Citation Nr: 9900773	
Decision Date: 01/13/99    Archive Date: 01/22/99

DOCKET NO.  98-07 833	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, 
Illinois


THE ISSUES

1.  Entitlement to service connection for disability of the 
cervical spine.

2.  Entitlement to service connection for disability of the 
thoracic spine.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


ATTORNEY FOR THE BOARD

Jason R. Davitian, Associate Counsel




INTRODUCTION

The veteran served on active duty from November 1941 to 
January 1946.

This case is before the Board of Veterans’ Appeals (BVA or 
Board) on appeal from a November 1997 rating decision of the 
Department of Veterans Affairs (VA) Regional Office in 
Chicago, Illinois (RO), which denied the benefits sought on 
appeal.

In October 1996 correspondence the RO informed the veteran 
that a September 1996 grant of service connection for a 
lumbar spine disability constituted a total grant and 
therefore that appeal was withdrawn.  In correspondence 
received by VA in February 1998, it was argued that the 
veteran had not withdrawn his existing claims for emphysema 
and Barrett’s syndrome, as incurred in service or due to use 
of tobacco.  The Board, however, notes that in separate 
October 1996 correspondence the RO informed the veteran that 
these issues were being deferred pending the issuance of new 
regulations governing the adjudication of tobacco related 
claims.  Thus, the Board acknowledges that these appeals have 
not been withdrawn.  Still, as the question of entitlement to 
service connection for nicotine dependence has yet to be 
adjudicated by the RO, and as this latter question is 
inextricably intertwined with the former question of 
entitlement to service connection for emphysema and Barrett’s 
syndrome, this matter is referred to the RO for appropriate 
consideration.


REMAND

The Board notes that in correspondence received in June 1998, 
it was argued that the veteran's cervical and thoracic spine 
disabilities were secondary to his service-connected lumbar 
spine disability.  The issue of entitlement to secondary 
service connection for these disabilities has not, however, 
been addressed.  Accordingly, further development is in 
order.

Further development is also required in light of the November 
1998 receipt of a statement from Craig N. Bash, M.D., 
concerning the etiology of the veteran's cervical and 
thoracic spine disabilities.  Specifically, Dr. Bash stated 
that in his opinion it was as likely as not that the 
veteran's current cervical and thoracic spine disabilities 
were the result of two airplane crashes experienced by the 
appellant during active duty.  Notably, however, a waiver of 
consideration of this evidence by the RO was not submitted 
with Dr. Bash’s opinion.  As a result, the veteran's claim of 
entitlement to service connection for cervical and thoracic 
spine disabilities, along with the newly submitted evidence, 
must be remanded to the RO for initial consideration by that 
office in accordance with 38 C.F.R. § 20.1304.  

Accordingly, this case is REMANDED for the following action:

1.  The RO should schedule the veteran 
for a VA orthopedic examination to 
determine the nature and etiology of his 
cervical and thoracic disorders.  The 
claims folder and a copy of this REMAND 
must be provided to and reviewed by the 
examiner prior to any examination.  All 
indicated evaluations, studies, and tests 
deemed necessary by the examiner must be 
accomplished.  Following the examination, 
and consideration of Dr. Bash’s opinion, 
the examiner must offer an opinion 
whether it is at least as likely as not 
that the veteran’s cervical and thoracic 
disorders are related to his military 
service.  The examiner must further offer 
an opinion addressing whether it is at 
least as likely as not that the 
appellant’s service connected lumbar 
disorder causes or aggravates any 
diagnosed cervical and/or thoracic 
disorder.  A complete rationale must be 
provided with any proffered opinion.  If 
the examiner’s opinion is at variance 
with Dr. Bash’s the basis for the 
difference must be explained.  The 
examination report should be typed.

2.  After the development requested has 
been completed, the RO should review the 
examination report to ensure that it is 
in complete compliance with the 
directives of this REMAND.  If the report 
is deficient in any manner, the RO must 
implement corrective procedures at once.  

The RO should then readjudicate the issues of entitlement to 
service connection for cervical and thoracic disorders.  If 
the benefits sought on appeal are 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.

The purpose of the REMAND is to afford the veteran due 
process.  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 
he desires to have considered in connection with his current 
appeal.  No action is required of the veteran until he is 
notified.



		
	DEREK R. BROWN
	Member, Board of Veterans' Appeals

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 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) (1998).
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