Citation Nr: 1332853 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 04-43 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence had been received to reopen a claim for service connection for organic bowel syndrome. 2. Whether new and material evidence had been received to reopen a claim for service connection for hypothyroidism as a residual of treatment for hyperthyroidism. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESSES AT HEARING ON APPEAL Veteran and Friend ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from August 1977 to June 1991. The Veteran also had six years and three months of prior active duty service. This matter comes before the Board of Veterans' Appeals (Board) from an August 2004 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Custody of the case was subsequently transferred to the VA RO in St. Petersburg, Florida. In May 2007, the Veteran and L. V. testified at a hearing before the undersigned. In September 2007, October 2010, and August 2012, the Board remanded the appeal for additional development. In December 2009 and January 2010, the Veteran requested another hearing before a Veterans' Law Judge, in this instance, sitting at the Central Office in Washington, DC. In this regard, controlling laws and regulations afford a claimant only one Veterans' Law Judge (VLJ) hearing in connection with an appeal to the Board when all the issues on appeal have already been addressed at a VLJ hearing. See 38 C.F.R. § 20.700, 20.702, 20.704 (2011). Therefore, because all of the issues on appeal were addressed at his May 2007 hearing, the Board finds that the Veteran is not entitled to another VLJ hearing. The issues of whether new and material evidence has been submitted to reopen claims of entitlement to service connection for bilateral lower extremity weakness and a chronic gastrointestinal disorder have been raised by the record (in an October 2012 correspondence), 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. 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 While the Board regrets further delay, after review of the record, the Board finds that a remand for further development is warranted with respect to the issues of whether new and material evidence had been received to reopen a claim for service connection for organic bowel syndrome, whether new and material evidence had been received to reopen a claim for service connection for hypothyroidism as a residual of treatment for hyperthyroidism, and entitlement to a TDIU. A remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Here, as mentioned above, the Board remanded the appeal for additional development in August 2012. Specifically, the Board found that the applications to reopen the claims of service connection for organic bowel syndrome and hypothyroidism as a residual of treatment for hyperthyroidism were inextricably intertwined with the Veteran's application to reopen a claim of service connection for hyperthyroidism as well as his claim that the January 1993 rating decision that denied service connection for organic bowel syndrome was not final. As such, VA adjudication of the applications to reopen the claims of service connection for organic bowel syndrome and hypothyroidism as a residual of treatment for hyperthyroidism were placed on hold until the AOJ adjudicated the Veteran's application to reopen a claim of service connection for hyperthyroidism and the claim that the January 1993 rating decision that denied service connection for organic bowel syndrome was not final. The Board's August 2012 remand explicitly directed the AOJ to issue a rating decision that adjudicated the issues of the Veteran's application to reopen a claim of service connection for hyperthyroidism and the claim that the January 1993 rating decision that denied service connection for organic bowel syndrome was not final. Thereafter, if the Veteran's application to reopen a claim of service connection for hyperthyroidism and/or the claim that the January 1993 rating decision that denied service connection for organic bowel syndrome was not final, was denied, then the AOJ was explicitly directed to readjudicate the applications to reopen the claims of service connection for organic bowel syndrome and hypothyroidism as a residual of treatment for hyperthyroidism after the time to perfect an appeal as to the denied claims had expired. Pursuant to the Board's August 2012 remand instructions, the RO issued a July 2013 rating decision which denied the Veteran's claim for entitlement to service connection for hypothyroidism and found that the January 1993 rating decision denying entitlement to service connection for organic bowel syndrome was final. The Veteran was notified of this rating decision in correspondence dated on September 10, 2013. However, rather than readjudicate the applications to reopen the claims of service connection for organic bowel syndrome and hypothyroidism as a residual of treatment for hyperthyroidism after the time to perfect an appeal as to the denied claims had expired, the RO instead immediately returned the claims file to the Board without readjudicating the claims. This is clearly noncompliant with the Board's August 2012 remand instructions, which directed the AOJ to readjudicate the applications to reopen the claims of service connection for organic bowel syndrome and hypothyroidism as a residual of treatment for hyperthyroidism, either in the form of a rating decision or supplemental statement of the case, after the time to perfect an appeal as to the denied claims expired (which, in this case, is now September 9, 2014, one year from the date of the September 10, 2013, correspondence notifying him that the July 2013 rating decision denied his claims). Again, as to the Veteran's claim for entitlement to a TDIU, the Board finds that adjudication of this claim is inextricably intertwined with the claims of entitlement to service connection for organic bowel syndrome and hypothyroidism. Therefore, the Board finds that adjudication of the TDIU claim must also be remanded, as the claim cannot be fully and fairly adjudicated until the questions of service connection for organic bowel syndrome and hypothyroidism are settled. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Once the time to perfect an appeal with respect to the July 2013 rating decision has expired (i.e., September 9, 2014), then the AMC/RO should readjudicate the applications to reopen the claims of service connection for organic bowel syndrome and hypothyroidism as a residual of treatment for hyperthyroidism, as well as the claim for a TDIU. 2. If the applications to reopen the claims of service connection for organic bowel syndrome and hypothyroidism as a residual of treatment for hyperthyroidism and/or the claim for a TDIU are denied, then the AMC/RO should issue the Veteran a supplemental statement of the case. The supplemental statement of the case must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence received and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). _________________________________________________ L. M. BARNARD Acting 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).