BVA9501300 DOCKET NO. 92-07 023 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Sandra L. Smith, Associate Counsel INTRODUCTION The veteran had active service from July 1967 to April 1970. This appeal is before the Board of Veterans' Appeals (the Board) from a September 1991 rating decision of the Regional Office (RO) which denied service connection for hepatitis, a left shoulder disorder, a right shoulder disorder, and a throat disorder. In addition, the Board notes that in February 1992 the VA received the veteran's claim for service connection for Post- Traumatic Stress Disorder (PTSD). This issue has not been fully developed by the RO and was not certified for appellate review. Thus, the Board lacks jurisdiction over this issue and will not consider it at this time. In its June 1993 remand the Board explained that the veteran's claim regarding his throat disability was for service connection for a throat disorder secondary to exposure to Agent Orange. The Board notes that the veteran has not submitted a substantive appeal as to the additional issues of service connection for a throat disorder and skin disorder due to exposure to Agent Orange denied by the RO in June 1994. Thus, the Board also lacks jurisdiction over these issues and will not consider them at this time. REMAND This case was previously remanded in June 1993 so that the veteran might be afforded a VA examination, as he had requested, in connection with his claims. In reviewing the claims folder, the Board notes that the veteran was incarcerated at the time he filed his claim for compensation in November 1990. However, in his substantive appeal, dated in April 1992, the veteran indicated he wanted to be furnished a VA medical examination upon his release from prison, which he anticipated to be in either December 1992 or January 1993. Further review of the record shows that notice of a scheduled VA medical examination was mailed in September 1993 to the veteran's prison address. It was subsequently returned with notice that the veteran had been released with no forwarding address. There is no indication in the file that any subsequent notice of a scheduled examination was ever sent to the veteran's home address. In addition, the Board notes that the veteran's accredited service representative, in a written memorandum dated in January 1994, attempted to withdraw the veteran's current appeal. VA regulations provide that a substantive appeal may be withdrawn, in writing, at any time before the Board promulgates a decision. Withdrawal may be by the veteran or his authorized representative, except that the representative may not withdraw a substantive appeal filed by the veteran personally without the express written consent of the veteran. 38 C.F.R. § 20.204. In the instant case, the veteran himself submitted a substantive appeal; therefore, the attempted withdrawal submitted by the veteran's accredited service representative is ineffective. However, the Board believes that an attempt should be made to contact the veteran again to determine his desire in this matter. In light of the above facts and law, the case is hereby REMANDED to the RO for the following actions: 1. The RO should attempt to contact the veteran at his last known home address to determine his intent as to the status of his appeal. 2. The RO is to schedule the veteran for VA orthopedic examination in order to determine the nature of the claimed shoulder disabilities. The examiner is requested to obtain a detailed history from the veteran. Any indicated diagnostic tests should be performed. The claims folder should be made available for review by the examiner prior to the examination. 3. The RO is to schedule the veteran for VA examination by a specialist in liver disease in order to obtain additional information about the claimed hepatitis. The examiner is requested to obtain a detailed history from the veteran, and, then to express an opinion as to whether any current liver disease is related to the hepatitis for which the veteran was treated in service. Any indicated diagnostic tests should be performed. The claims folder should be made available for review prior to the examination. If the claim remains denied, the veteran and his representative should be issued a supplemental statement of the case and they should be afforded the appropriate period of time within which to respond thereto. Then, if otherwise in order, the case should be returned to the Board for further appellate consideration. No action is required of the veteran until he is notified. The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the requested development. ________________________________ HOLLY E. MOEHLMANN 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).