Citation Nr: 9927008	
Decision Date: 09/21/99    Archive Date: 09/28/99

DOCKET NO.  98-05 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, 
Minnesota



THE ISSUES

1.  Entitlement to service connection for nicotine 
dependence.

2.  Entitlement to service connection for chronic obstructive 
pulmonary disease with emphysema, as secondary to nicotine 
dependence.



REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.



ATTORNEY FOR THE BOARD

Stephen L. Higgs, Associate Counsel


INTRODUCTION

The veteran served on active duty from January 1951 to 
September 1952.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from a rating decision dated in February 1998 by 
the Department of Veterans Affairs (VA) Regional Office (RO) 
in St. Paul, Minnesota.


REMAND

In the present case, the Board has received from the 
veteran's representative a June 1998 medical opinion of Craig 
N. Bash, M.D., in support of the veteran's claims.  This new 
evidence was received within 90 days following notice to the 
veteran that his case had been certified to the Board for 
appellate review, and no waiver of consideration of this new 
evidence by the RO was received.  The representative stated 
that he was aware that 38 C.F.R. § 20.1304(c) authorized 
review of this evidence by the Board for purposes of granting 
service connection without the evidence having been reviewed 
by the RO.  The representative requested that the case be 
remanded for review of Dr. Bash's statement by the RO if the 
Board was not willing to allow the case in the first 
instance.  The RO should consider this evidence before 
further appellate consideration by the Board.  38 C.F.R. 
§ 20.1304(a), (c).

The Board further notes that Dr. Bash described the veteran 
as deceased in the second paragraph of his written medical 
opinion.  An appeal pending before the Board of Veterans' 
Appeals when the appellant dies will be dismissed.  38 C.F.R. 
§ 20.1302.  However, based upon review of the claims file and 
subsequent correspondence, the doctor's assertion that the 
veteran is deceased appears to be in error.  There is no 
further reference to the veteran's death, implied or 
otherwise, in the opinion or in subsequent correspondence 
from the veteran's representative.  Nevertheless, the RO 
should make a determination as to whether the veteran is 
deceased before any further adjudication of the claim. 

Accordingly, the case is REMANDED to the RO for the following 
actions:

1.  The RO should determine whether the 
veteran is deceased, and take appropriate 
action if he is.

2.  If the veteran is not deceased, the 
RO should consider the evidence added to 
the record since the April 1998 Statement 
of the Case, to include the June 1998 
medical opinion of Craig N. Bash, M.D.  
The RO should conduct any additional 
development deemed appropriate in light 
of the new evidence and readjudicate the 
issues on appeal.

If the benefits sought on appeal are not granted to the 
veteran's satisfaction a supplemental statement of the case 
containing adequate reasons and bases should be issued and 
the veteran and his representative provided an opportunity to 
respond. Thereafter, the case should be returned to the Board 
for further consideration, if otherwise in order.  No action 
is required of the veteran until he is otherwise notified by 
the RO.

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded to 
the regional office.  Kutscherousky v. West, 12 Vet. App. 369 
(1999).

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans' Appeals or by the United States Court of 
Appeals for Veterans Claims for additional development or 
other appropriate action must be handled in an expeditious 
manner.  See The Veterans' Benefits Improvements Act of 1994, 
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and 
Statutory Notes).  In addition, VBA's Adjudication Procedure 
Manual, M21-1, Part IV, 

directs the ROs to provide expeditious handling of all cases 
that have been remanded by the Board and the Court.  See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.



		
	RENÉE M. PELLETIER
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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).