Citation Nr: 1754203	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  11-31 886	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an increased rating for status post vagotomy and pyloroplasty for duodenal ulcer, currently evaluated as 40 percent disabling.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

R. Williams, Counsel 



INTRODUCTION

The Veteran had active service from January 1972 to April 1972. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

These matters were initially before the Board in September 2014 when they were remanded for further development.  They now return for appellate review.  However, as discussed below, the Board finds that there has not been substantial compliance with the September 2014 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

During the pendency of the claim for an increased rating for status post vagotomy and pyloroplasty for duodenal ulcer, an October 2010 rating decision granted a temporary evaluation of 100 percent effective June 7, 2010 through September 30, 2010 based on surgical or other treatment necessitating convalescence.  Thereafter, an October 2011 rating decision found the October 2010 rating decision was clearly and unmistakably erroneous in the grant of entitlement to a temporary 100 percent evaluation and proposed to discontinue the award.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.



REMAND

As noted above, the Board finds that the development requested by the Board in the September 2014 and April 2017 remand directive has not been fully completed.  A remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders.  Stegall, 11 Vet. App. at 271.  It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  Id.  Thus, in the present case additional development must be conducted. 

In pertinent part, in both September 2014 and April 2017, the Board noted the issue of entitlement to service connection for esophageal cancer, to include as secondary to service-connected status post vagotomy and pyloroplasty for duodenal ulcer, had been raised by the record in an October 2011 statement from the Veteran's representative and, in pertinent part, remanded such for adjudication by the AOJ.  The Board remands found the increased rating claim for the Veteran's service-connected duodenal ulcer status post vagotomy and pyloroplasty, and the matter of entitlement to TDIU, due to his gastric conditions, as claimed broadly in his November 2011 substantive appeal, were inextricably intertwined with the matter of service connection for esophageal cancer.  See Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000).  

Although the record reflects the Appeal Management Center referred the issue of entitlement to service connection for esophageal cancer, to include as secondary to service-connected status post vagotomy and pyloroplasty for duodenal ulcer, to the AOJ via a January 2015 memorandum and again via an August 2017 memorandum, the claim has not yet been adjudicated.  Stegall, 11 Vet. App. at 271.  Thus, adjudication of the issues herein on appeal must be deferred again until entitlement to service connection for esophageal cancer has been resolved.  

Finally, in light of the remand for compliance with one of the prior Board remand directives, updated VA treatment records should be obtained.  The record reflects the Veteran most recently received VA treatment from the Malcom Randall VA Medical Center located in Gainesville, Florida, part of the North Florida/South Georgia Veterans Health System, in April 2017.  Thus, on remand, updated VA treatment records from the VA North Florida/South Georgia Veterans Health System, since April 2017, should be obtained and associated with the claims file.  See 38 U.S.C. § 5103A (c) (2012); 38 C.F.R. § 3.159 (c)(2) (2017).  See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record).

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's updated VA treatment records from the North Florida/South Georgia Veterans Health System, since April 2017, and associate these records with the claims folder.  All attempts to obtain these records must be documented in the claims file.  The Veteran and his representative must be notified of any inability to obtain the requested documents.

2.  Undertake all appropriate action to develop and adjudicate the claim of service connection for esophageal cancer, to include as secondary to service-connected status post vagotomy and pyloroplasty for duodenal ulcer.  Notice of the determination, and his appellate rights should be provided to the Veteran and his representative.  Only if following receipt of a timely notice of disagreement, and issuance of a statement of the case, a timely substantive appeal is received, should the issue be forwarded to the Board for appellate consideration.

3.  After adjudication of the claim of service connection for esophageal cancer, to include as secondary to service-connected status post vagotomy and pyloroplasty for duodenal ulcer, readjudicate the issues on appeal, taking into consideration any evidence added to the record since the last August 2017 supplemental statement of the case.  If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

The appellant 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. §§ 5109B, 7112 (2012).




_________________________________________________
MICHAEL LANE
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).



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