Citation Nr: 1002189 Decision Date: 01/13/10 Archive Date: 01/22/10 DOCKET NO. 92-17 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a gastrointestinal disorder, claimed as a stomach disorder, gallbladder disease, or pancreatitis. 2. Entitlement to service connection for diabetes mellitus. (Other issues are the subject of another decision.) REPRESENTATION Appellant represented by: Leo P. Dombrowski, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran had active service from August 1965 to August 1967. In a November 1991 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for a "stomach disorder." In a December 1991 rating decision the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for gallbladder disease, and in March 1994 (following the publication of new regulations pertaining to Agent Orange related diseases) the RO again denied service connection for pancreatitis. The Veteran perfected an appeal of the RO's November 1991 denial of service connection for a "stomach disorder," but he did not separately perfect an appeal of the denials of service connection for gallbladder disease and pancreatitis. In his February 1992 substantive appeal, however, he defined the disabilities for which he had claimed service connection as a "stomach disorder" as the gallbladder disease and pancreatitis. The Board remanded the claim to the RO in December 1994 for further development and consideration. In an August 2001 rating decision, the RO denied entitlement to service connection for diabetes mellitus based on the substantive merits of the claim. In a December 2003 decision, the Board found that new and material evidence was submitted to reopen the claim of entitlement to service connection for a gastrointestinal disorder, claimed as a stomach disorder, gallbladder disease, or pancreatitis. The Board denied that claim on the merits and entitlement to service connection for diabetes mellitus on the merits. The Veteran entered a timely appeal to the U. S. Court of Appeals for Veterans Claims (Court). By Order dated in October 2006, the Court remanded the decision to the Board for readjudication, finding that the Board erred in adjudicating the Veteran's claim for service connection for a gastrointestinal disorder, claimed as a stomach disorder, gallbladder disease, or pancreatitis, before this issue had been addressed by the RO. The diabetes mellitus claim was also remanded, because the Board erred in not providing adequate reasons and bases regarding whether the Veteran was entitled to the presumption of service connection for diabetes mellitus due to Agent Orange exposure. The Court also noted that there was no medical opinion regarding this matter. The Board remanded the claim in January 2008 for further development and consideration. The appeal is, again, REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A VA diabetes mellitus examination was conducted in July 2008. The claim was remanded, in part, to obtain a medical opinion regarding the etiology of the Veteran's pancreatitis, diabetes, and current gastrointestinal disorder. The VA physician opined that the Veteran's current GERD was not related to the Veteran's inservice gastrointestinal complaints, but was due to postservice gastrointestinal intolerance or vitamin intake. The physician also stated that the Veteran's diabetes mellitus is not type II that is associated with Agent Orange exposure, and was caused by his pancreatitis which, in turn, was caused by his gall bladder disease, chronic cholecystitis, acalculus (not having gallstones) which necessitated gall bladder removal in July 1971. This opinion, therefore, raises the question of the etiology of the Veteran's chronic cholecystitis, acalculus. The Veteran's appeal for service connection for diabetes mellitus is inextricably intertwined with this gastrointestinal claim, inasmuch as a grant of service connection for chronic cholecystitis, acalculus could affect the outcome of the diabetes mellitus claim. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996). And therefore, further consideration of this claim must be deferred to avoid piecemeal adjudication. See Bagwell v. Brown, 9 Vet. App. 337 (1996). Accordingly, the case is REMANDED for the following action: 1. Obtain an opinion from the VA physician who conducted the July 2008 VA diabetes mellitus examination as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the Veteran's chronic cholecystitis, acalculus, which necessitated gall bladder removal in July 1971 is medically related to the Veteran's active military service, including his herbicide exposure. The Veteran's entire claims file, to include a complete copy of this REMAND should be provided to the physician. If that physician is unavailable, obtain an opinion from another appropriate physician. That physician should determine if another examination is needed prior to rendering his/her opinion. 2. Then, readjudicate the claims on the merits. If any claim remains denied, issue an appropriate supplemental statement of the case and give the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, 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.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ RONALD W. SCHOLZ 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) (2009).