Citation Nr: 0813597 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 93-00 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for peptic ulcer disease with chronic gastrointestinal disorder prior to January 24, 1999. 2. Entitlement to an evaluation in excess of 60 percent for peptic ulcer disease with chronic gastrointestinal disorder from January 24, 1999. 3. Entitlement to an effective date earlier than January 24, 1999 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU). 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of transurethral resection of the prostate (TURP), including loss of use of a creative organ. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD R. Giannecchini, Counsel REMAND The veteran had active military service from September 1968 to May 1970. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from June 1996, March 1998, and February 2003 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. By way of procedural history, in a June 1995 decision, the Board, inter alia, granted the veteran service connection for peptic ulcer disease. The decision was implemented by the RO's rating decision of September 1995, in which the RO characterized the veteran's service-connected disability as "peptic ulcer disease, chronic gastrointestinal disorder" (hereinafter PUD) and assigned a 10 percent evaluation effective January 29, 1991. In June 1996, the RO increased the evaluation for PUD from 10 to 20 percent, effective January 29, 1991. The veteran appealed the RO's decisions. In January 1998, the Board remanded the veteran's claim on appeal to clarify a matter regarding representation of the veteran before VA. In March 1998, while the appeal was in remand status, the RO denied the veteran's claim to benefits under the provisions of 38 U.S.C.A. § 1151 for residuals of a transurethral resection of the prostate (TURP) procedure, including loss of use of a creative organ. The veteran appealed the RO's March 1998 denial of his claim. In January 1999, the Board denied the veteran's claim for a higher rating for PUD. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In July 2000, the veteran's representative and VA General Counsel filed a joint motion to vacate, in part, the Board's January 1999 decision. In an August 2000 order, the Court granted the joint motion and vacated that part of the Board's decision that denied a higher rating for PUD, and remanded the case to the Board for further action. Thereafter, in August 2001, the Board remanded the case for additional development. Subsequently, by rating action in August 2002, the RO increased the evaluation for service-connected PUD to 30 percent, effective January 29, 1991, and to 60 percent, effective January 24, 1999. (Because this increase did not constitute a full grant of the benefit sought, the issue remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993).). The veteran's appeal was returned to the Board, which in February 2003 denied an evaluation in excess of 30 percent for PUD for the period from January 29, 1991 to January 24, 1999, and also denied an evaluation in excess of 60 percent for PUD from January 24, 1999. Thereafter, the veteran appealed the Board's February 2003 to the Court. Also that same month, the RO granted the veteran entitlement to a total disability rating based on individual unemployability (TDIU). The award of TDIU was made effective January 24, 1999. The appellant appealed the January 24, 1999, effective date. In December 2003, the veteran's representative and VA General Counsel filed a joint motion to vacate that part of the Board's February 2003 decision that denied higher evaluations for PUD. By an Order dated in January 2004, the Court granted the motion, vacated the Board's February 2003 decision that denied an evaluation in excess of 30 percent for PUD for the period from January 29, 1991 to January 24, 1999, and an evaluation in excess of 60 percent for PUD from January 24, 1999, and remanded the matter to the Board for re-adjudication. In August 2004, the Board issued separate remands for the veteran's claims for a higher evaluation for PUD and also for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of TURP including loss of use of creative organ (now in appellate status). Following further development of the record regarding both issues, the agency of original jurisdiction (AOJ) continued its denial of the veteran's claims and returned these matters to the Board. In a February 2006 decision, the Board denied an evaluation in excess of 30 percent for PUD from January 29, 1991 to January 24, 1999; denied an evaluation in excess of 60 percent for PUD from January 24, 1999; and also denied an effective date earlier than January 24, 1999 for the grant of a TDIU. In a separate February 2006 decision, the Board denied the veteran's claim for compensation under the provisions of 38 U.S.C.A. § 1151 for residuals of TURP, including loss of use of a creative organ. Thereafter, the veteran appealed both February 2006 decisions of the Board to the Court. In October 2007, a representative of the veteran and VA's General Counsel filed a joint motion to vacate and remand the two February 2006 Board decisions. By an Order dated in November 2007, the Court granted the motion, vacated the Board's February 2006 decisions and remanded the matters to the Board for re-adjudication. In February 2008, a VA Form 21-22a (Appointment of Individual as Claimant's Representative) was received by the Board in which the veteran granted a sole power-of-attorney to Robert V. Chisholm. In February 2008, the Board contacted the veteran's representative by letter and notified him of the right to submit additional argument and/or evidence within 90 days concerning the remanded issues on appeal. Later that same month, the veteran's representative submitted to the Board a letter in which he noted, in particular, that the veteran was requesting a videoconference hearing before a member of the Board. The representative requested that the videoconference hearing be scheduled and that he be notified of the date of the hearing. Pursuant to 38 C.F.R. § 20.700 (2007), a hearing on appeal will be granted to an appellant who requests a hearing and is willing to appear in person. See also 38 U.S.C.A. § 7107 (West 2002) (pertaining specifically to hearings before the Board). Under these circumstances, and in accordance with his request in February 2008, the veteran must be provided an opportunity to present testimony during a videoconference hearing. In view of the foregoing, this case must be REMANDED for the following action: The RO should schedule the veteran for a videoconference hearing before a member of the Board. The RO should notify the veteran and his attorney of the date and time of the hearing in accordance with 38 C.F.R. § 20.704(b) (2007). The veteran and his attorney should be given opportunity to review the file, if they so desire, and prepare for the hearing. The file should thereafter be returned to the Board in advance of the hearing. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).