Citation Nr: 1318361 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-00 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for hypothyroidism. REPRESENTATION Appellant represented by: Florida Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from April 1976 to August 1977, and from September 2005 to June 2006. This case initially came before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in September 2012, at which time it was remanded for additional development. The case is now, once more, before the Board for appellate review. Finally, for reasons which will become apparent, this appeal is once again being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND A review of the record in this case raises some question as to the current severity of the Veteran's service-connected hypothyroidism. In that regard, at the time of the Board's prior remand in September 2012, it was noted that, according to the Veteran, she was suffering from symptoms of fatigability, constipation, and mental sluggishness such that she should be assigned a 30 percent evaluation for service-connected hypothyroidism. Further noted was that the Veteran had last undergone a VA examination for compensation purposes in 2008, and should therefore be afforded an additional VA examination prior to a final adjudication of her claim. To that end, at the time of the aforementioned remand, it was requested that the Veteran be scheduled for an additional VA examination of her thyroid gland, to include a detailed review of her pertinent medical history and current complaints, as well as the nature and extent of her service-connected hypothyroidism. Further review of the record would appear to indicate that the Veteran was never, in fact, scheduled for the aforementioned examination. While in October 2012, the Veteran underwent multiple examinations for various other disabilities, none of those examinations involved a specific evaluation of her thyroid function. Significantly, a remand by the Board (in this case, for an examination) confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders. Moreover, a remand by the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to insure compliance with the terms of the remand, either personally, or as head of the Department. See Stegall v. West, 18 Vet. App. 268, 271 (1998). Accordingly, in light of the aforementioned, the case is once again REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment record, subsequent to November 2012, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and her representative are to be informed of any such problem. 2. The Veteran should then be afforded an additional VA thyroid examination in order to more accurately determine the current severity of her service-connected hypothyroidism. The Veteran is hereby notified that it is her responsibility to report for the examination, and to cooperate in the development of her claim. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of her claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to her last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examination, and in accordance with the latest worksheets for rating diseases of the thyroid gland, the examiner is to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of her service-connected hypothyroidism. In particular, the examiner should specifically comment regarding the presence (or absence) of fatigability, constipation, and/or mental sluggishness attributable to the Veteran's thyroid dysfunction. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records had been reviewed. 3. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for an initial evaluation in excess of 10 percent for service-connected hypothyroidism. Should the benefit sought on appeal remain denied, the Veteran and her representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in March 2013. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. 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. 2012). _________________________________________________ MICHAEL D. LYON 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).