BVA9504552 
DOCKET NO.  93-12 417     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Chicago,
Illinois

THE ISSUES

1.  Entitlement to service connection for a left hip disability.

2.  Entitlement to service connection for arthritis of the lumbar
spine.

3.  Whether new and material evidence sufficient to reopen a
claim for service connection for residuals of back injury has
been received.

4.  Whether new and material evidence sufficient to reopen a
claim for service connection for spondylolisthesis has been
received.

REPRESENTATION

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

WITNESS AT HEARING ON APPEAL

Appellant

REMAND

The veteran had active duty from September 1967 to January 1968.

Service connection was previously denied for spondylolisthesis
and residuals of back injury.  In support of the petition to
reopen, the veteran submitted a private medical statement
reflecting a diagnosis of arthritis of the lumbar spine.
Arthritis of the lumbar spine is a presumptive disease, and
service connection had not previously been denied for arthritis
of the lumbar spine.  It appears that the United States Court of
Veterans Appeals would consider the issue of entitlement to
service connection for arthritis of the lumbar spine to be a new
claim.  See Odiorne v. Principi, 3 Vet.App. 456 (1992).

The regional office determined that the issue of entitlement to
service connection for a left hip disability was not subject to
finality.  However, the regional office did not inform the
veteran of the law regarding the presumption of sound condition.

To ensure full compliance with due process requirements, the case
is REMANDED to the regional office (RO) for the following
development:

1.  Inasmuch as the issue of entitlement to
service connection for lumbar spine
arthritis is deemed to be "inextricably
intertwined" with the issue of whether new
and material evidence has been received to
reopen a claim for service connection for a
lumbar spine disorder, the RO should take
appropriate adjudicative action, and
provide the appellant and representative,
if any, notice of the determination and the
right to appeal.  If a timely notice of
disagreement is filed, the appellant and
representative, if any, should be furnished
with a statement of the case and given time
to respond thereto.

2.  The veteran is to be informed that he
has a duty to submit evidence of a well
grounded claim for service connection for
arthritis of the lumbar spine.

3.  The veteran is to be informed that if
he has medical evidence attributing a
current lumbar disability to service, such
evidence should be submitted.

4.  The veteran should be informed that if
he has evidence that spondylolisthesis is
not a congenital or developmental defect or
that it did not preexist service, such
evidence should be submitted.

5.  Service connection for a left hip
disability was denied as a disorder that
preexisted service.  The regional office
should include in the supplemental
statement of the case the law and
regulations governing the presumption of
sound condition.

6.  After the development requested above
has been completed to the extent possible,
the RO should again review the record.  If
any benefit sought on appeal, for which a
notice of disagreement has been filed,
remains denied, the appellant and
representative, if any, should be furnished
a supplemental statement of the case and
given the opportunity to respond thereto.

Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate outcome
of this case.  The appellant need take no action unless otherwise
notified.

          H. N. SCHWARTZ
          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).