Citation Nr: 1315019 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 03-21 634A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diverticulosis coli. 2. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for alcohol abuse. 3. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 4. Entitlement to a rating in excess of 10 percent for a back disability. 5. Entitlement to an effective date earlier than November 25, 2011, for the grant of service connection for a back disability. 6. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1978 to May 1985. The matter of service connection for diverticulosis coli is before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). In December 2008, the Board remanded the case for additional development. In March 2011, the Board issued a decision that denied the Veteran's claim of service connection for diverticulosis coli. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012, the Court issued a memorandum decision which vacated the Board's decision with respect to that issue, and remanded the claim to the Board for further action consistent with the Court's memorandum decision. The matters of whether new and material evidence has been submitted to reopen the claim of service connection for alcohol abuse, entitlement to a rating in excess of 70 percent for PTSD, entitlement to a rating in excess of 10 percent for a back condition, entitlement to an effective date earlier than November 25, 2011, for the grant of service connection for a back condition, and entitlement to a TDIU rating are before the Board on appeal from a June 2012 rating decision of the RO. The Veteran had been represented by a private attorney. In March 2013, that attorney withdrew as his representative (indicating that she could no longer work with the VA system). The Veteran was advised by letter in March 2013 that he could appoint another representative; he has not done so. Accordingly, the Board finds that the Veteran is pursuing this appeal pro se. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present, there are no additional documents pertinent to this appeal in Virtual VA. The issues of entitlement to an increased rating and earlier effective date for asthma with allergic reaction and sinusitis, and entitlement to service connection for erectile dysfunction, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. REMAND Diverticulosis Coli Claim In November 2010, the Veteran submitted three different copies of VA Form 21-4142, authorizing VA to obtain his outstanding treatment records as follows: (1) from the VA hospital in Dallas, Texas from "2008 - 2010" for a variety of ailments including diverticulosis; (2) from the VA hospital in Temple, Texas from "2007 - present" for a variety of ailments including diverticulosis and stomach aches; and (3) from the VA hospital in Waco, Texas from "2008 - present" for his stomach. The Board finds that all records pertaining to the Veteran's diverticulosis coli treatment are critical evidence that must be considered in the adjudication of his claim. Therefore, all of the aforementioned records of VA treatment have a bearing on the instant claim and must be secured. Alcohol Abuse, PTSD, Back Condition, and TDIU Claims In a July 2012 written statement, the Veteran expressed disagreement with the June 2012 rating decision. The RO has not issued a statement of the case (SOC) addressing these issues, as required, and the Board must remand these matters for such action. See Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that it will have full jurisdiction in these matters only in the Veteran perfects his appeal by filing a timely substantive appeal after the SOC is issued. Accordingly, the case is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should secure for the record complete copies of the clinical records of all VA treatment the Veteran has received for diverticulosis coli, to specifically include: (1) from the VA hospital in Dallas, Texas from 2008 to 2010; (2) from the VA hospital in Temple, Texas from 2007 to the present; and (3) from the VA hospital in Waco, Texas from 2008 to the present. If any records requested are unavailable, the reason must be explained for the record. 2. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by additional evidence received, and then review the record and readjudicate the claim of service connection for diverticulosis coli. If it remains denied, the RO should issue an appropriate supplemental SOC (SSOC) and afford the Veteran the opportunity to respond. The case should then be returned to the Board. 3. The RO must also issue a SOC addressing the following issues: whether new and material evidence has been submitted to reopen a claim of service connection for alcohol abuse; entitlement to a rating in excess of 70 percent for PTSD; entitlement to a rating in excess of 10 percent for a back disorder; entitlement to an effective date earlier than November 25, 2011, for the grant of service connection for a back disorder; and entitlement to a TDIU rating. He should be afforded the appropriate period of time to file a substantive appeal. These issues are to only be returned to the Board if a timely substantive appeal is filed following issuance of the SOC. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2012). _________________________________________________ GEORGE R. SENYK 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) (2012).