Citation Nr: 1802410	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  10-04 682	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Anchorage, Alaska


THE ISSUE

1.  Entitlement to service connection for lung cancer as a result of exposure to ionizing radiation.

2.  Entitlement to service connection for gastrointestinal bleeding.

3.  Entitlement to service connection for gastritis.

4.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Benjamin Krause, Attorney at Law

WITNESS AT HEARING ON APPEAL

The appellant 


ATTORNEY FOR THE BOARD

C. Bosely, Counsel


REMAND

The Veteran served on active duty from December 1954 to May 1963.  He died in February 2010 and the appellant is his surviving spouse.  She has been substituted in this appeal.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2009, October 2009, December 2009, and November 2012 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).  

In March 2013, the appellant provided testimony on the lung cancer issue before a Veterans Law Judge (VLJ) by videoconference hearing.  The VLJ that conducted that hearing is retired from the Board. In March 2015, the appellant provided a written statement indicating that she did not wish to have a hearing before another VLJ.

In May 2013, the Board remanded the issue of entitlement to service connection for lung cancer for further development.

In December 2014, the appellant provided testimony on the accrued benefits issues before the undersigned VLJ by videoconference hearing. 

In December 2015, the Board reopened the previously denied claims of service connection for gastritis and gastrointestinal bleeding.  The Board also granted higher ratings for the Veteran's hernia repairs and scars.  The Board remanded the remaining claims for additional development.

In June 2017, the Board requested a medical expert opinion from a health care professional in the Veterans Health Administration (VHA) of the Department of Veterans Affairs.  The Board determined that such an expert opinion was necessary to address the complex medical questions raised by the appeal.  38 C.F.R. §20.901(a), (d).  The opinion (issued in July 2017) was received by the Board in October 2017, at which time the appellant was furnished a copy of the opinion and was provided 60 days to submit a response.  She responded in November 2017 by requesting that the Board remand the matter for consideration at the RO level.  

In November 2017, the appellant's representative, a private attorney, asked for additional time to secure a medical expert opinion.  The Board interprets this as a motion for an extension of time to submit additional evidence pursuant to 38 C.F.R. § 20.1304(b).  The Board finds that this motion is moot in light of the appellant's submission earlier in November 2017 expressly stating that she was not waiving RO consideration of additional evidence and requesting that the case be remanded to the RO.  The representative will now have time to submit additional evidence.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2).

This case must be remanded for issuance of a supplemental statement of the case (SSOC).  As indicated above, the Board obtained a VHA medical expert opinion in July 2017.  In response, the appellant informed the Board in November 2017 that she was not waiving RO consideration of the additional evidence and requested that the case be remanded to the RO.

Accordingly, the case is REMANDED for the following action:

After completing any preliminary action needed, readjudicate the remanded appeal, including with consideration of the July 2017 VHA opinion.  If any benefit sought on appeal remains denied, furnish to the appellant and her representative an appropriate SSOC.  The appellant and her representative should be afforded the appropriate time period to respond.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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 case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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.



_________________________________________________
RYAN T. KESSEL 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, 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).