Citation Nr: 0007141	
Decision Date: 03/16/00    Archive Date: 03/23/00

DOCKET NO.  98-11 859	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center
in White River Junction, Vermont


THE ISSUES

1.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
hearing loss.

2.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
back disability.

3.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for a 
stomach disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States



ATTORNEY FOR THE BOARD

John R. Pagano, Counsel


INTRODUCTION

The veteran had active military service from August 1943 to 
January 1946.

This matter arises from a rating decision rendered in May 
1998 by the Department of Veterans Affairs (VA) Medical and 
Regional Office Center (RO) in White River Junction, Vermont, 
which denied all benefits now sought on appeal.  Following 
compliance with the procedural requirements set forth in 
38 U.S.C.A. § 7105 (West 1991), the case was forwarded to the 
Board of Veterans' Appeals (Board) for appellate 
consideration.


REMAND

Preliminary review indicates that this case is not yet ready 
for appellate disposition for the reasons that follow.

In its November 6, 1997 rating decision, the RO referred to 
having obtained the veteran's complete medical chart "from 
the VA medical file room...and [that it had been] reviewed [it] 
in toto."  It appears that following that review, the 
veteran's complete medical chart was returned to the medical 
file room because the appellate record is devoid of any such 
evidence.  Moreover, it does not appear that the 
aforementioned medical chart was reviewed in conjunction with 
the current claim.  

The issues before the RO in November 1997 were whether new 
and material evidence has been submitted to reopen a claim 
for service connection for a back disorder and entitlement to 
service connection for hearing loss and a stomach disorder.  
Notice was provided in November 1997.  Thereafter, the 
veteran submitted additional evidence and, in May 1998, the 
RO determined that new and material evidence to reopen claims 
of entitlement to service connection for hearing loss, a back 
disorder or stomach disorder had not been submitted and 
provided notice.  A notice of disagreement with the May 1998 
decision was received from the veteran's representative in 
May 1998 and the RO provided a statement of the case 
concerning those issues.  A substantive appeal was received 
from the veteran in July 1998, wherein he contended that the 
evidence he had submitted was new and should allow for 
service connection. A perfected appeal to the Board of 
Veterans' Appeals (Board) of a particular decision entered by 
a Department of Veterans Affairs (VA) regional office (RO), 
consists of a notice of disagreement in writing received 
within one year of the decision being appealed, and after a 
statement of the case has been furnished, a substantive 
appeal received within 60 days of the issuance of the 
statement of the case, or within the remaining one year 
period following notification of the decision being appealed. 
See 38 C.F.R. § 20.200 (1999). 

VA is deemed to have constructive knowledge of its own 
records and, in this case, has actual knowledge of the 
records in the medical chart in question; the RO has 
acknowledged as much.  Because this is considered evidence 
which is of record, the contents of this medical chart must 
be associated with the claims file if the Board is to be in a 
position to render an informed opinion regarding the issues 
pending appellate review.  Cf. Bell v. Derwinski, 
2 Vet. App. 611 (1992).  Given the overriding procedural and 
jurisdictional requirements of 38 U.S.C.A. §§ 7104 and 7105, 
it would be would be premature of the Board to offer any 
opinion at this time as to whether new and material evidence 
has been submitted with regard to any of these claims, and, 
if so, whether any is well grounded.

In view of the foregoing, the issues of whether new and 
material evidence has been submitted to reopen claims of 
entitlement to service connection for hearing loss, a back 
disability, and a stomach disability are deferred, and this 
case is REMANDED to the RO for action as follows:

1.  The RO should obtain and associate 
with the claims file either the veteran's 
complete medical chart or a complete copy 
thereof.  This should then be associated 
with the claims file.

2.  The RO should again review the 
claims.  If the benefits sought on appeal 
are not granted, both the veteran and his 
representative should be furnished a 
supplemental statement of the case.  They 
should also be given the appropriate time 
period in which to respond.

Thereafter, subject to current appellate procedures, the case 
should be returned to the Board for further consideration.  
The veteran need take no action until so informed.  The 
purpose of this REMAND is both to obtain clarifying 
information and to accord the appellant due process of law.  
No inference should be drawn regarding the final disposition 
of the claims.  The appellant has the right to submit 
additional evidence and argument on the matters the Board has 
remanded to the RO.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).



		
	STEVEN L. COHN 
	Member, Board of Veterans' Appeals

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) 
(1996).