Citation Nr: 0002101	
Decision Date: 01/27/00    Archive Date: 02/02/00

DOCKET NO.  98-08 739 A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

Entitlement to an evaluation in excess of 40 percent for 
residuals of a laminectomy and diskectomy of the lumbar 
spine.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jeffrey J. Schueler, Counsel


INTRODUCTION

The appellant had active service from July 1967 to July 1970.  
This matter comes to the Board of Veterans' Appeals (Board) 
from a June 1997 rating decision of the Department of 
Veterans Affairs (VA) Denver Regional Office (RO) which 
denied the claim for a rating in excess of 40 percent for 
residuals of a laminectomy and diskectomy of the lumbar 
spine.  There, the RO noted that the 40 percent rating was to 
be continued pending future examination pursuant to 38 C.F.R. 
§ 3.344.  

The appellant's representative filed a January 1998 statement 
in which it was argued that a May 1997 VA examination used to 
evaluate the severity of the disability was inadequate and 
not in compliance with the requirements of DeLuca v. Brown, 8 
Vet. App. 202 (1995), that 38 C.F.R. § 3.344 required 
evidence of material improvement prior to any reduction of 
the evaluation, and that there was no need for future 
examination.  The RO issued a statement of the case in May 
1998.  Instead of listing the issue for appellate review, as 
stated on the title page of this decision, the RO listed the 
issues as whether the May 1997 examination was adequate for 
rating purposes and whether clear and unmistakable error was 
made in scheduling a routine future examination.  The 
appellant's representative filed a June 1998 statement, which 
was accepted by the RO in lieu of a substantive appeal, 
thereby ostensibly perfecting an appeal as to these issues.  
See 38 C.F.R. § 20.200.  

The RO certified the latter issues to the Board.  Such 
certification is for administrative purposes only and does 
not serve to either confer or deprive the Board of 
jurisdiction over an issue.  38 C.F.R. § 19.35.  The 
appellant expressed disagreement with the June 1997 rating 
decision, and his representative's written comments as to the 
adequacy of the examination or the need for a future 
examination are simply arguments supporting that 
disagreement.  For this reason, the issue for appellate 
review is as set forth on the title page of this decision.  


REMAND

In January 1998 and again in April 1998, the appellant, 
through his representative, expressed disagreement with the 
June 1997 rating decision denying an evaluation in excess of 
40 percent for residuals of a laminectomy and diskectomy of 
the lumbar spine.  These statements together constitute a 
valid notice of disagreement.  See 38 C.F.R. §§ 20.201, 
20.300, 20.301(a), 20.302(a) (notice of disagreement must be 
filed within one year of notice of decision).  The RO has not 
issued a statement of the case as to this issue; thus, a 
remand for such action is necessary.  See 38 C.F.R. § 19.9; 
Manlincon v. West, 12 Vet. App. 238 (1999).

The case is REMANDED for the following development:

The RO should issue a statement of the 
case to the appellant and his 
representative addressing the issue of 
entitlement to an evaluation in excess of 
40 percent for residuals of a laminectomy 
and diskectomy of the lumbar spine.  The 
statement of the case should include all 
relevant law and regulations pertaining 
to the claim.  The appellant must be 
advised of the time limit in which he may 
file a substantive appeal.  38 C.F.R. 
§ 20.302(b).  Then, if an appeal is 
perfected, this issue should be returned 
to the Board for further review.  

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 his representative 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.  The appellant has the right to submit additional 
evidence and argument on the matters remanded to the RO.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).


		
	J. F. Gough
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a 
decision of the Board is appealable to the U.S. Court of 
Appeals for Veterans Claims.  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) 
(1999).