BVA9505308 
DOCKET NO.  92-15 256     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Diego,
California

THE ISSUE

Entitlement to restoration of service connection for a low back
disorder, characterized as chronic lumbosacral strain,
degenerative arthritis of the spine.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

J. Johnston, Associate Counsel

INTRODUCTION

The veteran had active service from December 1965 to February
1974.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a July 1991 rating decision of the San Diego,
California, Department of Veterans Affairs (VA) Regional Office
(RO), which severed service connection for a low back disorder,
characterized as lumbosacral strain with degenerative arthritis,
based upon clear and unmistakable error in the rating decision of
March 1989 that granted service connection.  In that same rating
decision, the RO granted service connection for post-traumatic
degenerative arthritis of the cervical spine with spondylolysis.
This case was previously remanded for additional evidentiary
development.

REMAND

Careful review of the veteran's claims folder makes it apparent
that, in rendering its July 1991 rating decision severing service
connection for a low back disorder, the RO relied, in part, on
the medical records of another individual (M.C.W.), which are
misfiled in the veteran's claims folder.  These records have been
removed from their previous location and placed at the top of the
left hand flap of the claims file with a notation that they are
misfiled.

Specifically, these records indicate that the veteran had "a 12-
year history of low back pain following an injury he sustained
while moving furniture" and were specifically referred to by the
RO in the July 1991 rating decision that proposed severance of
service connection.  Because these records were relied upon, in
part, as a basis to sever service connection for the veteran's
previously service-connected low back disorder, the case must be
REMANDED to the RO for reconsideration of that decision without
any reliance on these misfiled documents.

In this regard, the Board would point out that previous
determinations which are final and binding, including decisions
of service connection, degree of disability, age, marriage,
relationship, service, dependency, line of duty, and other
issues, will be accepted as correct in the absence of clear and
unmistakable error.  Where evidence establishes such error, the
prior decision will be reversed or amended.  Subject to
limitations involving changes in the law and ratings which are
protected based on longevity, service connection will be severed
only where evidence establishes that it is clearly and
unmistakably erroneous (the burden of proof being on the
Government).  38 C.F.R. § 3.105 (1994).  Clear and unmistakable
error has been held by the Court of Veterans Appeals to be an
administrative failure to apply the current statutory and
regulatory provisions to the correct and relevant facts; it is
not mere misinterpretation of the facts.  Oppenheimer v.
Derwinski, 1 Vet.App. 370 (1991) (emphasis added).  The veteran
must be accorded a new decision which excludes consideration of
medical records belonging to another in accordance with basic
procedural due process and appellate rights.  38 C.F.R. § 3.103
(1994).

For these reasons, the case is REMANDED to the RO for the
following:

1.  The RO should review the case again and
determine whether, in the absence of the
previously relied upon misfiled evidence,
severance of service connection for the
veteran's low back disorder is in order.
If so, the severance procedure should
commence with a proposal to sever and then
notice to the veteran that includes a
statement of his right to submit additional
before severance is executed.  Evidence
substantiating the claimed multiple
injuries during service, any service
medical records, accident reports or
medical evidence soon after service might
be particularly helpful.

2.  If severance is accomplished, a
supplemental statement of the case should
be issued explaining the evidence relied
upon to sever and the application of the
law and regulations to the evidence.

After the veteran and his representative have had an opportunity
to respond, the case should then be returned to the Board for
final appellate review.  The veteran need do nothing until
further notified.

(Continued on next page)

          JANE E. SHARP
          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) (1994).