Citation Nr: 9909941 Decision Date: 04/09/99 Archive Date: 04/29/99 DOCKET NO. 97-32 240A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for an esophageal hiatal hernia with mild gastroesophageal reflux. 2. Entitlement to service connection for arthritis. 3. Entitlement to service connection for cirrhosis of the liver. 4. Entitlement to service connection for residuals of a head wound. 5. Entitlement to service connection for an acquired psychiatric disorder. 6. Entitlement to service connection for Agent Orange exposure. 7. Whether new and material evidence has been presented to reopen a claim for service connection for a heart disease, hypertension, peripheral vascular disease, and a respiratory disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active duty from July 1969 to August 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of June 1996 by the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO). The Board also notes that in decisions of October 1997 and March 1998 the RO denied service connection for a heart condition with vascular disease claimed as secondary to tobacco use in service. The veteran subsequently submitted a written statement in May 1998 in which he addressed that issue. The smoking issue, however, has not been developed or certified for appellate review. Accordingly, the Board will not address that issue, and instead refers it to the RO for any appropriate action. REMAND The record shows that the veteran was advised by letter in October 6, 1998, that his case was being transferred to the Board. Subsequently, on January 5, 1999, the veteran submitted additional items of evidence which were not previously considered by the RO and which were not of record when the RO issued the most recent supplemental statement of the case in July 1998. The Board notes that these items of evidence were submitted and received just beyond the 90 day time period for submission of new evidence as outlined in 38 C.F.R. § 20.1304 (1998). The evidence, however, consisted of VA treatment records. The United States Court of Appeals for Veterans Claims (Court) has held that the Board has constructive notice of such records and must consider them in connection with an appeal. See Bell v. Derwinski, 2 Vet. App. 611 (1992) in which the Court held that one part of the VA may be deemed to have "constructive notice" of evidence or documents which are under the control of another part of the VA. Furthermore, the Court has held that consideration should be given to assigning an earlier effective date where a claim is forwarded to the RO from other sections of the VA. See Hanson v. Brown, 9 Vet. App. 29, 31 (1996). Applying these principles to the present case, the Board notes that the records submitted by the veteran were within the control of one part of the VA within the 90 day time limit for submission of evidence. Accordingly, the Board accepts the evidence for consideration in connection with the veteran's appeal. Having accepted the additional items of evidence, the Board observes that there is no waiver of RO consideration of this new evidence as required under 38 C.F.R. § 20.1304(c) (1998). The Board is unable to construe any language in the cover letter from the veteran as an express waiver of initial RO consideration of the evidence. In light of the foregoing circumstances, to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should again review the record, including all evidence which has been received since the most recent supplemental statement of the case was issued in July 1998, and determine whether any of the veteran's claims may be granted. 2. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. WARREN W. RICE, JR. 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999). 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).