BVA9506047 DOCKET NO. 92-56 415 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for residuals of a neck injury. REPRESENTATION Appellant represented by: James C. McKay, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty from February 1963 to September 1966, and from December 1967 to February 1974. This appeal initially arose from a rating decision of April 1991 from the Albuquerque, New Mexico, Regional Office (RO). By means of a Remand decision dated in August 1992, the Board of Veterans' Appeals (Board) requested additional action by the RO, in order to ensure compliance with due process considerations. In an Order dated January 13, 1993, the United States Court of Veterans Appeals (Court) denied the veteran's petition for extraordinary relief in the nature of a mandamus. Wall v. Principi, No. 92- 1490 (U.S. Vet. App. Jan. 13, 1993). The RO rendered a rating decision in April 1994 in which it in part confirmed and continued the prior denial of service connection for neck injury residuals. By means of an Order dated May 2, 1994, the Court again denied a petition by the veteran for extraordinary relief. Wall v. Brown, No. 94-213 (U.S. Vet. App. May 2, 1994). In its Remand decision of November 1993, the Board requested, in part, that the RO adjudicate other issues raised by the veteran, to include entitlement to service connection for a respiratory disability, for Agent Orange exposure residuals, and for amyotrophic lateral sclerosis, and whether a May 28, 1974, rating decision denying service connection for glaucoma was clearly and unmistakably erroneous. In the rating decision of April 1994, the RO denied these claims, and furnished the veteran and his representative with a supplemental statement of the case. Thereafter, a timely notice of disagreement, dated July 15, 1994, was apparently received. Such action does not, however, in and of itself, perfect the veteran's appeal with regard to these claims; statutory provisions clearly stipulate that a substantive appeal must also be timely received. See 38 U.S.C.A. § 7105(d)(3) (West 1991). "The appeal should set out specific allegations of error of fact or law, such allegations related to specific items in the statement [or supplemental statement, if appropriate] of the case." 38 U.S.C.A. § 7105(d)(3) (West 1991); see also 38 C.F.R. § 20.202 (1994). In addition, "[t]he Board of Veterans' Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed." 38 U.S.C.A. § 7105(d)(5) (West 1991); see also 38 C.F.R. § 20.202 (1994). Although the veteran and his representative submitted various documents on or subsequent to July 15, 1994, the date on which the notice of disagreement was apparently received, the Board finds that no document of sufficient specificity with regard to the issues of service connection for a respiratory disability, for Agent Orange exposure residuals, and for amyotrophic lateral sclerosis, and whether a May 28, 1974, rating decision denying service connection for glaucoma was clearly and unmistakably erroneous, is of record. As indicated above, the applicable statutory and regulatory provisions require the submission of an appeal that sets forth "specific allegations." Since no such appeal has been received, the Board must accordingly find that the issues of entitlement to service connection for a respiratory disability, for Agent Orange exposure residuals, and for amyotrophic lateral sclerosis, and whether a May 28, 1974, rating decision denying service connection for glaucoma was clearly and unmistakably erroneous, have not been developed for appellate consideration, and are not at this time before the Board. The decision below is accordingly limited to the only issue that has been developed for appellate review, which is that of entitlement to service connection for residuals of a neck injury. REMAND A private examiner has entered an opinion in support of the veteran's claim. However, the examiner did not provide copies of the clinical notes or establish a foundation for the basis of the opinion. In addition, a VA examination should be conducted for the purpose of identifying any current cervical disability and its relationship to service. To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should contact Charles L. Novosad Jr., M.D., and request copies of all clinical records. In addition, the doctor should be requested to answer the following: When was the veteran first examined? When was a cervical disability first identified? What is the exact basis for the opinion that a cervical disability is due to service? 2. The veteran should be afforded a VA orthopedic examination. The claims folder should be made available to the examiner for review before the examination. The examiner should determine whether there is a current cervical disability, to include but not limited to, fused vertebrae. The examiner should render an opinion as to the likely etiology of any current cervical disability. The examiner should respond to the following questions: Based upon the evidence of record, is it as likely as not that the current cervical disability is due to service including the inservice traumas? Is the opinion of Charles L. Novosad Jr., M.D., to the effect that a cervical disability is due to two inservice accidents supportable? It is requested that the examiner state the reasons for the opinions and confirm that the complete file was reviewed. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. H. N. SCHWARTZ 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).