Citation Nr: 1723219 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 10-02 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a back disorder. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD L. Htun, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1962 to June 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which declined to reopen a previously denied claim of entitlement to service connection for a back disorder. The Veteran subsequently perfected an appeal as to such issue. The Veteran and his spouse testified at a RO hearing in April 2010 and at a Board hearing before the undersigned Veterans Law Judge sitting at the RO in July 2011. Transcripts of both hearings are of record. In November 2011, the Board remanded the issue listed on the title page for further development and the issue of entitlement to a compensable rating for the scar of the left thigh and perineum for the issuance of a statement of the case. With regard to the latter issue, the Agency of Original Jurisdiction (AOJ) issued a statement of the case in September 2013; however, the Veteran did not perfect his appeal as to such issue within the applicable time period. Therefore, the Board's jurisdiction is limited to the issue listed on the title page. Further, the Board notes that, in the November 2011 remand, the Board referred the pending claim of whether there was clear and unmistakable error (CUE) in the September 1973 rating decision that denied service connection for compression-like deformity at T-8 to the AOJ for appropriate action. Thereafter, the AOJ denied the Veteran's CUE claim in rating decisions issued August 2012 and May 2015; however, he did not enter a notice of disagreement as to such decisions. As such, the Board does not have jurisdiction over the Veteran's CUE claim. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). In addition, 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. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2011, the Board remanded the Veteran's application to reopen his previously denied claim for service connection for a back disorder. In this regard, the Board directed the AOJ to obtain outstanding treatment records and adjudicate the Veteran's claim of whether there is CUE in the September 1973 rating decision that denied service connection for compression-like deformity at T-8. Thereafter, the AOJ was to readjudicate the case based on the entirety of the evidence and issue a supplemental statement of the case if the Veteran's claim remained denied. Regrettably, the Board finds that the AOJ failed to fully comply with the November 2011 remand directives. While the record shows that the AOJ undertook appropriate development efforts to obtain the outstanding treatment records and adjudicated the Veteran's CUE claim, the AOJ failed to readjudicate the case and issue a supplemental statement of the case. As such, the Board must remand this case again to ensure full compliance with the November 2011 remand directives. See Stegall, supra. Accordingly, the case is REMANDED for the following action: Readjudicate the Veteran's application to reopen his claim of entitlement to service connection for a back disorder based on the entirety of the evidence, to include the evidence received since the issuance of the December 2009 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).