Citation Nr: 1333551 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 08-03 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to increased evaluations for hyperthyroidism, status post radioactive ablation with residual hypothyroidism, initially evaluated as 10 percent disabling beginning on May 1, 2007, 30 percent disabling as of June 18, 2008, and 60 percent disabling as of July 18, 2011. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty from January 1982 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for the Veteran's thyroid disability and assigned a 10 percent evaluation effective May 1, 2007. The case has since been transferred to the RO in Roanoke, Virginia. In September 2010, the Veteran presented testimony in a hearing before the undersigned and a copy of the transcript has been associated with the claims folder. Then in April 2011, the Board remanded the matter for further development which has been completed and the case has been returned to the Board for appellate consideration. During the pendency of this appeal, in a September 2009 rating decision, the RO increased the initial rating for the Veteran's thyroid disability to 30 percent disabling, effective from June 18, 2008. Thereafter, in a March 2012 rating decision, the Appeals Management Center (AMC) increased the disability rating to 60 percent, effective July 18, 2011. Since the RO/AMC did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993) (noting that where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit does not abrogate the pending appeal). As noted by the Board in April 2011, in October 2009, the RO denied entitlement to a compensable evaluation for allergic rhinitis. Following the receipt of a Notice of Disagreement in November 2009, the RO issued a Statement of the Case in February 2010. The Veterans Appeals Control and Locator System (VACOLS) indicates that a Substantive Appeal was received in July 2010, but it is not presently associated with the claims file. While an appeal as to this claim appears to have been perfected, the Board cannot be certain of either the contents of the Substantive Appeal (e.g., if the Veteran has requested a hearing) or the possibility of additional relevant evidence having been received by the RO. Accordingly, in April 2011, the Board referred this issue to the RO but to date no action has been taken. The Board reiterates that it will therefore not adjudicate this claim at the present time but instead will again refer this matter to the attention of the RO for action pursuant to 38 C.F.R. §§ 19.35 and 19.36 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the April 2011 remand, the Board instructed the AMC to provide the Veteran a thyroid examination. The Board specifically directed the VA examiner to consider several factors, most of which were addressed by July 2011 VA examiner. However, there were several criteria which the examiner did not discuss, namely: emotional instability, cold intolerance, bradycardia, generalized decalcification of bones, and kidney stones. As to cold intolerance, the examiner noted heat intolerance but did not address cold intolerance. Therefore, the Board finds that the Veteran must be provided another examination to address these factors. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, the case is REMANDED for the following actions: 1. The Veteran should next be afforded a VA thyroid examination, with an appropriate examiner who has reviewed the entire claims file (including the service treatment records). Based upon the claims file review, the examination, and the reports of the Veteran, the examiner must address whether, and to what extent, each of the following are present: a) emotional instability, b) cold intolerance, c) bradycardia, d)generalized decalcification of bones, and e) kidney stones. All opinions and conclusions expressed by the examiner must be supported by a complete rationale in a typewritten report. 2. Then, the claim should be readjudicated. If the determination remains less than fully favorable to the Veteran, she and her representative must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ N. RIPPEL 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).