Citation Nr: 18160310 Decision Date: 12/28/18 Archive Date: 12/26/18 DOCKET NO. 14-10 778 DATE: December 28, 2018 REMANDED Entitlement to a rating in excess of 10 percent for hypothyroidism is remanded. Entitlement to an effective date earlier than August 3, 2009 for the award of a compensable rating for hypothyroidism is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1996 to May 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In December 2017, the Board remanded the claim at issue on appeal for further development, including a VA examination and medical opinion. The Veteran had a VA examination in June 2018, and the examiner’s opinion addressed the issues raised in the remand directives. As such, VA has substantially complied with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (2011). Although the Board regrets the additional delay, this matter must be remanded again for adjudication of inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As a brief explanation of the procedural history, the Veteran filed a claim for service connection for hypothyroidism in July 2000, within 1 year of his separation from service. The RO denied service connection in a September 2000 rating decision, finding that although the Veteran was treated for a thyroid disability during military service, he had not attended a scheduled VA examination or demonstrated residual permanent or chronic disability resulting from the thyroid symptoms in service. The Veteran did not file a notice of disagreement or submit additional evidence within 1 year of this decision; thus, the decision became final. 38 C.F.R. §§ 3.156, 20.302. The Veteran submitted a request to reopen his claim for service connection, which was received on May 15, 2002. In a July 2003 rating decision, the RO granted service connection for hypothyroidism and assigned a noncompensable initial rating effective May 15, 2002, the date that the Veteran’s request to reopen his claim for service connection was received. The Veteran did not file a notice of disagreement or submit additional evidence within 1 year of this decision, and it became final. 38 C.F.R. §§ 3.156, 20.302. The Veteran filed a claim for an increased rating for his service-connected hypothyroidism, which was received on August 3, 2010. In the April 2012 rating decision on appeal, the RO increased the Veteran’s rating for hypothyroidism to 10 percent effective August 3, 2010, the date that the claim for an increased rating was received. The Veteran filed a timely notice of disagreement in which he requested a 30 percent or 60 percent rating, and an earlier effective date for the award of a compensable evaluation. In March 2014, the RO issued a rating decision granting entitlement to an earlier effective date of October 8, 2009, for the 10 percent rating for hypothyroidism, finding that VA medical records showed that the Veteran started medication for control of his hypothyroidism on that date. The RO stated that this constituted a full grant of the benefits sought on appeal for that claim. Thereafter, the RO issued a statement of the case continuing the assigned 10 percent rating, but not addressing the issue of entitlement to an earlier effective date for the award of a compensable initial rating. The Veteran filed a timely VA Form 9, Appeal to Board of Veterans’ Appeals, in which he specified that he appealed the assigned rating and the effective date for the increased rating for hypothyroidism. In July 2017, the Veteran and his attorney appeared before the Board in a hearing by live videoconference, and raised the issue of clear and unmistakable error in the July 2003 rating decision which assigned a noncompensable initial rating for hypothyroidism. The Veteran alleged, among other things, that he had been prescribed medication for his thyroid disability since military service, but that there was a period when he did not have access to a VA physician and his prescription ran out. He alleged that he attended a VA examination during this period, and reported that he was not taking medication at the time, which caused him to be denied a compensable rating from May 15, 2002. The Veteran contended that the RO inaccurately presumed that he did not require medication, which led to the denial of a compensable rating. In February 2018, the Veteran’s attorney submitted additional correspondence stating that the Veteran would be filing a new claim for (1) an earlier effective date of May 30, 2000 for the award of service connection for hypothyroidism on a fundamental procedural ground, and (2) reconsideration of the medical documents that led to assignment of a 0 percent evaluation prior to August 3, 2009. In September 2018, the Veteran submitted a VA 21-526EZ, Fully Developed Claim (Compensation), in which he requested an earlier effective date for service connection for hypothyroidism, and an earlier effective date for the 10 percent rating for hypothyroidism, with both claims based on clear and unmistakable error. The Veteran also submitted two separate copies of VA Form 21-4138, Statement in Support of Claim, in which he alleged, among other