BVA9502268 
DOCKET NO.  93-09 388     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in New York, New
York

THE ISSUE

Whether new and material evidence has been submitted to reopen a
claim of entitlement to service connection for plantar warts of
the left foot.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

The veteran

ATTORNEY FOR THE BOARD

Daniel J. McTavish, Associate Counsel

REMAND

The veteran served on active duty from October 1945 to August
1949.

This matter came before the Board of Veterans' Appeals (Board) on
appeal of a March 1992 determination by the New York, New York
Regional Office (RO) of the Department of Veterans Affairs (VA).

The veteran's initial claim of service connection for plantar
warts of the left foot was denied by the RO in June 1958.  He was
informed of his right to appeal this decision but did not
exercise this right.  The RO's decision became final.  In October
1991, he attempted to reopen his claim of service connection.  In
March 1992, the veteran was notified of the previous denial of
his claim and the need for new and material evidence.  In June
1992, he submitted a statement that was apparently accepted by
the RO as his notice of disagreement.  In this letter, he stated
that his notice of disagreement was submitted on May 11, 1992.
This document is not of record.  In this regard, the Board
observes that the veteran's appointment of Disabled American
Veterans as his service representative was made effective that
date.

The veteran appeared at a personal hearing at the RO in January
1993.  In February 1993, the RO received medical treatment
records and statements dated from 1986 through 1992.  In March
1993, a statement was received from Dr. John Burke, a private
physician.  He indicated that he treated the veteran in 1981 for
left forefoot plantar fibrous keratosis with underlying bursitis.

The hearing officer rendered his decision in April 1993.  He
found that the veteran had not submitted new and material
evidence necessary to reopen his claim of service connection for
plantar warts of the left foot.  A supplemental statement of the
case was provided later in April 1993.  The evidence received by
the RO in February 1993 and the statement from Dr. Burke which
was received in March 1993 do not appear to have been considered
by the hearing officer, nor was it addressed by the RO in the
statement of the case, 38 C.F.R. §§ 19.29, 19.37 (1993), or a
supplemental statement of the case, 38 C.F.R. § 19.31 (1993).
The veteran has the right to have pertinent evidence considered
by the RO unless this right is waived.  38 C.F.R. § 20.1304(c)
(1993).  The record does not reflect that the veteran waived this
right.  Furthermore, it does not appear that the veteran was
notified in writing of the certification and transfer of his
appeal to the Board and of the time limit for submitting
additional evidence.  38 C.F.R. § 19.36 (1993).  In order to
ensure that the veteran's due process rights are not violated,
action needs to be taken by the RO.  The case is REMANDED to the
RO for the following:

1.  The RO should contact the veteran's
representative and ask for a copy of the
May 11, 1992, letter referred to by the
veteran in his June 19, 1992, notice of
disagreement.  All records obtained should
be incorporated into the claims file.

2.  The RO should then review the veteran's
claim on the basis of the additional
evidence and determine whether new and
material evidence, as contemplated by
38 U.S.C.A. § 5108 (West 1991); 38 C.F.R.
§ 3.156(a) (1993); and Manio v. Derwinski,
1 Vet.App. 140 (1990), has been submitted
to reopen the previously denied claim of
service connection for plantar warts of the
left foot.

3.  After the issue is reviewed by the RO,
the RO should issue a supplemental
statement of the case summarizing the
evidence, and law and regulations, and
explaining the application of the law and
regulations to the evidence.  The RO should
afford the veteran 60 days to respond to
the supplemental statement of the case
before the matter is returned to the Board
for final adjudication, if otherwise in
order.  38 C.F.R. § 20.302(c) (1993).

In taking this action, the Board implies no conclusion, either
legal or factual, as to the ultimate outcome warranted.  No
action is required of the veteran until further notice.

          N. R. ROBIN
          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).