Citation Nr: 0740011 Decision Date: 12/19/07 Archive Date: 12/26/07 DOCKET NO. 94-41 527A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for the cause of the veteran's death. REPRESENTATION Appellant represented by: Lewis C. Fichera, Attorney WITNESSES AT HEARING ON APPEAL Appellant and her son INTRODUCTION The veteran served on active duty from March 1943 to January 1946, and from January 1948 to June 1966. He died in April 1993. The appellant is the veteran's widow. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1994 decision of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). In a July 2000 decision, the Board denied the claim. In October 2000, the Board vacated its July 2000 decision. In a May 2001 decision, the Board again denied the claim. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2001, the Court vacated the Board's May 2001 decision and remanded the case to the Board. A June 2002 Board decision again denied the claim. The appellant again appealed to the Court. A February 2003 Court order granted a joint motion requesting that the June 2002 Board decision be vacated and once again remanded the case to the Board. In October 2003, the Board remanded the case for further evidentiary development. The Board remanded the veteran's appeal once again in October 2005. In June 2007, the Board denied the claim, however, in light of a May 2007 motion, that decision was vacated. REMAND Following October 2003 and October 2005 remand, the appellant's claims were reviewed by a three-physician panel. The panel was directed to comment on the February and March 2004 opinion letters, respectively, of Drs. Irfan-Ul Huq and Craig N. Bash. Since that review, additional pertinent evidence has been submitted by Dr. Bash, as well as by Harrison Butler, M.D. While a waiver of RO consideration of this evidence has been offered, in light of the material nature of these new medical opinions, consideration by the prior review panel is in order. Therefore, this case is REMANDED for the following action: 1. The RO must make arrangements for the appellant's claims files to be reviewed by the panel of at least three physicians who reviewed the case in 2006. Based on a through review of the claims folder, the panel must provide a consensus opinion address the following: As to any inservice weight gain, is it at least as likely as not (i.e., is there a 50/50 chance) that this weight gain caused or contributed substantially or materially to cause his death? Is it at least as likely as not that diabetes mellitus was incurred during military service, to include due to any in-service weight gain? Is it at least as likely as not that diabetes mellitus was compensably disabling within the first year following the veteran's June 1966 separation from active duty? If diabetes was incurred during military service or if diabetes was compensably disabling within a year of separation from active duty, is it at least as likely as not that diabetes caused or contributed substantially or materially to cause the veteran's death. Is it at least as likely as not that nonalcoholic steatohepatitis was incurred during military service, to include due to any in-service weight gain? In providing answers to the above questions, the physicians must provide a complete rationale for any opinion provided. Further, they must specifically comment on the February 2004 opinion provided by Dr. Ul-Huq, the March 2004 and March 2007 opinions provided by Dr. Bash, an April 2007 addendum offered by Dr. Bash, and an April 2007 opinion submitted by Dr. Butler. If any panel member who served in 2006 is no longer available, an endocrinologist and a gastroenterologist must replace the missing member. 2. After the development requested has been completed, the RO should review the panel report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 3. If additional evidence or information received or not received triggers a need for further development, assistance or notice under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), such as providing the appellant with updated notice of what evidence has been received and not received by VA as well as who has the duty to request evidence, then such development should be undertaken by the RO. 38 U.S.C.A. §§ 5100, 5103 (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). 4. Thereafter, the RO should prepare a new rating decision and readjudicate the issue on appeal. The RO is advised that they are to make a determination based on any further changes in the VCAA and any other applicable legal precedent. If the benefit sought on appeal remains denied, the appellant and her representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. A reasonable period of time should be allowed for response. The appellant 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). 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).