things, that he should be entitled to an effective date of May 30, 2000, for service connection for hypothyroidism, and that his claim for an earlier effective date for a compensable rating is inextricably intertwined with such claim. The record does not reflect that the AOJ has adjudicated these issues based on clear and unmistakable error. The Board finds that the increased rating claim at issue on appeal is inextricably intertwined with the request for revision of the July 2003 rating decision based on clear and unmistakable error. See Harris, 1 Vet. App. at 183 (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Specifically, a determination of clear and unmistakable error in the July 2003 rating decision would vitiate the finality of that decision, and potentially expand the appeal period back to the date of the Veteran’s separation from service. Without cognizance and consideration of such a finding, the Board’s adjudication of the increased rating claim at issue on appeal would be incomplete. See 38 C.F.R. §§ 3.105 (a); 3.400 (k). Additionally, evidence generated by further development may impact the outcome of the increased rating claim. See Pederson v. McDonald, 27 Vet. App. 276, 289 (2015) (discouraging piecemeal litigation in the absence of finality). Accordingly, appellate action must be deferred pending AOJ adjudication of the request for revision of the July 2003 rating decision based on clear and unmistakable error. The Board observes that the Veteran’s notice of disagreement with the April 2012 rating decision specifically requested an earlier effective date for a compensable evaluation for hypothyroidism. As a statement of the case was not provided with respect to this issue, the matter has not been developed for Board adjudication. See 38 U.S.C. § 7105. However, where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). Nevertheless, in a rating decision in April 2018, the AOJ granted an effective date of August 3, 2009 for assignment of a 10 percent rating for hypothyroidism. The Board acknowledges that as the increased rating claim at issue on appeal was received on August 3, 2010, an effective date of August 3, 2009 would normally be the earliest effective date allowed by applicable regulations. See 38 C.F.R. § 3.400 (o)(2) (when medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective dates for retroactive benefits up to 1 year prior to the receipt of a claim for an increased rating). However, as the Veteran’s request for revision of the July 2003 rating decision based on clear and unmistakable error has not yet been adjudicated, and such adjudication may result in an earlier effective date for service connection and a compensable rating, issuance of a SOC as to entitlement to an earlier effective date for a compensable rating is warranted. In sum, as a finding of clear and unmistakable error in the July 2003 rating decision would substantially affect the Board’s adjudication of the claim for an increased rating for hypothyroidism, appellate action on such claim must be deferred, pending AOJ adjudication of the inextricably intertwined claim alleging clear and unmistakable error in the July 2003 rating decision. See Harris, 1 Vet. App. at 183. The matter is REMANDED for the following action: 1. Provide the Veteran with any required notice under the Veteran’s Claims Assistance Act of 2000 (VCAA) relevant to substantiating the claim of clear and unmistakable error in the July 2003 rating decision award of service connection, and a noncompensable initial rating, for hypothyroidism, effective May 15, 2002. 2. Develop and adjudicate the Veteran’s claim as to whether the July 2003 rating decision which granted service connection, and assigned a non-compensable initial rating, for hypothyroidism effective May 15, 2002, contained clear and unmistakable error. The record should reflect consideration of the allegations raised by the Veteran and his attorney, to include the attorney’s statements (received February 26, 2018), the Veteran’s Form VA 21-526EZ and two forms VA 21-4138 (each received September 20, 2018), and statements made during the Board hearing in July 2017. Notice of the determination, and the Veteran’s appellate rights should be issued to the Veteran and his representative. The RO should not return the claims file to the Board until either after the Veteran perfects his appeal as to the clear and unmistakable error claims, or the time period for doing so expires, whichever occurs first, unless otherwise indicated by the Veteran or his attorney. 3. Following adjudication of the CUE claim, issue a statement of the case as to the Veteran’s notice of disagreement with the April 2012 rating decision award of a compensable evaluation for hypothyroidism ultimately effective August 3, 2009. Only if a timely substantive appeal is received as to the matter, should it be returned to the Board for appellate consideration. 4. Thereafter, review the expanded record and readjudicate the issue on appeal of entitlement to an increased rating for hypothyroidism. If the benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel