Citation Nr: 1316200 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 04-16 753A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for service-connected gastrointestinal disabilities to include separate disability ratings for irritable bowel syndrome, peptic acid disease, gastritis, hiatal hernia, and dysphasia. 2. Whether there was clear and unmistakable error (CUE) in a March 1983 rating decision denying service connection for gastroenteritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to February 1982. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. That rating decision denied service connection for various gastrointestinal disabilities including: hiatal hernia, dysphagia, irritable bowel syndrome, and hemorrhoids. Ultimately, service connection for all of these disabilities was granted by subsequent Board decisions and rating decisions. All the separate diagnoses were listed as a single disability and a single disability rating was assigned. See, 38 C.F.R. § 4.114. The Veteran disagreed with the single disability rating assigned. He asserted that separate disability ratings for each listed diagnosis were warranted. In a September 2010 decision, the Board, in part, denied entitlement to separate disability ratings in excess of 40 percent for the Veteran's service-connected gastrointestinal disabilities, to include irritable bowel syndrome, peptic acid disease, gastritis, hiatal hernia, dysphasia, and hemorrhoids. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in a May 2012 Memorandum Decision, the Court remanded the denials back to the Board for readjudication. Specifically, with respect to the disability rating issue, the Court found that the Board inadequately explained why a separate disability rating for hemorrhoids was not assigned. Pursuant to the Court Order, the Board remanded the case in November 2012, and a March 2013 rating decision granted a separate disability rating for the Veteran's service-connected hemorrhoids. With a separate disability rating assigned for hemorrhoids in compliance with the May 2012 Court Order, the Board has recharacterized the issue to account for the separate rating. The issue involving CUE is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's gastrointestinal disabilities are manifested by recurrent nausea, vomiting, abdominal pain and cramping, alternate diarrhea and constipation, and difficulty eating solid foods. 2. The Veteran's gastrointestinal disabilities are not manifested by hematemesis, melena, anemia, weight loss productive of impairment of health, severe hemorrhages, or large ulcerated or eroded areas. 3. A separate 20 percent disability rating is assigned for the Veteran's service-connected hemorrhoids. CONCLUSION OF LAW The criteria for a disability rating in excess of 40 percent for the gastrointestinal disabilities, to include separate disability ratings for irritable bowel syndrome, peptic acid disease, gastritis, hiatal hernia, and dysphasia, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.113, 4.114, Diagnostic Codes 7304, 7307, 7319, 7346 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006). In such cases, where the appellant then files an notice of disagreement (NOD) with the initial rating and/or the effective date assigned, he has initiated the appellate process and different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in sections 7105(d) and 5103A of the statute. Id., see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); 38 U.S.C.A. § 5103(A), 7105(d). Accordingly, once service connection was granted and a disability rating and effective dates were assigned for the individual gastrointestinal disabilities claimed by the Veteran and he expressed disagreement that separate disability ratings, rather than a single rating, were warranted, section 5103(a) notice was no longer required. VA has obtained service treatment records; private medical records; VA treatment records; and VA examination reports; and has assisted the appellant in obtaining evidence. VA has also afforded him the opportunity to present statements and evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file, and he has not contended otherwise. The Board finds that the VA examinations obtained in this case are adequate. The examiner performed physical examinations, considered the Veteran's statements, and provided the medical information necessary to address the rating criteria in this case. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. The RO initially granted service connection for gastritis and peptic acid disease in a February 2004 rating decision and assigned a 40 percent disability rating. Thereafter, the RO effectuated the Board's award of service connection for dysphasia and a hiatal hernia, evaluated these disorders with the already service connected peptic acid disease and gastritis, and continued the combined 40 percent disability rating. In May 2008, the RO granted service connection for irritable bowel syndrome and hemorrhoids, evaluated these disorders with the already service-connected gastrointestinal disorders, and continued the combined 40 percent disability rating. In September 2008, the RO issued an SOC regarding the Veteran's contention that his hiatal hernia should be separately rated under Diagnostic Code (DC) 7346. In July 2009, the RO issued an additional SOC regarding the Veteran's additional contention that his irritable bowel syndrome should be rated separately under DC 7319. The Veteran continues to assert that he is entitled to separate ratings in excess of 40 percent for his gastrointestinal disabilities, with each disability warranting its own separate disability rating. As noted in the introduction section, a separate disability rating for hemorrhoids was assigned in a March 2013 RO rating decision. Accordingly, the Board must consider the remaining issue of entitlement to a disability rating in excess of 40 percent for service-connected gastrointestinal disabilities to include separate disability ratings for irritable bowel syndrome, peptic acid disease, gastritis, hiatal hernia, and dysphasia individually. