Citation Nr: 1719475 Decision Date: 06/01/17 Archive Date: 06/14/17 DOCKET NO. 07-05 800 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a rating in excess of 10 percent for hypothyroidism. ATTORNEY FOR THE BOARD L. Zobrist, Counsel INTRODUCTION The Veteran had active service from October 1978 to October 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was scheduled for a hearing in October 2009, but he canceled the hearing request. This case was previously before the Board in November 2009, when this claim was denied (by a Veterans Law Judge (VLJ) who has since retired.) The Veteran appealed the Board's November 2009 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated in May 2011, the Court vacated the Board's November 2009 with respect to the rating assigned for hypothyroidism and remanded the matter to the Board for compliance with instructions in a Joint Motion for Remand (Joint Motion). [The May 2011 Order dismissed an appeal seeking service connection for ingrown toenails and that matter is no longer in appellate status.] The matter was again before the Board in November 2011, when it was remanded for additional development. [The Board also remanded the matter of entitlement to an earlier effective date for the resumption of VA benefits following a period of incarceration for issuance of a statement of the case (SOC). An SOC issued, but the Veteran did not file a substantive appeal to perfect the matter; it is no longer in appellate status.] The matter has been assigned to the undersigned, and in February 2016 was remanded for additional development. In June 2016, the Veteran's representative withdrew (his correspondence indicates that the Veteran was notified). As the Veteran has not appointed a representative since his agent's withdrawal, he is considered to be proceeding pro se. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND The Board is well aware this matter was remanded several times before (and regrets the delay in final adjudication that is inherent with a remand). Nonetheless, because there has not been substantial compliance with the previous remand instructions, another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998) (where remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance.) In the May 2011 JMR, the parties agreed, essentially, that the VA examinations of record were insufficiently precise as to the exact nature of the Veteran's service-connected thyroid disability and the degree of resulting impairment. The parties additionally agreed that the examinations did not address whether changes in laboratory readings were significant in assessing severity. The Board's February 2016 remand noted that the December 2012 VA examination did little to resolve the medical questions posed, and that an October 2013 addendum opinion was inadequate to resolve the deficiency. The Board's February 2016 remand instructions directed the AOJ to arrange for a new examiner and directed the examiner to comment on specific symptoms attributed by the Veteran (a lay person without medical expertise) to his hypothyroid condition. The July 2016 VA examiner completed a disability benefits questionnaire (DBQ) indicating that the Veteran has no findings, signs, or symptoms attributable to a thyroid condition. The examiner did not, as directed, address the Veteran's symptoms which on prior examination were attributed to a hyperthyroid disability. The examination report did not respond to the Board's directives, nor does it satisfy the terms of the JMR; remand is required. Furthermore, comprehensive re-review of the record found that the Veteran has reported receiving Social Security Administration (SSA) benefits due to his hypothyroid disability. (See, e.g., November 2005 VA treatment record). Medical records considered in connection with an SSA determination are constructively of record and must be secured. See 38 C.F.R. § 3.159(c)(2). As the Veteran appears to receiving ongoing treatment for his hypothyroidism, and records of such treatment are clearly pertinent (and may be critical) evidence in a claim for increase (and VA records are constructively of record), updated treatment records must also be obtained. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record from SSA complete copies of their decision awarding the Veteran disability benefits and the record upon which the award was based. If such records are unavailable, the reason for their unavailability must be explained. 2. The AOJ should secure for the record all records of VA evaluations and treatment the Veteran has received for his hypothyroidism (that are not already associated with the claims file.) The AOJ should also ask him to provide releases for VA to obtain records of any pertinent private treatment. The AOJ should secure complete records from all providers identified. If any records sought are unavailable, the Veteran should be so notified. If he authorizes release of records, but the provider in question does not respond to AOJ's request, he should be advised that ultimately it is his responsibility to ensure that private records are received. 3. After the development sought above is completed, the AOJ should forward the entire record to an endocrinologist for review and a medical advisory opinion addressing the severity of the Veteran's hypothyroidism during the period on appeal (from January 2004). Based on a review of the entire record (to include this remand), the examiner should provide an opinion that responds to the following: (a) Does the Veteran currently have (or has he had at any time since 2004) any thyroid diagnosis other than his service-connected hypothyroidism? In responding, the examiner should specifically address the evidence of record suggesting other diagnoses, e.g., December 2012 VA examination report, attributing several symptoms to hyperthyroidism. (b) If the answer to (a) is yes, for each such disability (other than hypothyroidism) found, please explain whether that diagnosis is a manifestation of ('part and parcel' with) the service-connected hypothyroidism or does it represent a separate and distinct pathology. (c) For each symptom reported by the Veteran (in the record) or noted on prior examination, to specifically include fatigability, decreased energy, decreased motivation, fecal and urinary incontinence, erectile dysfunction, weight changes, emotional imbalance/instability, sleepiness, depression, mental sluggishness, feeling older than he is, muscular weakness, and mental disturbance, please clearly indicate whether the symptom is attributable to service-connected hypothyroidism or to another diagnosis. If further evaluation of the Veteran (or consultation with other specialists, e.g., psychiatry) is deemed necessary to respond to the questions posed, such should be arranged. In responding, the examiner should address any conflict with the findings on December 2012 VA examination. (d) With respect to the pertinent laboratory findings of record, indicate whether changes in values measured reflect a worsening of the Veteran's service-connected hypothyroidism. The examiner must explain the rationale for all opinions, citing to supporting factual data and medical literature, as appropriate. 4. The AOJ should then review the entire record and readjudicate the claim. If the benefit sought remains denied, the AOJ should issue an appropriate supplemental statement of the case, afford the Veteran opportunity to respond, and return the case to the Board. The appellant 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 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). _________________________________________________ George R. Senyk 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) (2016).