Citation Nr: 1318513 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 03-18 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Evaluation of service-connected left ventricular hypertrophy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from October 1975 to December 1975, and from January 1982 to June 1991. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which inter alia granted a claim for a compensable evaluation for service-connected "hypertension, left ventricular hypertrophy," to the extent that it assigned a 10 percent rating, and which (erroneously) denied a claim for service connection for left ventricular hypertrophy, claimed as secondary to hypertension (service connection was granted for left ventricular hypertrophy in November 2000). The Veteran appealed. In January 2008, the Board dismissed the issue of service connection for left ventricular hypertrophy, and remanded the issue of entitlement to an increased rating for service-connected hypertension, left ventricular hypertrophy, for additional development. In August 2010, the Board issued a decision denying the claim of entitlement to a rating in excess of 10 percent for hypertension, left ventricular hypertrophy. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in March 2011, the Court granted a joint motion for remand submitted by the parties and remanded the issue currently on appeal back to the Board for further evidentiary development. In July 2011, the Board remanded the Veteran's claim for further evidentiary development. In August 2012, the Board denied the claim for a rating in excess of 10 percent for service-connected hypertension, left ventricular hypertrophy, however, the Board determined that a separate evaluation was warranted for left ventricular hypertrophy. The Board therefore remanded the issue of the proper evaluation for left ventricular hypertrophy for additional development. The appeal 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 In August 2012, the Board denied a claim for a rating in excess of 10 percent for service-connected hypertension, and determined that the Veteran's service-connected left ventricular hypertrophy warranted a separate rating. However, the Board stated that the record was currently inadequate for assignment of such a rating, and remanded the issue of a separate evaluation for left ventricular hypertrophy for additional development. Citing 38 C.F.R. § 4.104, Diagnostic Code 7007. Specifically, the Board directed that the Veteran be afforded an examination, followed by a review of the claim. In the introductory portion of the Board's decision, it stated, "The issue of the appropriate disability evaluation to assign to the Veteran's separately rated left ventricular hypertrophy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC." In the Remand portion of the decision, the Board further stated, "The RO/Appeals Management Center (AMC) should then assign the appropriate disability evaluation (or staged evaluations) based on all of the evidence of record." In March 2013, the Veteran was afforded a VA examination of his heart which appears to conform to the Board's August 2012 instructions. However, that same month, the Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in which it did not assign a separate evaluation for the Veteran's left ventricular hypertrophy. Rather, the AMC stated that service connection was not warranted for left ventricular hypertrophy. As the requirements of the Board were not followed, remand of this claim is necessary to ensure compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, the March 2013 SSOC failed to recognize that the service connection is already in effect for left ventricular hypertrophy, and it failed to assign a separate disability evaluation for that disability. On remand, a separate disability evaluation must be assigned for the Veteran's service-connected left ventricular hypertrophy. Accordingly, the case is REMANDED for the following action: Assign a separate disability evaluation (or staged evaluations) for the Veteran's service-connected left ventricular hypertrophy, based on all of the evidence of record. The Veteran should be furnished an appropriate supplemental statement of the case (SSOC), and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for 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. 2012). _________________________________________________ JONATHAN A. KRAMER 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).