BVA9505131 
DOCKET NO.  93-12 437     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUE

Entitlement to an increased evaluation for duodenal ulcer,
currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

INTRODUCTION

The veteran served on active duty from August 1947 to May 1950,
and from March 1955 to March 1964.

This matter came before the Board of Veterans' Appeals (Board)
based on actions taken by the Waco, Texas, Regional Office (RO).

The issue of entitlement to an increased evaluation for a
cardiovascular disorder was the subject of a notice of
disagreement.  However, that issue was resolved in favor of the
appellant (including the evaluation sought by the veteran).  We
also note that there is no indication from the veteran that he
was dissatisfied with the decision to award him the very benefit
he sought.  In accordance with the spirit of 38 U.S.C.A.
§ 7105(d)(1) (West 1991), the issue of entitlement to an
increased evaluation for a cardiovascular disorder is not before
the Board.

REMAND

Based upon an appeal for an increased evaluation for a
cardiovascular disorder, the regional office scheduled the
veteran for an examination of the duodenal ulcer.  The Waco,
Texas, Regional office confirmed and continued a 10 percent
evaluation for the duodenal ulcer in June 1992.  Instead of
issuing notification in a letter that included appellate rights,
the regional office issued a supplemental statement of the case.
This action was taken despite the fact that there was no pending
claim for an increased evaluation for a duodenal ulcer, no proper
notification of the decision, and no notice of disagreement in
regard to the duodenal ulcer issue.  Although the veteran
presented testimony, the record lacks a properly completed
substantive appeal.

It appears that the regional office may have used a supplemental
statement of the case to inform the veteran of a decision that
was not the subject of an appeal.  Since a supplemental statement
of the case does not include proper notification of appellate
rights, such action is not proper.

Clearly there could not have been a notice of disagreement
because the regional office failed to properly notify the veteran
of the decision.

The veteran has been prejudiced.  Although in the past the Board
would have attempted to take action, the United States Court of
Veterans Appeal has repeatedly determined that jurisdiction does
matter.  See Roy v. Brown, 5 Vet.App. 554 (1993); Rowell v.
Principi, 4 Vet.App. 9 (1993).

Accordingly, the case is remanded for the following:

1.  The regional office shall prepare a
letter to the veteran.  The letter shall
inform the veteran of all the actions taken
in regard the duodenal ulcer issue.  The
letter shall inform the veteran of the
rating decision, the reasons for the
decision and provide notification of
appellate rights.  The regional office
shall inform the veteran and his
representative that if there is an intent
to appeal the decision, there is a duty to
file a notice of disagreement and a
properly completed substantive appeal.

2.  If a notice of disagreement is
received, the regional office shall issue a
statement of the case.  In addition to the
reasons for the decision, the document
shall include all pertinent information,
including the date of the rating, the
evidence considered, the date of
notification of the decision, and the date
of receipt of the notice of disagreement.

The veteran and representative are hereby informed that if there
is an intent to appeal, there is a duty to file a proper notice
of disagreement and a properly completed substantive appeal.

Prior to certification of appeal, the regional office must ensure
that there has been compliance with all due process procedures.
The Board reserves the right to dismiss if there is a lack of
jurisdiction.

          H. N. SCHWARTZ
          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).