BVA9506386 DOCKET NO. 89-17 478 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for a strain of the cervical spine, currently evaluated as 10 percent disabling. 2. Entitlement to an increased rating for a duodenal ulcer, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alan S. Peevy, Associate Counsel INTRODUCTION The veteran had active military service from February 1942 to January 1946. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 1988 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO). A notice of disagreement was reportedly received in January 1989, and a statement of the case was issued in April 1989. A substantive appeal was received in April 1989. The veteran testified at a personal hearing at the RO in May 1989. The decision was subsequently remanded by Board decision dated in June 1990. Following subsequent development by the RO, the Board denied the veteran's appeal as to both claims by decision dated in June 1991. The veteran appealed the Board's decision to the United States Court of Veterans Appeals (Court). By order dated in July 1992, the Court vacated the Board's June 1991 decision and remanded the case for further development. [citation redacted]. By decision dated in March 1993, the Board in turn remanded the case to the RO. Supplemental statements of the case were issued in February and March 1994, and the case is now again before the Board for appellate review. The veteran is represented by The American Legion. REMAND The provisions of 38 C.F.R. § 20.1304(a) (1994) afford an appellant a ninety (90) day period to submit additional evidence beginning on the date of mailing of notice to the appellant that his or her claim has been certified to the Board for appellate review. Any additional evidence accepted by the Board under this provision must be referred to the RO for review and preparation of a supplemental statement of the case unless this procedural right is waived by the appellant. 38 C.F.R. § 20.1304(c) (1994). In a Statement in Support of Claim (VA Form 21-4138) received in February 1994, the veteran requested that consideration be given to a "lower GI series" which the veteran reported was conducted in September or October 1993. The veteran also referred to this study as a "barium enema." The RO was unable to locate records pertinent to that period of time and requested clarification from the veteran. In August 1994, the RO received another VA Form 21- 4138 in which the veteran reported that the "lower GI series" had been conducted in December 1992. In a December 1994 letter, the RO informed the veteran that another search was still unsuccessful in retrieving any documentation of the claimed December 1992 study. By letter dated in January 1995, the veteran was informed that his case was being placed on the Board's docket and that he could submit additional evidence during the ensuing 90 day period. In February 1995, the Board received additional evidence from the RO and from the veteran's representative. Included in this evidence were reports related to a December 1, 1992, radiological study of the veteran's digestive system using a barium enema. However, it does not appear that the RO has considered this additional evidence, nor is there any documentation in the claims file showing that the veteran has waived initial review of this additional evidence by the RO as required under 38 C.F.R. § 20.1304(c) (1994). The Board is cognizant of the fact that the present case has been in appellate status for some time. However, the Board is not free to ignore regulatory law by which the Department of Veterans Affairs (VA) is governed. Moreover, in his various communications, the veteran has specifically requested that this particular additional evidence be considered. Under the circumstances, further preliminary action is necessary before the Board may proceed with its appellate review. Additionally, in view of the need for further action by the RO to ensure compliance with procedures designed to afford the veteran due process of law, the Board believes it would be appropriate and helpful to expand the medical record by obtaining more current medical evidence pertinent to the issues on appeal. For the reasons set forth above, the case is hereby REMANDED to the RO for the following actions: 1. The veteran should be scheduled for VA orthopedic and gastrointestinal examinations by appropriate specialists for the purpose of ascertaining the severity of his service-connected strain of the cervical spine and his service-connected duodenal ulcer. It is imperative that the claims file be made available to the examiners for review prior to the examinations. The examinations should be conducted according to the guidelines set forth in the VA's Physicians' Guide for Disability Evaluation Examinations. All medically appropriate tests should be accomplished, and range of motion of the cervical spine should be measured and clearly reported. 2. After completion of the above, the RO should review the expanded record (including the additional evidence received in February 1995) and determine whether the veteran's claims can be granted. Regardless of the RO's determinations, an appropriate supplemental statement of the case should be furnished to the veteran and his representative. After affording the veteran and his representative a reasonable opportunity to respond, the case should be returned to the Board for further appellate review. The purpose of this remand is to comply with applicable regulatory law and to ensure that the veteran is afforded due process of law. The Board intimates no opinions as to the eventual determinations to be made in this case. EUGENE A. O'NEILL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).