Citation Nr: 1634194 Decision Date: 08/30/16 Archive Date: 09/06/16 DOCKET NO. 04-36 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating higher than 30 percent prior to October 30, 2014, and higher than 50 percent since, for an acquired psychiatric disability (anxiety neurosis). 2. Entitlement to service connection for hypertension, including secondary to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran-Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1968 to June 1970 and from August 1980 to January 1981. This appeal to the Board of Veterans' Appeals (Board/BVA) originated from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2006, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the proceeding is of record. The Board subsequently denied these claims in November 2006, and the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). Pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's decision denying these claims and remanded them to the Board for further development and readjudication in compliance with directives specified. In July 2008, the Board, in turn, remanded these claims to the Agency of Original Jurisdiction (AOJ). In a March 2015 rating decision since issued, on remand, the AOJ increased the rating for the psychiatric disability from 30 to 50 percent as of October 30, 2014. So this claim now concerns whether the Veteran was entitled to a rating higher than 30 percent for this disability prior to that date, and whether he has been entitled to a rating higher than 50 percent since. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (explaining that the grant of higher rating, but less than maximum possible rating, does not abrogate a pending appeal. Instead, it is presumed a Veteran is seeking the highest possible rating for a disability unless he expressly indicates otherwise.). Regrettably, the Board must again REMAND these claims to the AOJ. REMAND There has not been compliance, even the acceptable substantial compliance, with the directives of the Board's prior July 2008 remand. See Stegall v. West, 11 Vet. App. 268 (1998) (Where the remand orders of the Board are not complied with, the Board itself errs as a matter of law when it fails to ensure compliance). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In that earlier remand, the Board directed, in part, that uncertified translations of Spanish to English be certified by the translator as true and accurate as required by 28 U.S.C.1746.(See also U.S. Vet. App. R.3(h)) and February 2008 JMR). Specifically, the following documents needed certification: a) an April 1997 letter from the Puerto Rico Department of Education; b) a March 2006 letter from the Puerto Rico Department of Education; c) a November 1993 VA RO letter to the Veteran; and d) the May 1997 RO hearing transcript. It does not appear from the claims file, however, that such action has been taken. And as the Board is not in possession of the May 1997 RO hearing cassette, it cannot certify the translation as true and accurate. Thus, another remand is warranted, not to have these documents translated but, instead, to obtain certifications of the translations, meaning assurances the translations are true and accurate. In addition, the Board directed that a portion of the Veteran's March 1993 statement that was written in Spanish be translated into English. Specifically, the March 1993 VA examination report states as follows: the patient reports: "Esto es una jodienda, pa'que me siguen llamando aqui, ustedes tienen la culpa, esto es una mierda, siempre estan fastidiando a uno. Esas pastillas a mi no me hacen nada". A certified translation of this statement (the Spanish portion of the statement into English) has not been associated with the claims file and must be prior to the Board readjudicating these claims. Accordingly, these claims are again REMANDED for the following still additional development and consideration: 1. Obtain certifications that the translations from Spanish to English are true and accurate for the following documents: a) the April 1997 letter from the Puerto Rico Department of Education; b) the March 2006 letter from the Puerto Rico Department of Education; c) the November 1993 VA RO letter to the Veteran; and d) the May 1997 RO hearing transcription. *No need to have these documents again translated, merely instead obtain certification that the translations already provided are true and accurate (i.e., obtain this written assurance). 2. Aside from that, however, obtain, and associate with the electronic (paperless) claims file, a certified translation of the Spanish portion of the March 1993 VA examination report into English. (The report contains a statement by the Veteran that is typed in Spanish.) The statement reads "[e]sto es una jodienda, pa'que me siguen llamando aqui, ustedes tienen la culpa, esto es una mierda, siempre estan fastidiando a uno. Esas pastillas a mi no me hacen nada". 3. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, or are not granted to the Veteran's satisfaction, send him another Supplemental Statement of the Case (SSOC) and give him and his representative time to respond to it before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2015).