Citation Nr: 1328448 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 04-05 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for bipolar disorder. 2. Entitlement to an initial compensable disability rating for service-connected sensorineural hearing loss of the left ear. (The appellant's claim of service connection for hypertension is the subject of a separate Board decision.) REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The appellant served in the Puerto Rico Army National Guard (PRARNG) wherein he had periods of active duty for training and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2003 and April 2010 rating decisions by the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico. In June 2003, the RO, in pertinent part, denied service connection for bipolar disorder. In April 2010, the RO granted service connection for sensorineural hearing loss of the left ear and assigned an initial noncompensable disability rating, effective as of April 4, 2002. The appellant has disagreed with the denial of service connection and with the assigned initial disability rating for the service-connected left ear sensorineural hearing loss. In July 2006, the appellant testified at a personal hearing over which a Decisions Review Officer presided while at the RO. A transcript of that hearing has been associated with the claims file. In May 2009, the Board denied service connection for bipolar disorder and for sensorineural hearing loss of the left ear, and the appellant subsequently appealed that decision to the United States Court of Appeals for s Claims (Court). In March 2010, the appellant, through his attorney, and the Secretary, VA, entered into and submitted a Joint Motion to Remand and Vacate the Board Decision (Joint Motion). In an Order dated that same month, the Court vacated the May 2009 Board decision and remanded the case to the Board for further appellate review consistent with the Joint Motion. As noted, in April 2010, the RO granted service connection for sensorineural hearing loss of the left ear and assigned an initial noncompensable disability rating, effective as of April 4, 2002. In compliance with the Court's March 2010 Order, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, in August 2010 for additional development. The AMC completed the additional development as directed, continued to deny the claim, and returned the case to the Board for further appellate review. In January 2012, the Board again remanded the issue of service connection for bipolar disorder for additional development. It is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the appellant's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In correspondence dated in May 2010, but received by the Board in July 2010, the appellant raised the issue of entitlement to service connection for right ear hearing loss. The issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 appellant if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development of the record so as to ensure that the appellant is accorded full compliance with the statutory duty to assist. In its January 2012 Remand, the Board, in pertinent part, directed that the agency of original jurisdiction ask the appellant to provide an official copy of the Certificate of Death for his father, and upon receipt, that it be associated with the claims file. A review of the appellant's claims file reveals that the appellant has not yet been requested to provide an official copy of the Certificate of Death for his father. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to assure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the issue must again be remanded so as to the ensure compliance with the Board's January 2012 Remand directives. As to the issue of an increased initial disability rating for the service-connected sensorineural hearing loss of the left ear, in the April 2010 rating decision, the RO granted the appellant's claim, and assigned an initial noncompensable disability rating, effective as of April 4, 2002. In correspondence dated in May 2010, but received by the Board in July 2010, the appellant expressed disagreement with the initial noncompensable disability rating that was assigned. It appears that no subsequent Statement of the Case was ever issued with regard to this issue. The appellant is entitled to a Statement of the Case which addresses the foregoing issue. See Manlincon v. West, 12 Vet. App. 238 (1998). The issue should then be returned to the Board after issuance of the Statement of the Case only if the appellant files a timely substantive appeal. The appellant must be informed that the submission of a substantive appeal as to the issue has not been accomplished, and he must be specifically advised as to the length of time he has to submit a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Finally, as this matter is being remanded for the reasons set forth above, any additional VA medical records reflecting treatment of his bipolar disorder and hearing loss should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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). Accordingly, the case is REMANDED for the following action: (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/AMC shall contact the appropriate VA medical facilities and attempt to obtain medical treatment records pertaining to the appellant for any ongoing treatment of his asserted bipolar disorder and his service-connected left ear hearing loss. All records obtained should be associated with the 's claims file. 2. The RO/AMC shall also ask the appellant to provide an official copy of the Certificate of Death for his father. Upon receipt, associate it with the claims file. 3. The RO/AMC shall issue a Statement of the Case as to the issue of entitlement to an initial compensable disability rating for the service-connected sensorineural hearing loss of the left ear. See Manlincon, supra. If the decision remains adverse to the appellant, he and his representative shall be informed that he must file a timely and adequate substantive appeal if he wishes to appeal the claim to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). The appellant must be informed of the time period allowed for perfecting a timely appeal, including information as to the specific date by which the appeal must be received by VA as well the information supplied in the form letter. 4. The RO/AMC will then readjudicate the appellant's claims. If the benefits sought on appeal remain denied, the appellant and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. 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). _________________________________________________ THOMAS J. DANNAHER 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).