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the 'present level' of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the 'present level' of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period that the claim has been pending. This appeal is from the initial disability rating assigned upon the award of service connection for individual gastrointestinal disabilities which were then assigned a single evaluation. The entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service connected gastrointestinal disabilities are "diseases of the digestive system." With such diseases, particularly within the abdomen, which, while differing in the site of pathology, they produce a common disability picture characterized by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Consequently, certain coexisting diseases in this area, as indicated by the instructions under the title "Diseases of the Digestive System," do not lend themselves to distinct and separate disability evaluations without violating the fundamental principle relating to pyramiding as outlined in 38 C.F.R. § 4.14. 38 C.F.R. § 4.113 (emphasis added). Thus, ratings under DCs 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive will not be combined with each other. A single evaluation will be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. Therefore, under the regulation, a determination must be made regarding the predominant disability picture. The Veteran's gastrointestinal disabilities are rated at a 40 percent disability rating and are rated under DC 7304 for gastric ulcers. 38 C.F.R. § 4.114. As such, the RO determined that the predominant disability picture was portrayed as gastric ulcers. According to DC 7304, gastric ulcers are evaluated as duodenal ulcers under DC 7305. Under DC 7305, a 40 percent rating contemplates a moderately severe gastric ulcer that is less than severe but that causes impairment of health manifested by anemia and weight loss, or that results in recurrent incapacitating episodes averaging ten days or more in duration at least four or more times a year. A 60 percent rating contemplates a severe gastric ulcer manifested by pain that is only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. The 60 percent rating is the maximum assignable disability rating under this DC. 38 C.F.R. §§ 4.114, DC 7305. The Veteran's service-connected digestive diseases include gastritis, irritable bowel syndrome, and hiatal hernia, and can also be evaluated under 38 C.F.R. § 4.114, DCs 7307 (gastritis), 7319 (irritable colon syndrome), and 7346 (hiatal hernia). Under DC 7307, a 30 percent disability rating is warranted for chronic gastritis with multiple small eroded or ulcerated areas and symptoms. A 60 percent disability rating contemplates chronic gastritis identified by a gastroscope with severe hemorrhages or large ulcerated or eroded areas. 38 C.F.R. § 4.114, Diagnostic Code 7307. Under DC 7319, a 30 percent evaluation, the maximum allowed, is assessed for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation and more or less constant abdominal distress is shown. 38 C.F.R. § 4.114, DC 7319. Finally, under DC 7346, for hiatal hernia, a 30 percent rating is warranted for persistently recurrent epigastric distress with dysphasia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The maximum rating of 60 percent is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346. The evidence for review in this case consists of service treatment records, VA treatment records, VA examination reports, private treatment records, and lay statements. The Veteran submitted numerous statements authored by himself as well as his wife and daughters. In a March 2005 statement, the Veteran indicated that his stomach problems precluded him from doing his job. He indicated that he had constant vomiting and nausea, abdominal pain, difficulty swallowing food, bloating, and developed a hiatal hernia and hemorrhoids. The Veteran submitted literature regarding the signs and symptoms relating to hiatal hernia and irritable bowel syndrome. In numerous statements, the Veteran asserted that his hiatal hernia, dysphasia, and irritable bowel syndrome were not related to his peptic acid disease and gastritis and therefore should separately evaluate as such. The Board also acknowledges the statements submitted by the Veteran's wife and daughters which in large part discuss the same symptoms the Veteran has described, to include nausea, vomiting, abdominal pain, and difficulty eating solid food. They also indicated how these symptoms have affected the Veteran's life and their own lives. The Veteran's statements describing his symptoms are considered to be competent evidence. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, however, the competent medical evidence discussed below is of far greater probative value. A December 1983 private emergency room report reveals that the Veteran sought treatment for symptoms of stomach ache, epigastric pain, nausea, vomiting, and diarrhea. Physical examination revealed epigastric tenderness. He was treated with medication and fluids. In a March 1990 private medical record, the Veteran complained of recurrent episodes of nausea and vomiting, which he indicated had increased in severity to include daily vomiting and loss of weight. He complained of abdominal discomfort and back pain. On examination, the Veteran was assessed with a small abdominal wall hernia, recurrent nausea and vomiting, probably some variant of gastroesophageal reflux, and chronic back pain. A VA examination was performed in January 1992 in connection with his petition to reopen his claim of service connection for a stomach condition, to include hernias. During that examination, the Veteran gave a history of remarkable motion sickness, dizziness, nausea, vomiting, and at times epigastric and back pain. The examiner indicated that there was a history of motion sickness and agoraphobia manifested by complaints of dizziness, lightheadedness, faintness, nausea and vomiting. In a handwritten note found on the January 1992 examination report, it was indicated that the Veteran underwent a GI series which was normal. The Veteran was assessed with psychophysiological GI reaction manifest by persistent nausea and vomiting. A February 1992 radiological report indicated that the Veteran's esophagus, stomach, duodenum, duodenal loop, and proximal small bowel were all normal. A February 2002 VA treatment record reveals that the Veteran was seen for complaints of joint pain and sleep disturbance. At that time he was observed to be "well-developed and nourished; in no acute distress." Because of the Veteran history of gastrointestinal problems, specific medication was considered when treating his symptoms. Other VA treatment record dated in 2002 and 2003 primarily show treatment for non-gastrointestinal disorders. However gastroesophageal reflex is noted on the Veteran's problem list. Another VA examination was performed in December 2003. During that examination, the Veteran complained of constant belching, a feeling of a full stomach, recurrent and daily nausea, vomiting, sharp epigastric pain, bloating, and burning sensation. He indicated only being able to eat saltines once a day, dizziness, weakness, chronic nausea, and pain which caused him to be short of breath. He had recurrent emesis two to three times a week, nausea two to three times a day, daily abdominal cramps, and daily alternating diarrhea and constipation. On examination, there was no sign of anemia. No material weight loss was shown. His current weight was 156 pounds. He had previous documented weights of: 140 in 1990; 164 in February 2002; and, 153 in August 2003. There was tenderness noted throughout the abdomen although the abdomen was soft, flat, and non-distended. He had a well-healed umbilical herniorrhaphy scar above the umbilicus. No masses or hepatosplenomegaly were found. An upper GI study performed in November 2003 showed no hiatal hernia or reflux. However, there was evidence of chronic mild gastritis with moderate coarsening of the gastric regal folds. He was diagnosed with chronic peptic acid disease with chronic gastritis. During a July 2004 VA GI consult, the Veteran indicated that he had experienced chronic abdominal pain for more than 20 years which included cramping and occasional sharp pain in the epigastric region. He also indicated nausea, vomiting, intermittent difficulty swallowing solid food, and diarrhea. He was assessed with a functional disorder and irritable bowel syndrome with functional dyspepsia. During a September 2004 GI consult, no ulcers, inflammation, stricture, or tumors were found in the esophagus. There was, however, a hiatal hernia noted. The duodenum was normal and there were no ulcers or masses seen in the stomach. An October 2005 VA treatment record reveals that the Veteran reported a history of chronic gastrointestinal problems. He reported complaints of epigastric pain with difficulty swallowing. He stated that he generally eats a mix of liquid and soft diet and reported vomiting up to twice a week after eating a full meal. He also reported having 6 to 7 loose stools a day and having to get up at night to defecate. Abdominal tenderness was noted on examination. Another VA examination of the Veteran was performed in April 2006 wherein the examiner reviewed the claims file and provided an extensive history of the Veteran's stomach disabilities. The Veteran was assessed with chronic gastritis and hiatal hernia with gastroesophageal reflux disease. The examiner also noted a diagnosis of chronic gastritis. There was no evidence that the Veteran had duodenitis, esophagitis, or ulcer disease. At that time, the examiner noted that dysphasia is a symptom or condition that is due to his service connected condition. He also indicated that the claim of hemorrhoids and irritable bowel syndrome is unfounded. Noted weights were: 155 in July 2004; 167 in March 2005; and 165 in February 2006. There was no laboratory evidence of anemia on review of prior test results. In April 2008 another VA examination of the Veteran was conducted. He complained of regular nausea, diarrhea, abdominal pain, cramping with occasional sharp pain. The diagnosis was irritable bowel syndrome related to his already service-connected gastrointestinal disabilities. The Veteran was also seen for complaints of hemorrhoids during a separate April 2008 VA examination. During the examination, the Veteran complained of itching, pain, swelling, and bouts of diarrhea. The examiner assessed the Veteran with internal and external hemorrhoids and opined that they were related to his irritable bowel syndrome. Again, service connection has been established for hemorrhoids and a separate 20 percent disability rating has been assigned. In a November 2008 treatment note, it was noted that the Veteran's irritable bowel syndrome was not getting any better and might be getting worse despite the medication and dietary modification. It was noted that the Veteran's quality of life had diminished and he was unable to maintain gainful employment as a result of this condition. In February 2013 a VA Compensation and Pension examination of the Veteran was conducted with respect to assigning him a separate disability rating for his service-connected hemorrhoids. No evidence of anemia was found to be present. As indicated above, diseases of the digestive system produce a common disability picture characterized in the main by varying degrees of abdominal distress or pain, anemia and disturbances in nutrition. Thus, ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 inclusive cannot be combined with each other. A single evaluation must be assigned under the diagnostic code which reflects the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. The Board finds that the Veteran's various gastrointestinal disabilities are separate and distinct disabilities. However, for rating purposes, the Board is restricted to evaluating these disabilities under a single disability rating which reflects the predominant disability picture. Id. After reviewing the pertinent diagnostic codes, the Board finds that the Veteran's peptic acid disease rated under DC 7304 is the predominant disability and affords the Veteran the highest disability rating. The Veteran's peptic acid disease manifests in consistent problems with vomiting which is listed for a 60 percent rating. However, there is no evidence of hematemesis or melena or manifestations of anemia and/or weight loss producing of definite impairment of health. The rating criteria for a 40 percent disability rating indicate that the Veteran's disability impairs his health by manifestations of anemia and weight loss or recurrent incapacitating episodes averaging 10 days or more. However, as provided above, the medical records do not include problems with anemia or weight loss. And, there is no indication that he has recurrent incapacitating episodes lasting 10 days or more. As such, the Veteran's symptoms do not fall within the 40 percent rating. Id. Instead, the Veteran's symptoms predominately fall under the 20 percent disability rating under DC 7304. However, as provided in the instructions, an elevation to the next higher evaluation is warranted given the overall severity of the Veteran's service-connected disabilities. As such, a rating of 40 percent for is warranted. See 38 C.F.R. § 4.114, DC 7304. Moreover, there is no evidence of anemia, hematemesis or melena, recurrent incapacitation episodes, significant weight loss, severe hemorrhages, persistent bleeding, large ulcerated or eroded areas of the digestive system which would warrant a rating in excess of 40 percent under the relevant diagnostic codes noted above for gastritis, hiatal hernia, hemorrhoids, or irrigable bowel syndrome. See 38 C.F.R. § 4.114, DCs 7307, 7336, 7346, 7319. With regard to the Veteran's irritable colon syndrome, the Board acknowledges that the medical records indicate alternating diarrhea and constipation as well as abdominal pain which meet the maximum scheduler rating for DC 7346. However, the maximum rating provided for this disability is a 30 percent rating. As indicated above, this disability does not provide the Veteran with the highest possible rating and is thus not found to be the predominant disability. See 38 C.F.R. § 4.114, DC 7319. Moreover, the Board has reviewed the remaining diagnostic codes for diseases of the digestive system and finds that the evidence does not support a rating under any alternate diagnostic codes relevant to the disabilities at issue. See 38 C.F.R. § 4.114. The Board has also considered whether the Veteran was entitled to a "staged" rating for his service-connected gastrointestinal disabilities. See Hart, 21 Vet. App. 505. However, the Board finds that the Veteran's disabilities have not been more disabling than are currently rated. Additionally, the Board has also considered whether a referral for extra schedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VAOPGCPREC 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (a threshold finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate is required for extra schedular consideration referral). The schedular evaluation for the Veteran's gastrointestinal disabilities is adequate. The Veteran disagrees with the rating primarily on the basis that he believes he is entitled to separate ratings for his various disabilities. As provided above, such a contention is precluded pursuant to 38 C.F.R. § 4.114. In other words, he does not have any symptoms from his service-connected disorders that are unusual or are different from those contemplated by the schedular criteria. The Veteran does not have "exceptional or unusual" disabilities; he merely disagrees with the assigned evaluation for his level of impairment. The available schedular evaluations for these service-connected disabilities are adequate. Referral for extra schedular consideration is not warranted. See VAOPGCPREC 6-96. Further inquiry into extra schedular consideration is moot. See Thun, 22 Vet. App at 115. Finally, consideration of a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) is not warranted. The Veteran's prior claim of TDIU was adjudicated and granted in a separate rating decision dated July 2010. Based on the foregoing, the Board finds that a rating in excess of 40 percent for the Veteran's gastrointestinal disabilities is not warranted. As there is a preponderance of evidence against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 40 percent for service-connected gastrointestinal disabilities, to include separate disability ratings for irritable bowel syndrome, peptic acid disease, gastritis, hiatal hernia, and dysphasia, is denied. REMAND In June 2012, the RO issued a rating decision which denied there was CUE in a March 1983 rating decision denying service connection for gastroenteritis for the purposes of establishing an earlier effective date for service connection. Later in June 2012, the Veteran filed a VA Form 9 which serves as a Notice of Disagreement (NOD) with this decision. A Statement of the Case (SOC) has not been issued on these issues. When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Thus the above issue is remanded for issuance of an SOC and to give the Veteran the opportunity to complete an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Provide a Statement of the Case which addresses the issue of whether there was CUE in a March 1983 rating decision denying service connection for gastroenteritis. If, and only if, an appeal is perfected by a timely filed substantive appeal, should the issue be certified to the Board. The appellant has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs