BVA9501050 
DOCKET NO.  93-09 445     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Louisville,
Kentucky

THE ISSUE

Entitlement to service connection for back disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

G. Wm. Thompson, Counsel

INTRODUCTION

The veteran had active service from August 1944 to July 1946.

This appeal arises from a June 1992 Department of Veterans
Affairs(VA) Louisville, Kentucky, Regional Office (RO) rating
determination that the veteran had not submitted new and material
evidence to reopen a claim for entitlement to service connection
for a back disorder.

REMAND

The RO, by rating action in July 1961, in addition to other
determinations, including granting pension benefits, denied
entitlement to service connection for back disability; however,
there is no record that the veteran was ever informed of this
determination.  The award or disallowance work sheet, dated in
September 1961, does not indicate that notice of the denial of
service connection for a back condition was prepared.  The
October 1961 letter notifying the veteran of the award of pension
benefits does not show denial of service connection for a back
disorder.

In passing, the Board of Veterans' Appeals (Board) notes that at
the time of the July 1961 determination, the veteran was
considered incompetent, and her husband at the time was
recognized as her custodian.  The veteran was subsequently found
to be competent for VA benefit purposes, by rating action in
September 1968.

The August 1992 Statement of the Case issued to the veteran by
the RO addressed only the question of whether she had submitted
new and material evidence.  Because there was no notice to the
veteran of the prior denial of entitlement to service connection
for back disability, the question of entitlement to service
connection for back disability must be decided on the merits.
The issue before the Board is therefore based upon grounds
different from those utilized by the RO.  An adverse finding by
the Board on matters not considered by the RO based on statutes,
regulations or analyses which were not considered by the RO raise
an issue concerning whether the appellant's procedural rights to
notice, to a hearing, and to submit evidence have been abridged.
There is also the VA's statutory duty to assist the appellant.
Bernard v. Brown, 4 Vet.App. 384 (1993).  To afford the veteran
every reasonable consideration, this case is remanded for the
following:

The RO should consider the issue of entitlement
to service connection for back disability on the
merits.  Thereafter, if the determination remains
adverse to the appellant, and a notice of
disagreement is submitted, the RO should issue a
supplemental statement of the case, based on the
issue as shown on the preceding page.  If the RO
finds that the issue is not well-grounded, the
appellant must be informed of the kind of
evidence necessary for a well-grounded claim.

Following the above, the case will be returned to the Board for
further appellate consideration.  The appellant need do nothing
until so notified.

          THOMAS J. DANNAHER
          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).