Citation Nr: 0004206 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 94-11 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a thyroid disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from May 1970 to May 1973 and from October 1973 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) from a November 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision the RO granted entitlement to service connection for reflux esophagitis, and assigned a noncompensable rating for the disorder. The veteran perfected an appeal of the assigned rating. In an April 1995 rating decision the RO re-defined the service-connected gastrointestinal disorder as reflux esophagitis with reflux laryngitis, and continued the noncompensable rating. In a July 1997 rating decision the RO characterized the gastrointestinal disorder as esophageal reflux with hiatal hernia, laryngeal reflux, and Reinke's space edema, and increased the disability rating for the disorder from zero to 10 percent. In the July 1997 rating decision the RO also denied entitlement to service connection for an enlarged thyroid gland, and in October 1997 the veteran submitted a notice of disagreement with that decision. The veteran's claims were previously before the Board in June 1998, at which time issues no longer in appellate status were resolved, and the issue of entitlement to a disability rating in excess of 10 percent for the gastrointestinal disorder was remanded to the RO for additional development. In the June 1998 remand the Board also instructed the RO to provide the veteran a statement of the case pertaining to the denial of service connection for a thyroid disorder. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.200 (1999). The veteran subsequently perfected an appeal of the July 1997 denial of service connection for a thyroid disorder. In a July 1999 rating decision the RO established separate grants of service connection for laryngeal reflux and Reinke's edema, status post vocal chord polyp removal, and gastroesophageal reflux with hiatal hernia and an undiagnosed illness characterized by abdominal pain and cramping. The disability rating for the laryngeal disorder was increased from 10 to 30 percent following a temporary total disability rating in accordance with 38 C.F.R. § 4.30 (1999). The RO also assigned a separate 10 percent disability rating for the gastrointestinal disorder effective in November 1994. In a September 1999 written statement the veteran withdrew his appeal of the rating assigned for the laryngeal/gastrointestinal disorder, and the Board finds that that issue is no longer within its jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (an appeal ceases to be effective if withdrawn); 38 C.F.R. § 20.204 (1999). In the September 1999 statement the veteran also claimed entitlement to disability compensation pursuant to 38 U.S.C.A. § 1151 (West 1991 and Supp. 1999) for injuries incurred during surgery that was performed at a VA medical center (MC) in February 1998. This issue has not been adjudicated by the RO and is referred to the RO for appropriate action. See Bruce v. West, 11 Vet. App. 405 (1998). REMAND During a May 1994 hearing the veteran testified that his VA physician had told him that his thyroid disorder occurred while he was on active duty. The physician's opinion could show that the claim for service connection for a thyroid disorder is well grounded by establishing a nexus between the currently diagnosed disorder and active service. See Wade v. West, 11 Vet. App. 302 (1998). Because the evidence could result in a well-grounded claim, the veteran should be instructed to obtain a statement from his physician regarding the onset or etiology of the thyroid disorder. 38 U.S.C.A. § 5103(a) (West 1991; see Franzen v. Brown, 9 Vet. App. 235 (1996) (if the veteran reports the existence of evidence that would make his claim well grounded, VA must inform him of the need to provide that evidence); see also Costantino v. West, 12 Vet. App. 517 (1999) (pursuant to 38 C.F.R. § 3.103, a VA hearings officer has a duty to notify the veteran of the evidence needed to prove his claim). The evidence in the claims file indicates that the veteran has received treatment for a thyroid disorder at the VAMC, but the records of that treatment subsequent to February 1998 are not in file. Because the available evidence shows that the enlarged thyroid has resulted in the diagnosis of a thyroid disability, that evidence is highly relevant to the veteran's claim. The VA treatment records are deemed to be evidence of record, and a determination on whether the veteran has submitted a well-grounded claim cannot be made without consideration of that evidence. See Bell v. Derwinski, 2 Vet. App. 611 (1992). To ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain the treatment records of the veteran from the VAMC since February 1998. 2. The RO should instruct the veteran, in writing, to obtain an opinion from his treating physician regarding the onset or etiology of the thyroid disorder to be associated with the claims file. 3. If the above-requested development results in a finding that the claim for service connection for a thyroid disorder is well-grounded, the veteran should be provided a VA endocrinology examination for the purpose of determining whether the thyroid disorder is related to service. The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination. The examination should include any diagnostic tests or studies that are deemed necessary for an accurate assessment. Based on the results of the examination, a review of the evidence in the claims file, and sound medical principles, the examiner should provide an opinion on whether it is at least as likely as not that the onset of the veteran's thyroid disorder had its onset during service. The examiner should provide the rationale for his/her opinion. 4. The RO should then review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the requested examination and opinion are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issue of entitlement to service connection for a thyroid disorder. If any benefit requested on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that his failure, without good cause, to report for scheduled examinations could result in the denial of his claim. 38 C.F.R. § 3.655 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).