Citation Nr: 0004119 Decision Date: 02/16/00 Archive Date: 02/23/00 DOCKET NO. 98-10 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for chronic gastritis. 2. Entitlement to an evaluation in excess of 40 percent for cervical spine disability characterized as hypertrophic degenerative joint disease, discogenic disease, 6th cervical intervertebral space with radiculopathy and unfavorable ankylosis. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board ATTORNEY FOR THE BOARD J. Johnston, Counsel INTRODUCTION The veteran retired from active military service in January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June and September 1997 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. REMAND In 1949 the veteran appointed the Mississippi State Veterans Affairs Commission, now known as the Mississippi Veterans Affairs Board, as his representative for VA claims. The veteran no longer lives in Mississippi and the Mississippi Veterans Affairs Board is unable to assist him with his VA claims. The veteran should be given the opportunity to select another representative. A review of the file shows that the veteran has been in receipt of a 90 percent combined evaluation for multiple disabilities effective from November 1992. In an August 1996 rating action, the RO granted the veteran a total rating based upon individual unemployability due to service- connected disability, also made effective from November 1992. In June 1997, the RO issued a rating action granting service connection for chronic gastritis on a secondary basis (apparently for medication prescribed for service-connected arthritis), and assigned a 10 percent evaluation effective from February 1996. In September 1997, the RO issued a rating action denying an evaluation in excess of 40 percent for cervical spine disability. The veteran has perfected appeals as to the assigned evaluations for chronic gastritis and for cervical spine disability. It is important to note that the issue of the proper compensable evaluation for chronic gastritis is subject to the Court of Appeals for Veterans Claims (Court's) recent decision of Fenderson v. West, 12 Vet. App. 119 (1999). Because the veteran disagreed with the original or initial rating award for chronic gastritis, the issue remains an original claim, and is not a new claim for an increase. In such cases, separate compensable evaluations must be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the pendency of the appeal, a practice known as "staged ratings." The RO issued statements of the case, the veteran timely perfected appeals, and the case was forwarded to the Board. However, after the veteran's claims folder had been received at the Board, the veteran wrote a letter directly to the Board in December 1999 with attached records of a private MRI of the cervical spine from September 1999, a private gastroscopy from late April 1999, and statements from two private physicians, Dr. J. Lokin and Dr. J. Organo. The veteran's cover letter forwarding these records contained no waiver of initial RO consideration, and also contained the veteran's complaints regarding the inadequacy of VA examinations. Records on file show that the veteran received VA digestive and orthopedic examinations in April 1999. 38 C.F.R. § 20.1304(c) (1999) provides that any "pertinent" evidence submitted by the appellant which is accepted by the Board must be referred to the agency of original jurisdiction (RO) for review and preparation of a supplemental statement of the case, unless this procedural right is waived by the appellant or representative, or unless the Board determines that the benefits to which the evidence relates may be allowed on appeal without such referral. Such waiver must be in writing, or if a hearing on appeal is conducted, formally entered on the record orally at the time of the hearing. The records submitted by the veteran in December 1999 are certainly pertinent to his pending claims, and these records have not previously been reviewed by the RO. The veteran did not waive initial consideration of these records by the RO, so in accordance with the pertinent regulation, the veteran's appeal and claims folder must be returned to the RO for initial consideration. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should inform the veteran of his options as to representation and provide him with the VA form for appointment of a representative. The RO should also request the veteran to identify and produce copies of all records (other than those already provided) of his past treatment with Dr. J. Lokin and Dr. J. Organo. The veteran should also be offered the opportunity of submitting any additional evidence or argument he may have with respect to the two pending appellate issues. 2. After completing the above development, the RO should review all evidence collected on REMAND and the evidence previously submitted directly to the Board and the records of the most recent April 1999 VA examinations to determine, in the RO's discretion, whether it would be necessary or useful for any additional VA examinations to be conducted. 3. Thereafter, the RO should reconsider the two pending appellate issues and, if they are not allowed to the veteran's satisfaction, produce another supplemental statement of the case, which includes consideration of all evidence discussed or produced in conjunction with this remand and Fenderson. If no additional VA examinations are ordered, the RO should explain why the most recent VA examinations on file are adequate for evaluation purposes. The veteran and his representative should then be provided with an opportunity to respond, and the case should thereafter be returned to the Board for final appellate review. The veteran need do nothing until further notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals 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) (1999).