Citation Nr: 1645545 Decision Date: 12/05/16 Archive Date: 12/19/16 DOCKET NO. 10-36 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial increased rating for coronary artery disease (CAD), currently rated as 10 percent disabling. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for asthma. 4. Entitlement to service connection for a spine disability. 5. Entitlement to service connection for right upper extremity radiculopathy. 6. Entitlement to service connection for left upper extremity radiculopathy. 7. Entitlement to service connection for right lower extremity radiculopathy. 8. Entitlement to service connection for left lower extremity radiculopathy. ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1969. This case comes before the Board of Veterans' Appeals (Board) on appeal from several different rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In November 2013, the Board decided several issues on appeal and remanded the matters of entitlement to an initial increased rating for CAD, currently rated as 10 percent disabling; and entitlement to service connection for bilateral upper and lower extremity radiculopathy, a psychiatric disability, COPD, asthma/a respiratory disability, a spine disability; and entitlement to a TDIU. Since that time, an August 2016 rating decision awarded service connection for a psychiatric disability and awarded a TDIU. As such, these issues are no longer before the Board. This appeal was processed using the Virtual Benefits Management System (VBMS) and Virtual VA (VVA) paperless claims processing systems. The Veteran's VBMS file includes records related to separate appeals as to several issues. The RO appears to be actively processing these appeals, thus the Board declines to exercise jurisdiction over these claims at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The record before the Board includes outpatient treatment records from the San Juan VA Medical Center (VAMC) dating between November 2006 and November 2011. In October 2013, the Veteran submitted photocopies of records from the San Juan VAMC dated in December 2012 and January 2013, which pertained to both his pulmonary and cardiac health. More recently, in September 2016, the Veteran submitted a statement on a VA Form 21-526EZ indicating he receives treatment every three months at the San Juan VAMC. Thus, there appears to be a likely vast amount of missing VA outpatient treatment records, dating since November 2011. Remand is necessary in order for the RO to associate the missing records with the claims file. 38 C.F.R. § 3.159(c) (2015). In November 2013, the Board remanded the matters of entitlement to service connection for asthma and a spine disability for issuance of a statement of the case (SOC) under Manlincon v. West, 12 Vet. App. 238 (1999). These issues were returned to the Board without any SOC having been issued for either the asthma, or spine claim. Thus, the AOJ did not comply with the Board's remand directive as to these issues. Such noncompliance is error on the part of the originating agency. Moreover, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the Board must once again remand these issues for compliance. As noted in the Board's November 2013 Remand, the matters of entitlement to service connection for radiculopathy of the various extremities on appeal are inextricably intertwined with the matter of whether service connection is warranted for a spine disability. These issues are held in abeyance until such time that the matter of the appeal of the spine disability claim is final. 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). Expedited handling is requested.) 1. Obtain all VA treatment records from the San Juan VAMC pertaining to both the Veteran's cardiac care and pulmonary care, dating from November 2011 to the present. 2. Issue an SOC to the Veteran with regard to the claims of entitlement to service connection for asthma and entitlement to service connection for a spine disability. These issues should not be certified to the Board unless a substantive appeal is received. 3. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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 2014). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).