Citation Nr: 0945371 Decision Date: 11/30/09 Archive Date: 12/04/09 DOCKET NO. 90-43 344 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected gastritis and duodenitis with hiatal hernia. 2. Entitlement to service connection for depression, claimed as secondary to service-connected gastritis and duodenitis. 3. Entitlement to service connection for an intestinal motility disorder/irritable bowel syndrome (IBS), claimed as secondary to service-connected gastritis and duodenitis. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Karen Abatecola ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The Veteran had active service from January 1966 to December 1968. He was born in 1947. This appeal arose before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) issued in December 1989, August 1999, and April 2000. The issue of entitlement to an increased evaluation for the service-connected gastritis and duodenitis was remanded by the Board for additional development in December 1990, July 1991, December 1992, and June 1994. A November 1994 rating action increased the rating assigned to the gastritis and duodenitis to 30 percent. In June 1995, the Board issued a decision denying an evaluation in excess of 30 percent for the gastritis and duodenitis, and the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (the Court). In October 1996, a Joint Motion for Remand was filed, which requested that the Court return the case to the Board, on the ground there had been outstanding VA records which had not been obtained and considered by the Board at the time of the June 1995 decision. On October 16, 1996, the Court issued an Order returning the case to the Board. Copies of the Joint Motion and the Order are in the claims folder. In March 2001, the Board remanded the issues of entitlement to an evaluation in excess of 30 percent for the service- connected gastritis and duodenitis and entitlement to a total disability evaluation based on individual unemployability (TDIU) to the RO for additional development. The Board also found that the claims for secondary service connection for depression and an intestinal motility disorder/irritable bowel syndrome (IBS) were intertwined with the issues on appeal. In a decision in July 2007, the Board denied entitlement to an initial evaluation in excess of 30 percent for service- connected gastritis and duodenitis with hiatal hernia; denied entitlement to service connection for depression, claimed as secondary to service-connected gastritis and duodenitis; denied entitlement to service connection for an intestinal motility disorder/irritable bowel syndrome (IBS), claimed as secondary to service-connected gastritis and duodenitis; and denied entitlement to a TDIU. A VA Form 21-22a is of record assigning the power of attorney to the Veteran's representative, his wife, shown on the first page of the present decision, dated January 18, 2008. Her appointment is authorized by 38 C.F.R. § 14.630. Since the Board's 2007 decision, the Veteran's representative has submitted extensive arguments on a wide range of subjects, including specific and detailed requests for the Board to obtain an outside medical opinion, citing the provisions to so do in January 2008. In correspondence from a Board Deputy Vice Chairman to the Veteran's representative, dated July 10, 2008, her correspondence was acknowledged. Therein, the Board determined to vacate the Board's 2007 decision, based on her assertion that additional evidence was of record that had not been addressed by the Board. The Board agreed to reissue a subsequent decision. In December 2008, the Veteran's representative submitted a private medical opinion, from C.N.B., M.D., dated November 2008. The Board's decision to vacate the July 2007 decision was issued in March 2009. In the interim, in late February 2009, the Veteran's representative had withdrawn her request for the Board to obtain a medical expert opinion. In April 2009, the undersigned Veterans Law Judge directed, in pertinent part, that the docket date shown on the cover of this decision be substituted for a 1999 docket date, based on when an earlier substantive appeal was filed. In the meantime, the Board had also sent the case out for medical expert opinions, and the appellant and his representative were so notified. The medical expert opinions, dated in June and August 2009, were received by the Board in October 2009. The Veteran's representative has submitted multiple duplicative documents and since argued, initially, that the opinions were illegally obtained by the Board. More recently, in numerous other essentially duplicative documents submitted to the Board, she has demanded a remand for initial VARO consideration (absent her providing waiver of such review) of the recently acquired medical expert opinions, and for RO review of the evidence now in the file including the most recent private medical opinion, the two other medical expert opinions cited above, and her written arguments and presentations. In that regard, although there would be no need for waiver for the Board's acquisition of the most recent medical expert opinions pursuant to 38 U.S.C.A. § 7109, 38 C.F.R. § 20.901(a), it is noted that, although she has submitted numerous copies of the opinion by Dr. C.N.B. and documents and/or arguments in relation thereto, including those in which she states that adequate evidence is now of record for a final decision, it does not appear that she has ever provided a written, stated, or implied waiver of initial RO consideration of that opinion, pursuant to 38 C.F.R. § 19.37. The further delay in this case is unfortunate, but the Board has no option but to remand the case as requested by the Veteran's representative. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND The case is REMANDED for the following action: (Please note, this appeal should be considered to have been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The case should be reviewed and all evidence now of record addressed, including private and VA medical expert opinions. 3. If the decision remains unsatisfactory, a comprehensive SSOC should be issued, the Veteran and his representative given reasonable opportunity to respond and the case should be returned to the Board for further appellate review. The Veteran need do nothing further until so notified. 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. 2009). ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2009).