BVA9504762 
DOCKET NO.  93-11 144     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in New York, New
York

THE ISSUE

Entitlement to service connection for gout with gouty arthritis.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

C.A. Skow, Associate Counsel

REMAND

The appellant served on active duty from November 1966 to October
1968.

This matter came before the Board of Veterans' Appeals (the
Board) on appeal from an October 1992 rating decision of the New
York, New York, Department of Veterans Affairs Regional Office
(VARO).  At that time, VARO adjudicated the claim on the basis of
new and material evidence, and denied the appellant's claim to
service connection for gout and gouty arthritis on the basis that
new and material evidence sufficient to reopen the claim to
service connection had not been submitted.

A review of the evidence of record reveals that the appellant
filed his original claim for entitlement to service connection
for gout with gouty arthritis in May 1990.  By rating action
dated August 1990, the appellant was denied service connection
for gout and gouty arthritis, and he was sent notice of that
decision in October 1990.  Subsequently, in November 1990, the
appellant filed a claim for entitlement to non-service connected
pension benefits, which was denied in February 1991.

The appellant has, by statute, 1 year from the notice of an
adverse rating board decision to file a notice of disagreement,
and thereby, initiate the appeals process.  In February 1991, the
appellant's representative noted the appellant's separate claims
for service connection and pension benefits, and requested that
VARO review the appellant's file.  Also, in March 1991, the
appellant requested that VARO reconsider his gouty arthritis
condition.

The above mentioned requests for reconsideration appear to have
been solely associated with the appellant's claim for pension
benefits, and disregarded as a timely filed notice of
disagreement with the August 1990 rating action that denied the
entitlement to service connection for gout with gouty arthritis.

The Board believes that, since the appellant's claim for service
connection and pension benefits concerns the same disability,
gout with gouty arthritis, and since it is unclear that the
appellant did not intend these requests for reconsideration to
act as a notice of disagreement with the August 1990 rating
action, these submissions must reasonably be interpreted as a
notice of disagreement with the denial of service connection for
gout with gouty arthritis, as well as the denial of pension
benefits.

In view of the above and with consideration of the appellant's
due process rights, the appellant's claim to service connection
should not have been adjudicated in October 1992 on the basis of
new and material evidence, and appellant and his representative
should have been issued a statement of the case.  As such, the
October 1992 rating decision is vacated, and the case must be
remanded to VARO for appropriate action as outlined below.

Furthermore, we note that the appellant reportedly is in receipt
of Social Security Administration (SSA) benefits.  In light of
Murincsak v. Derwinski, 2 Vet.App. 363 (1992), VARO should obtain
and consider any records of a benefit award the appellant has
received from SSA, including any medical determinations made by
that Administration.

Accordingly, to ensure that the VA has met its duty to assist the
appellant in developing the facts pertinent to his claim and to
ensure full compliance with due process requirement, 38 U.S.C.A.
§ 5107(a) (West 1991), the case is REMANDED to VARO for the
following development:

1.  VARO should obtain from the Social
Security Administration the records
pertinent to the appellant's claim for
Social Security disability benefits as well
as the medical records relied upon
concerning that claim.

2.  After the development requested above
has been completed to the extent possible,
VARO should review the entire record.  If
any benefit sought on appeal, for which a
notice of disagreement has been filed,
remains denied, the appellant and
representative should be furnished a
statement of the case and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order.  The Board intimates no opinion as to the ultimate outcome
of this case.  The appellant need take no action unless otherwise
notified.

          C.P. RUSSELL
          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) (1993).