Citation Nr: 1807074	
Decision Date: 02/02/18    Archive Date: 02/14/18

DOCKET NO.  13-12 248	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder as secondary to carcinoma of the bladder and as due to in-service exposure to mercury coal ash, and coal tar.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. N. Quarles, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1969 to July 1971.

This case was previously before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  The Board remanded the case in December 2015 and December 2016 for further development.

The Veteran testified at a personal hearing by videoconference before a member of the Board in August 2015, and a transcript of the hearing is of record.  The Veterans Law Judge that conducted the hearing is no longer employed by the Board.  The law requires the Veterans Law Judge who conducts a hearing to participate in any decision made on the appeal.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707.  The Veteran was notified that the Veterans Law Judge that conducted his hearing is no longer employed by the Board by way of an October 2017 letter.  He was offered the opportunity to have a new hearing, and the Veteran declined the opportunity for an additional hearing in October 2017.  Thus, the Board will proceed to consider the Veteran's claim without additional hearing testimony.

The appeal is REMANDED to the AOJ.  VA will notify the Veteran if further action is required.


REMAND

In December 2016 the Board, in pertinent part, remanded the issue before the Board.  The AOJ was instructed to obtain an addendum opinion, subsequently readjudicate the Veteran's claim, and to issue a supplemental statement of the case (SSOC) if the claim remained denied.  The AOJ scheduled the Veteran for the requested VA opinion January 2017.  A SSOC was issued in July 2017; however, it listed and adjudicated the wrong issue, that is, entitlement to service connection for carcinoma of the bladder, to include as due to in-service exposure to mercury, coal ash, and coal tar; a matter which had been finally decided by the Board in December 2016.  The correct issue must be readjudicated in accordance with the prior remand instructions.  While the discussion in the SSOC does reference a psychiatric disorder, the Board finds a substantial likelihood that this issuance could be highly and perhaps prejudicially confusing to the Veteran.  A Board remand imposes upon VA's Secretary a duty to ensure compliance with the terms of the remand.  Therefore, the Board does not find that there has been substantial compliance with its prior remand directives, and the matter must be remanded once again.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders).

Accordingly, the case is REMANDED for the following action:

The Veteran's claim for entitlement to service connection for an acquired psychiatric disorder as secondary to carcinoma of the bladder and as due to in-service exposure to mercury coal ash, and coal tar should be readjudicated.  If the benefit sought on appeal remains denied, the appellant should be furnished a SSOC and be given the opportunity to respond thereto before the case is returned to the Board. 

The Veteran has the right to submit additional evidence and arguments on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This appeal 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. §§ 5109B, 7112 (2012).


_________________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C. § 7252 (2012), 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) (2017).