BVA9503885 
DOCKET NO.  93-09 269     )       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 an amputation of the left
leg, residuals of a right ankle sprain, a psychiatric disability
and hearing loss of the left ear.

REPRESENTATION

Appellant represented by: The American Legion

ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel

INTRODUCTION

The veteran served on active duty from August 1985 to April 1990.
This is an appeal from 1990 and 1992 actions by the Department of
Veterans Affairs (VA) Regional Office, Albuquerque, New Mexico,
denying entitlement to service connection for an amputation of
the veteran's left leg, residuals of a right ankle sprain, a
psychiatric disability and hearing loss of the left ear.  It was
determined that the amputation of the left leg resulting from an
April 1989 accident had not been incurred in line of duty, but
was a result of the veteran's own willful misconduct.

REMAND

The record reflects that, in August 1989, while still in an
active duty status, the veteran sustained an amputation of the
left leg.  He had been skateboarding down a hill approaching a
train track and was unable to stop and slid under a moving train.

A report by the University of New Mexico Hospital, where the
veteran was taken following the accident, reflects that,
according to the veteran, he had drunk about 10 beers prior to
the accident.  His blood alcohol level at the hospital was
.246 percent.

In a statement of medical examination and duty status
(DA Form 2173) dated in October 1989, it was indicated that the
veteran's injury was incurred in the line of duty.  That
determination was subsequently confirmed by a reviewing authority
in February 1990.

The Board notes that, under 38 C.F.R. § 3.1(m), a service
department finding that an injury, disease or death occurred in
the line of duty is binding on the VA unless it is patently
inconsistent with the requirement of laws administered by the VA.
In a December 1992 administrative determination, the regional
office held that the veteran's amputation had been a result of
his own willful misconduct.  However, there was no reference to
the foregoing regulation in either the administrative decision or
the subsequent supplemental statement of the case sent to the
veteran.

The veteran's service medical records reflect that he sustained a
sprain of his right ankle in March 1989 while skateboarding and
was thereafter treated on several occasions for the sprain.  His
service medical records also reflect that he was seen in 1989 and
1990 for psychiatric problems which were diagnosed as an
adjustment disorder resulting from a partial left leg amputation.

The veteran's service medical records also reflect that, when he
was examined for entry into service in March 1985, an
audiological examination showed decibel thresholds of 20, 55 and
35 at 3,000, 4,000 and 6,000 hertz, respectively, in the left
ear.  His hearing in the right ear was normal.  Audiological
examinations in January 1986 and March 1988 showed the hearing in
both ears to be normal.  An audiological examination in February
1990 showed decibel thresholds of 45, 65 and 45 at 3,000, 4,000
and 6,000 hertz, respectively, for the left ear.  His hearing in
the right ear was normal.

The Board notes that the veteran has not been afforded a VA
examination in connection with his claim.

In view of the aforementioned matters and in order to afford the
veteran every consideration, findings of fact and conclusions of
law are being deferred pending a REMAND for the following action:

1.  The appropriate state, county or city
police department should be contacted and
asked to provide a copy of any accident
report completed in connection with the
August 1989 train accident which reportedly
occurred some 60 miles from Albuquerque.
Any such report should be associated with
the claims file.

2.  The veteran should then be afforded
special orthopedic, psychiatric and
audiological examinations in order to
determine the current nature and severity
of any right ankle sprain residuals,
psychiatric disorder and hearing loss of
the left ear.  All indicated special
studies should be conducted.  The
psychiatric examiner should express an
opinion, to the extent possible, as to
whether any psychiatric condition found
resulted from the August 1989 train
accident.  The claims file should be made
available to the examiners for review.

3.  The veteran's case should then be
reviewed by the regional office.  In
particular, consideration should be
afforded the provisions of 38 C.F.R.
§ 3.1(m) regarding the
line-of-duty/misconduct question as to the
left leg amputation.  If the denial is
continued, the veteran and his
representative should be sent a
supplemental statement of the case and be
afforded the appropriate time in which to
respond.

When the above action has been completed, the case should be
returned to the Board for further appellate consideration, if
otherwise in order.  No action is required of the veteran until
he receives further notice.

The purpose of this REMAND is to obtain clarifying information
and also to ensure that the requirements of due process of law
are satisfied.  The Board intimates no opinion as to the
disposition warranted in this case pending completion of the
requested action.

          JAMES R. ANTHONY
          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).