Citation Nr: 0002235 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 98-00 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for chronic bronchitis as secondary to tobacco use. 2. Entitlement to service connection for lung infections as secondary to tobacco use. 3. Entitlement to service connection for spots on the lungs as secondary to tobacco use. 4. Entitlement to service connection for erythema as secondary to tobacco use. 5. Entitlement to service connection for edematous larynx as secondary to tobacco use. 6. Entitlement to service connection for liver cyst as secondary to tobacco use. 7. Entitlement to service connection for lymph nodes, right lung, as secondary to tobacco use. 8. Entitlement to service connection for restrictive lung disease as secondary to tobacco use. 9. Entitlement to service connection for esophagitis as secondary to tobacco use. ATTORNEY FOR THE BOARD C. Trueba-Sessing, Associate Counsel INTRODUCTION The case comes before the Board of Veterans' Appeals (Board) on appeal from a September 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Togus, Maine, which denied the benefits sought on appeal. The appellant served in active service from September 1970 to March 1972, and from November 1976 to October 1980. He also had an additional period of service as a member of the Army National Guard between June 1972 and September 1973, which is currently unverified. The Board also notes that, in the December 1997 VA form 9 (Appeal to Board of Veterans' Appeals), the appellant requested consideration of claims of service connection for asthma and angina. As well, in a May 1999 statement, the veteran requested consideration of claims for increased disability evaluations for his service connected residuals of right shoulder injury, and essential head tremor. However, as the only issues currently before the Board are those set forth on the title page of this decision, these matters are referred to the RO for appropriate action. REMAND In this case, in a February 1982 VA form 21-526 (Veteran's Application for Compensation or Pension), the veteran reported he served in the Army National Guard from June 1972 to September 1973. The veteran's service in the Army National Guard is supported by one of his DD-214s, which shows that in March 1972 he was assigned an early release to join the U.S. Army Reserves. However, the Board notes the record is devoid of evidence actually verifying the appellant's period of active service in the Army National Guard. As such, the veteran's case is remanded for verification of his period(s) of active duty, active duty for training, and/or inactive duty training while serving in the Army National Guard. See Laruan v. West, 11 Vet. App. 80, 85 (1998). Furthermore, the Board finds that, subsequent to the RO's issuance of the November 1997 statement of the case (SOC), copies of various VA medical records were submitted. Specifically, additional medical records from the Togus VA Medical Center (VAMC) dated from September 1990 to July 1992 and January 1997 to October 1998 were submitted subsequent to the issuance of the November 1997 SOC, which are related to the veteran's respiratory and liver disorders. However, as it does not appear that the RO has considered such records and as the veteran has not submitted a waiver of RO consideration of this evidence, the case must be returned to the RO for its review of the aforementioned evidence and inclusion of the evidence in a supplemental statement of the case prior to the case being sent back to the Board. 38 C.F.R. §§ 19.37, 20.1304 (1999). Accordingly, this case is REMANDED to the RO for the following action: 1. The RO should verify the appellant's period of service in the Army National Guard, including all periods of active duty, active duty for training, and/or inactive duty training. Such information should be included in the claims folder. 2. The RO should readjudicate the appellant's claim in light of any additional information/evidence, including the medical records from the Togus VAMC dated from September 1990 to July 1992 and from January 1997 to October 1998. If the determination remains adverse to the appellant, he should be furnished with a Supplemental Statement of the Case and be afforded an opportunity to respond thereto. 3. The appellant has the right to submit additional evidence, to include competent medical evidence linking his current respiratory or liver disorders/symptomatology to his service, and arguments on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to afford the appellant due process of law, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until he is notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States 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).