Citation Nr: 0811578	
Decision Date: 04/08/08    Archive Date: 04/23/08

DOCKET NO.  05-10 802A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office and Insurance 
Center in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a stomach disorder.

2.  Entitlement to service connection for a left ankle 
disorder.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

C. Hancock, Counsel


INTRODUCTION

The veteran served on active duty from July to November 1978, 
and from March 1981 to August 1992.  

These matters come before the Board of Veterans' Appeals 
(Board) on appeal from a rating decision entered in June 2004 
by the Department of Veterans Affairs (VA) Regional Office 
and Insurance Center (ROIC) in Philadelphia, Pennsylvania.

For the reasons outlined below, this appeal is REMANDED to 
the RO via the Appeals Management Center (AMC), in 
Washington, DC.  Consistent with the instructions below, VA 
will notify you of the further action that is required on 
your part.


REMAND

As noted, the claims were denied by the ROIC in June 2004.  
At that time it was noted that no service medical records 
were available for review.  Review of the March 2005 
statement of the case (SOC) and subsequently issued 
supplemental statement of the case (SSOC's) dated in 
September 2005, and, most recently in August 2006, shows that 
the RO has yet to adjudicate the veteran's instant claims 
following review of the service medical records.  

The Board does observe that an August 2007 rating decision, 
concerning the adjudication of another issue not now on 
appeal before the Board, shows that the ROIC had in its 
possession, and considered, the veteran's service medical 
records.  The service medical records are in fact currently 
associated with the claims folder.  

In the course of the veteran's September 2007 hearing 
conducted by a local hearing officer at the ROIC he is shown 
to have submitted additional evidence.  He also submitted a 
waiver of initial consideration of this evidence to the RO.  
See VA Form 21-4138.  Unfortunately, the Board finds that it 
is not clear from review of the claims folder what additional 
new evidence the veteran did in fact submit.  

In Disabled American Veterans (DAV) v. Secretary of Veterans 
Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States 
Court of Appeals for the Federal Circuit (Federal Circuit) 
emphasized the Board's status as "an appellate tribunal."  
The Board is prohibited from considering additional evidence 
without having to remand the case to the AOJ for initial 
consideration, unless having an appropriate waiver from the 
veteran.  Hence, the most appropriate action, and to ensure 
the veteran is accorded proper and necessary due process 
consideration, is to remand these claims to the ROIC for 
initial consideration of the additional evidence received by 
the ROIC (whatever it is) in September 2007 as well as the 
veteran's service medical records, and, if the claims remain 
denied, the issuance of an SSOC.

Accordingly, the case is REMANDED for the following action:

The RO must readjudicate the appealed 
issues, to include initial consideration 
of the evidence submitted by the veteran 
in September 2007 (if ascertainable) and 
the veteran's service medical records.  
If it appears that the evidence submitted 
at the hearing is not on file, appellant 
should be contacted for copies.  If the 
claims are denied in any respect, the RO 
must issue a SSOC to the veteran and his 
representative, and they should be given 
an opportunity to respond, before the 
case is returned to the Board.

The purpose of this REMAND is to ensure due process.  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.  
The appellant has the right to submit additional evidence and 
argument on the matters the Board have remanded to the RO.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).


_________________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).