BVA9504542 
DOCKET NO.  93-12 246     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida

THE ISSUES

1.  Whether new and material evidence has been submitted to
reopen a claim for service connection for arthritis of the knees.

2.  Entitlement to an increased (compensable) rating for pain in
both knees.

REPRESENTATION

Appellant represented by:  Disabled American Veterans

ATTORNEY FOR THE BOARD

B. Anderson, Counsel

REMAND

The appellant had active duty from June 1943 to April 1946.

This appeal arises from a May 1992 rating decision of the St.
Petersburg, Florida, regional office (RO).  In that decision, a
noncompensable rating for pain in both knees was continued and
the RO determined that the appellant had not submitted new and
material evidence to reopen a claim for service connection for
arthritis of the knees.

The appellant's representative correctly notes that there has
been no obvious consideration of the provisions of 38 C.F.R.
§ 4.59.  The Board of Veterans' Appeals (Board) also notes that
the United States Court of Veterans Appeals has held that
functional loss caused by either pain or limitation of motion
should be compensated at the same rate.

There is another significant factor requiring remand of this case
to the RO.  A rating decision of April 1946 granted service
connection for arthritis of both knees as incurred in World War
II, and written notice was given to the appellant.  However,
beginning with a rating decision of May 1949, the disability was
characterized as pain in both knees (arthritis has not been
diagnosed).  Actually, arthritis (rheumatoid) of the appellant's
knees was treated by a private physician in 1948-1949.
Apparently, arthritis of the knees was first shown on x-ray
examination by the Department of Veterans Affairs (VA) in May
1980.  Nevertheless, rating actions subsequent to 1946 neither
proposed nor effectuated severance of service connection.

The issues as certified for appellate review are temporarily
retained, pending further action to clarify the adjudicative
posture of the RO.  To ensure full compliance with due process
requirements, the case is REMANDED to the RO for the following
development:

The RO should consider all previous rating
actions concerning disability of the
appellant's knees.  The RO should take
appropriate adjudicative action, and
provide the appellant and representative
notice of the determination and the right
to appeal.  If a timely notice of
disagreement is filed, the appellant and
representative should be furnished with a
statement of the case and given the
applicable time to reply.

If any benefit sought on appeal, for which a notice of
disagreement has been filed, remains denied, the case should be
returned to the Board, in accordance with applicable appellate
process.  The appellant need take no action until so notified.

          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 action has been taken in
accordance with the Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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).