BVA9507711 
DOCKET NO.  90-02 178     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia

THE ISSUE

Entitlement to disability benefits under the provisions of 38
U.S.C.A. § 1151 (West 1991) for residuals of a cervical spine
injury.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARINGS ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel
REMAND

The veteran had active military service from September 1965 to
September 1967.  This matter came before the Board of Veterans'
Appeals (hereinafter "the Board") on appeal from an April 1989
rating decision of the Huntington, West Virginia, Regional Office
(hereinafter "the RO") which, in pertinent part, denied
disability benefits under the provisions of 38 U.S.C.A. § 351
(West 1989) [currently enacted as 38 U.S.C.A. § 1151 (West
1991)].  In February 1991, the Board denied the veteran's
entitlement to disability benefits under the provisions of 38
U.S.C.A. § 351.  In February 1992, the United States Court of
Veterans Appeals (hereinafter "the Court") vacated the Board's
decision and remanded the veteran's claim to the Board for
compliance with the instructions set forth in the Appellee's
Motion for Remand.  The instructions directed that the veteran's
claim should be considered without reference to the provisions of
38 C.F.R. § 3.358(c)(3) (1992) which had been held invalid by the
Court in Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff’d sub
nom., Gardner v. Brown, 5 F.3d 1456 (Fed. Cir. 1993), aff’d sub
nom., Brown v. Gardner, 115 S. Ct. 552 (1994).  Subsequently, the
Department of Veterans Affairs (hereinafter "VA") instituted a
department-wide stay of claims affected by Gardner.  In January
1995, the Chairman of the Board lifted the stay.  The veteran has
been represented throughout this appeal by the Disabled American
Veterans.

The veteran asserts on appeal that the RO erred in denying
disability benefits under the provisions of 38 U.S.C.A. § 1151
(West 1991) for residuals of a cervical spine injury.  He
contends that the VA failed to provide him with prompt surgical
treatment for his cervical spine injury and he sustained
additional disability as a consequence of the delay.  The Board
observes that the VA has recently amended the provisions of 38
C.F.R. § 3.358 (1994) to reflect the United States Supreme
Court's holding in Gardner.  The RO has not considered the
veteran's claim under the amended regulation.  Accordingly, the
case is being REMANDED for the following action:

The RO should reevaluate the veteran's
claim of entitlement to disability benefits
under the provisions of 38 U.S.C.A. § 1151
(West 1991) and 38 C.F.R. § 3.358, as
amended, for residuals of a cervical spine
injury.

When the requested action has been completed, and if his claim
continues to be denied, the veteran should be afforded a
reasonable period of time in which to respond to a supplemental
statement of the case.  Thereafter, subject to current appellate
procedures, the case should be returned to the Board for further
appellate consideration if appropriate.  The veteran need not
take any action unless he is further informed.  The purpose of
this REMAND is to allow for due process of law.  No inference
should be drawn from it regarding the final disposition of the
veteran's claim.

          JEFF MARTIN
          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 is appealable to the Court.  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).