Citation Nr: 0812855	
Decision Date: 04/18/08    Archive Date: 05/01/08

DOCKET NO.  06-20 696	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina


THE ISSUE

Entitlement to service connection for a lung disorder, to 
include coccidiodomycosis, interstitial lung disease and 
pulmonary hypertension (claimed as a heart disorder) as a 
result of exposure to ionizing radiation.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant


ATTORNEY FOR THE BOARD

Raymond F. Ferner, Senior Counsel


INTRODUCTION

This matter comes before the Board of Veterans' Appeals (BVA 
or Board) on appeal from a June 2003 rating decision of the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
Winston-Salem, North Carolina, that denied the benefit sought 
on appeal.  The veteran, who had active service from January 
1955 to January 1959, appealed that decision to the BVA and 
the case was referred to the Board for appellate review.



REMAND

A preliminary review of the record discloses a need for 
further development prior to final appellate review.  In this 
regard, after the veteran's hearing before the BVA additional 
relevant evidence was received from the RO.  However, this 
evidence was received without a waiver from the veteran of 
initial consideration of that evidence by the RO, as is his 
right under the Board's regulations and rules of practice.  
See 38 C.F.R. §§ 19.9, 20.1304(c) (2007).  

The Board contacted the veteran and his representative to 
inquire whether the veteran desire to waive initial 
consideration of this evidence by the RO.  In responses from 
both the veteran and his representative they both requested 
that the case be returned to the RO for consideration of this 
additional evidence.  Accordingly, the case will be returned 
for consideration of this additional evidence

In addition, the veteran requested that his claim be amended 
to include a claim for service connection for asbestosis.  
And while the RO appears to have undertaken some development 
with respect to this claim, for example the RO provided the 
veteran notice pursuant to 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) in connection with this claim in December 
2006 and afforded the veteran a VA examination in June 2007, 
the record does not reflect whether or not this claim has 
actually been adjudicated by the RO.  Since the Board is of 
the opinion that this claim is intertwined with the claim 
currently on appeal, the claim should be adjudicated and 
included in the current claim if the benefit sought is denied 
and/or the benefit sought on appeal remains denied after 
reviewing the additional evidence.

Therefore, in order to give the veteran every consideration 
with respect to the present appeal, it is the Board's opinion 
that further development of the case is necessary.  This case 
is being returned to the RO via the Appeals Management Center 
(AMC) in Washington, D.C., and the veteran will be notified 
when further action on his part is required.  Accordingly, 
this case is REMANDED for the following action:

1.  The RO/AMC should review the evidence 
associated with the claims file since the 
the issuance of the Statement of the Case.  
If the benefit sought is not granted, the 
veteran and his representative should be 
furnished a Supplemental Statement of the 
Case, and be afforded a reasonable 
opportunity to respond before the record 
is returned to the Board for further 
review.

2.  The RO/AMC should adjudicate the 
veteran's claim for service connection for 
asbestosis, if not already done.  If the 
benefit sought is denied, this issue sould 
be included in the current appeal.  
However, if the benefit sought is granted, 
the veteran should be contacted to 
determine whether this grant of service 
connection satisifies his appeal and 
inquire whether the veteran desires to 
continue his appeal.

The purpose of this REMAND is to obtain additional 
development, and the Board does not intimate any opinion as 
to the merits of the case, either favorable or unfavorable, 
at this time.  The veteran is free to submit any additional 
evidence and/or argument he desires to have considered in 
connection with his current appeal.  Kutscherousky v. West, 
12 Vet. App. 369 (1999).  No action is required of the 
veteran until he is notified.



_________________________________________________
M. W. GREENSTREET
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).