Citation Nr: 0000171 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 97-29 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for asthma. 2. Entitlement to service connection pursuant to 38 U.S.C.A. § 1117 (West Supp. 1999) for undiagnosed illness manifested by signs or symptoms involving the respiratory system in a Persian Gulf War veteran. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Dean INTRODUCTION The appellant had active air service from December 1985 to July 1991, including verified service in the Southwest Asia theater of operations during the Persian Gulf War from August 1990 to March 1991. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations by the Phoenix and Los Angeles Regional Offices (ROs) of the Department of Veterans Affairs (VA). Entitlement to service connection for an undiagnosed illness due to exposure to Anthrax vaccine has been denied by rating decisions in October 1995 and September 1997. A careful review of the current evidentiary record does not disclose to the Board any document which indicates an intention by the appellant to pursue an appeal with respect to the Anthrax exposure issue and which would, therefore, constitute a timely notice of disagreement with respect to the aforementioned rating actions (see 38 C.F.R. §§ 20.201, 20.302(a) (1999)). These rating actions therefore appear to be administratively final as to the claimed residuals of Anthrax vaccine exposure (see 38 U.S.C.A. § 7105(c) (West 1991)). However, the Board also notes that legislation was enacted recently which, in part, added 38 U.S.C.A. § 1118 (West Supp. 1999). This new statute may possibly be relevant to the Anthrax claims, although as yet the necessary implementing, or even proposed, regulations do not appear to have been published. Consequently, this matter is referred to the attention of the RO for review and appropriate further action, if any. The additional issues of service connection for a disability manifested by muscular spasms in the back and neck, and for carpal tunnel syndrome of the right wrist, are also included in the remand portion of this decision for the reasons set forth below. REMAND In a written statement addressed to and received by the Los Angeles RO in August 1998, the appellant stated that, with respect to the issues set forth on the cover page of this decision, he was "requesting that an appeals hearing be arranged so that I can meet with the panel and discuss my case." The Board interprets this statement as a request by the appellant for a personal hearing at the RO before a Rating Board (or, if this is not possible, before a Hearing Officer). The RO has unfortunately not responded to this hearing request, and it has certified the appeal to the Board on VA Form 8 in September 1999 with the inaccurate notation that no hearing had been requested by the appellant. Due process requires that this appeal be remanded to the RO so the requested hearing can be held prior to further review by the Board. In addition, the Board notes that the issues of service connection for a disability manifested by muscular spasms of the back and neck, and for carpal tunnel syndrome of the right wrist, were denied by rating decision in November 1998. The appellant was notified of these adverse actions by letter on December 11, 1998. Subsequently, in its written presentation to the Board, dated November 10, 1999, his representative has advanced arguments in support of the two aforementioned claims by the appellant. The Board finds that this written communication can be construed as a timely notice of disagreement with the November 1998 rating action with respect to these two issues (see 38 C.F.R. §§ 20.201, 20.302(a)). A statement of the case addressing these two issues has not yet been issued, and a remand is necessary for this purpose, as well. See Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, this appeal is remanded to the RO for the following further actions: 1. The RO should issue a statement of the case to the appellant and his representative on the issues of entitlement to service connection for a disability manifested by muscular spasms of the back and neck, and for carpal tunnel syndrome of the right wrist. The appellant must be advised of the time limit in which he can perfect an appeal to the Board on these issues by filing a substantive appeal. See 38 C.F.R. § 20.302(b). If, and only if, an appeal is perfected on one or both of these issues, should they be returned to the Board. 2. The RO should also schedule the appellant for a personal hearing before a Rating Board (or, if this is not possible, before a Hearing Officer) on the issues listed on the cover page of this decision. A copy of the transcript, if any, of this hearing should be incorporated into the claims file; and, if necessary, the RO should readjudicate the claims already in appellate status based upon testimony received at the hearing. If the benefits sought are not granted, the appellant and his representative should be furnished an appropriate supplemental statement of the case and provided an opportunity to respond. In accordance with proper appellate procedures, the case should then be returned to the Board for further appellate consideration. The appellant need take no further action until he is so informed, but he may furnish additional evidence and/or argument on the remanded matters while the case is in remand status to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board observes in connection with this case that the U. S. Court of Appeals for Veterans Claims has held that a remand by the Board confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand order, and it imposes on VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268 (1998). 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).