BVA9500599 DOCKET NO. 91-55 198 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been submitted to reopen the veteran's claim of entitlement to service connection for peptic ulcer disease and gastritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Francis Hughes ATTORNEY FOR THE BOARD Hilary L. Goodman, Counsel REMAND The veteran had active service from December 1957 to December 1959. This appeal arises from an October 1989 rating decision which denied the veteran's request to reopen his claim of entitlement to service connection for peptic ulcer disease. The Board of Veterans' Appeals (Board), in a decision entered in January 1988, denied service connection for peptic ulcer disease. The veteran, in August 1989, indicated that he had submitted new and material evidence and requested that his claim for service connection for an ulcer condition be reopened. As noted above, his request was denied by the originating agency in October 1989. The Board initially remanded the veteran's claim in January 1992 for further development of the evidence. The veteran, in a June 1992 statement, related that he was "willing to accept a VA decision for service-connected gastritis instead of an ulcer." In a November 1992 remand, the Board requested that the originating agency determine whether the veteran wished to pursue his appeal on the issue of whether new and material evidence has been submitted to reopen his claim of entitlement to service connection for peptic ulcer disease. The originating agency was also advised to adjudicate the veteran's claim for service connection for gastritis. In a decision of February 1994, benefits were denied. Thereafter, it was determined that some evidence which had been of record at the time of the February 1994 decision had not been considered. It was vacated by a decision of August 1994. This decision replaces the decision of February 1994. In a March 1993 letter the originating agency requested that the veteran inform the originating agency as to whether he was withdrawing his appeal on the issue of service connection for an ulcer condition. He was also advised to submit evidence in support of his claim for service connection for gastritis. The veteran, in an April 1993 letter, stated that he was "changing my claim from ulcer condition to a gastritis claim." It is apparent from the veteran's April 1993 letter that he wishes to withdraw the issue of whether new and material evidence has been submitted to reopen his claim of entitlement to service connection for peptic ulcer disease and pursue a claim of service connection for gastritis. The originating agency, in a June 1993 rating decision, concluded that no new and material evidence had been submitted to reopen a claim of entitlement to service connection for a chronic stomach condition, claimed either as ulcers or gastritis, however, there had been no adjudication on the issue of service connection for gastritis prior to 1992. While both disorders involve the gastrointestinal tract, they are two different disabilities. Subsequent to the June 1993 rating decision, the Court of Veterans Appeals, in Glynn v. Brown, 6 Vet.App 523, 528 (1994), determined that the Department of Veterans Affairs must review all of the evidence submitted since the last final denial on the merits of a claim in order to determine whether a claim must be reopened and readjudicated on the merits. While the 1988 Board decision is the last final denial on the merits of the veteran's claim for peptic ulcer disease, at the time of that decision, the veteran's claim for service connection for gastritis had not been initiated. As the veteran is seeking service connection for gastritis, de novo review of this claim by the originating agency is necessary. Accordingly, the issue is being REMANDED to the originating agency for the following action: 1. The originating agency should adjudicate the issue of the veteran's entitlement to service connection for gastritis on a de novo basis; that is, with full consideration of all the pertinent evidence of record. All evidence of record should be considered. The decision should be in writing to ensure all due process. 2. If any determination made is unfavorable to the veteran, a supplemental statement of the case that sets forth the evidence considered and provides the reasons for the decision should be provided to the veteran and his representative. They should be afforded the appropriate period of time in which to respond. Thereafter, the case should be returned to the Board for further consideration, if in order. No action is required by the veteran until he receives further notice. The purpose of this REMAND is to afford the veteran due process. ROBERT D. PHILIPP 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) (1993).