so, however, in a February 2008 supplemental statement of the case (SSOC), rather than by way of the standard rating decision usually employed to announce a decision by the agency of original jurisdiction (AOJ). In effect, the RO announced decisions denying entitlement to service connection for headaches (on the basis that new and material evidence had not been submitted to reopen a previously final decision) and for hearing loss in the SSOC. [The RO correctly noted that service connection was already in effect for a disability associated with facial pain, which thus will not be discussed further.] Under VA regulations, the AOJ will inform a claimant of appellant rights in each notification of a determination of entitlement or non-entitlement to VA benefits. 38 C.F.R. § 19.25. All questions of law and fact necessary to a decision by VA are subject to review on appeal to the Secretary of VA, in decisions made by the Board. 38 C.F.R. § 20.101. An appeal to the Board consists of a timely filed notice of disagreement to a decision of the agency of original jurisdiction (RO) and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Only after this procedure will an appeal to the Board be perfected. With the February 2008 supplemental statement of the case, the RO announced a decision to deny service connection for headaches and for hearing loss. At no time prior to that statement of the case did the RO notify the veteran in writing of its decision on these claims; or of his appellant rights with respect to them. The law requires that a veteran and his representative will be notified in writing of decisions affecting the payment of benefits or granting relief (generally via a rating decision). All notifications will advise the veteran of the reason for the decision, the effective date of the decision, the right to a hearing, and the right to initiate an appeal by filing a Notice of Disagreement. Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered. 38 C.F.R. § 3.103(f) (2005). In sum, at no time prior to the February 2008 SSOC did the RO notify the veteran in writing of its decision on his claim for entitlement to service connection for headaches or for hearing loss. The issues involving entitlement to service connection for headaches and hearing loss must be returned to the AOJ for the RO to issue a proper rating decision to cure the procedural defects, including to provide notice of appellant rights including the right to initiate an appeal by filing a Notice of Disagreement. The issue on appeal, involving entitlement to a TDIU, 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 The Board's review of the claims file reveals that further RO action is required in properly developing the veteran's claims on appeal. In June 2007, the Board remanded the case to the RO for development. The Board instructed the RO to request, with the veteran's assistance, copies of pertinent treatment records from Takeo Kawamura, M.D., and Henry H. Atkins, II, M.D. Subsequently, after receiving notice from the RO on this matter, the veteran responded that he had no further information or evidence to give VA. Nevertheless, he also submitted a VA Form 21-4142, Authorization and Consent to Release Information to the VA. With that form, the veteran authorized the Stillwater Family Practice of Bangor, Maine, to release records to VA. Research of internet sources show that Dr. Atkins and possibly Dr. Kawamura are associated with that practice. Review of the claims files reflects that after that, however, VA did not request any records from that practice. The United States Court of Appeals for Veterans Claims has held that the RO's compliance with the Board's Remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the case must be remanded to the RO for compliance with the June 2007 Remand instructions. Accordingly, the case is REMANDED for the following action: 1. The RO should request medical records regarding treatment of the veteran from the Stillwater Family Practice, of 78 Ridgewood Drive, Bangor, Maine 04401, to specifically include any records of treatment by Drs. Takeo Kawamura, and/or Henry H. Atkins, II. See the veteran's completed Form 21-4142, dated in February 2008. 2. The RO should send the appellant written notice that addresses the reasons and bases for the denial of the claims of entitlement to service connection for (1) headaches and (2) hearing loss. Such notice should include required information on the appellant's right to file an appeal within one year from the date of mailing of the notice of the adverse determination. Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 and Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO should return the matters to the Board only if the appellant initiates and completes an appeal in accordance with the provisions of 38 U.S.C.A. § 7105 (West 2002). The RO should not return the case to the Board if no appeal is initiated and perfected as to the claims of entitlement to service connection for (1) headaches and/or (2) hearing loss. 3. Subsequently, following any additional development deemed appropriate by the RO, the RO should readjudicate the claim on appeal. If a determination remains unfavorable to the appellant, the RO should furnish the veteran and his representative a supplemental statement of the case and afford the applicable time period during which the veteran can respond. Thereafter, the RO should return the case to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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) (2007).