BVA9508372 
DOCKET NO.  92-11 115     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office (VARO) in
Wilmington, Delaware.
Received from the VARO Sioux Falls, South Dakota.

THE ISSUES

1.  Entitlement to service connection for chronic obstructive
pulmonary disease, and the residuals of pneumonia.

2.  Entitlement to service connection for chronic obstructive
pulmonary disease as a result of cigarette smoking.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

Patrick J. Costello, Associate Counsel

INTRODUCTION

The veteran had active military service from February 1947 to
January 1950, and from February 1950 to March 1968.

This matter came before the Board of Veterans' Appeals
(hereinafter the Board) on appeal from a November 1991 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO), in Wilmington, Delaware, that denied the veteran's
claim for service connection for chronic obstructive pulmonary
disease (COPD) and the residuals of pneumonia.

Upon receiving the claims folder at the Board, we determined that
additional medical development of the claim was necessary prior
to the issuance of final decision.  Thus, in June 1993, we
remanded the claim to the RO for the purpose of obtaining
additional medical records and having the veteran undergo a
complete pulmonary examination.  That development was
accomplished, and the claim was returned to the Board.

Then, after developing additional evidence in this case, the
Board, in accordance with Thurber v. Brown, 5 Vet.App. 119
(1993), informed the appellant's representative in an March 1995
letter of the additional evidence developed, and provided an
opportunity to respond.  The representative subsequently
submitted additional argument to the Board in April 1995.

REMAND

The veteran contends that he has COPD that is the result of
exposure to carbon tetrachloride and trichloetheylne, along with
the residuals of pneumonia.  Alternatively, he has argued that as
a result of his cigarette smoking, that he started while in
service, he developed COPD.  He therefore requests service
connection for COPD.

The veteran's initial claim was for service connection for a
pulmonary condition.  However, in May 1994, while the claim was
at the RO for additional development, the veteran expanded his
claim to include service connection for COPD as a result of his
cigarette smoking.  In expanding his claim, the veteran stated
that before service, he did not smoke.  Shortly after entering
service, the veteran maintains he took up cigarette smoking.  The
year was 1947, and the veteran continued to smoke until five
years after he retired from the military.

The Board finds that the issue of entitlement to service
connection for COPD secondary to cigarette smoking inextricably
intertwined with the claim for COPD and the residuals of
pneumonia.  We believe that the RO should consider this issue
before our final appellate decision.  This action would prevent
piecemeal litigation and insure due process.  See Fugere v.
Derwinski, 1 Vet.App. 103 (1990); 972 F.2d. 331 (Fed. Cir. 1992).

Additionally, because we consider the veteran's statement as new
evidence, and since that evidence was presented following
certification of the appeal to the Board, we find that this new
evidence must be considered by the RO.  Pursuant to 38 C.F.R.
§ 20.1304 (1994), any pertinent evidence submitted by the
appellant or the representative that pertains directly to the
matter before the Board must be considered by the RO before any
review or determination by the Board.  Therefore, since this
review has not been accomplished by the RO, we find even if the
two issues listed on the front page of this Remand were not
inextricably intertwined, the appellant's claim would have to be
returned to the RO for further adjudication in accordance with 38
C.F.R. § 20.1304 (1994).

Accordingly, this case is REMANDED to the RO for the following
action:

The veteran's claim should be
readjudicated, taking into
consideration the precedent opinion
of the VA General Counsel,
"Entitlement to Benefits Based Upon
Tobacco Use While in Service," O. G.
C. Precedent 2-93, 58 Fed. Reg.
42,756 (1993).

If the decision remains unfavorable, the veteran and his
representative should be given a supplemental statement of the
case and allowed sufficient time for a response.  Thereafter, the
claim should be returned to the Board for further consideration.
No action is required of the veteran until he is contacted by the
regional office.  The purpose of this REMAND is to ensure due
process.

          JACK W. BLASINGAME
          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) (1994).