Citation Nr: 1115585 Decision Date: 04/21/11 Archive Date: 05/04/11 DOCKET NO. 08-00 253A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for diabetes mellitus, Type II. 3. Entitlement to service connection for rheumatoid and generalized arthritis, including as secondary to service-connected residuals of amputation of the right fourth toe and distal phalanx fracture. 4. Entitlement to service connection for an acquired psychiatric disorder, including an anxiety disorder. 5. Entitlement to service connection for cellulitis of the right leg, including as secondary to service-connected residuals of amputation of the right fourth toe and distal phalanx fracture. 6. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of fracture of the left tibia and fibula with chronic osteomyelitis, including as secondary to service-connected residuals of amputation of the right fourth toe and distal phalanx fracture. 7. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for lumbar degenerative disc disease, including as secondary to service-connected residuals of amputation of the right fourth toe and distal phalanx fracture. 8. Entitlement to an increased evaluation for residuals of amputation of the right fourth toe tuft and distal phalanx fracture, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1965. This appeal arises from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2011, the Veteran offered personal testimony at a hearing conducted by the undersigned. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As an initial matter, it is observed that VA treatment records, including those dated in May 2005, show the Veteran reporting receipt of Social Security Administation (SSA) disability benefits since 1988. Although his file is already voluminous, given the Veteran's medical history, the records on which any award of such benefits were based could be useful in more fully understanding this history. This, in turn, could assist in arriving at correct determinations of his VA claims. Attempts to obtain this should be made. In addition, the Veteran has contended he received psychiatric treatment at the Methodist Hospital in Dallas, Texas (now called Methodist Dallas Medical Center) shortly after his discharge from service. He initially advised (in February 2005) this occurred in 1966 and 1967, but the response from the hospital was they were unable to locate a record for the Veteran. They offered to recheck their records if VA could provide additional information. Subsequently, (in January 2008), the Veteran's brother (apparently a dentist) wrote a letter to VA on the Veteran's behalf, which indicated the Veteran's psychiatric treatment at this hospital had been in 1965, (rather than 1966 or 1967). It does not appear that any follow-up with the hospital was undertaken. This should be accomplished. Lastly, it does not appear that formal notice of the information and evidence necessary to reopen the Veteran's claims for service connection for low back disability and tibia/fibula fracture was provided to him, pursuant to 38 U.S.C.A. § 5103, and as interpreted by Kent v. Nicholson, 20 Vet. App. 1 (2006). While a close reading of the 26 page statement of the case, or 9 page January 2008 supplemental statement of the case, and other documents could be considered to have communicated the requirements of such notice, a separate, formal letter addressing this would likely produce a clearer understanding on the Veteran's part. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran formal notice of the information and evidence necessary to reopen his claims for service connection for lumbar spine disability and residuals of a tibia/fibula fracture, including the definition of new and material evidence and the basis for the prior final denials of these claims. 2. Request from the Social Security Administration the records pertinent to the appellant's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. 3. Ask the Veteran to identify all health care providers who have treated him for right fourth toe amputation since March 2010. With any necessary authorization from the Veteran, attempt to obtain copies of pertinent treatment records identified by him. 4. With any necessary assistance from the Veteran, attempt to obtain copies of his claimed psychiatric treatment in 1965, from the Health Information Management Department, Methodist Dallas Medical Center, 1441 North Beckley Avenue, Dallas, TX 75203, or other current address, noting the Veteran's treatment was by B. L Shinn, MD., on the psychiatric ward. 5. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided with an appropriate supplemental statement of the case and be given opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ MICHAEL E. KILCOYNE 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) (2010).