Citation Nr: 1310883 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 08-04 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for diabetes mellitus, claimed as due to Agent Orange exposure. 2. Entitlement to service connection for ischemic heart disease, claimed as due to Agent Orange exposure. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active service from May 1966 to May 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In May 2009, the Veteran testified at the Central Office before a Veterans Law Judge who is no longer employed by the Board; a copy of the transcript has been associated with the record. In a January 2013 letter, the Board apprised the Veteran that the Veterans Law Judge who conducted his hearing was no longer employed by the Board. He was given an opportunity to request another hearing before a different Veterans Law Judge. In a response received later in January 2012, the Veteran indicated that he did not wish to appear for another hearing. In a December 2011 decision, the Board denied the Veteran's service connection claim for diabetes mellitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2012 Memorandum, the Court vacated the December 2011 Board decision, and remanded the case to the Board for further proceedings consistent with its decision. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND As to the claim for service connection for ischemic heart disease, the Board notes that in a December 2011 rating decision, the RO denied service connection for ischemic heart disease. In January 2012, the Veteran filed a Notice of Disagreement (NOD) as to that rating decision and then in February 2012, he filed a VA Form 9, Appeal to Board of Veterans' Appeals. The Board notes that although the Veteran filed a VA Form 9, the RO has not yet issued a Statement of the Case (SOC) with regard to that issue and thus the VA Form 9 is premature. As the RO has not provided the Veteran with an SOC in response to this NOD, the matter must be remanded for the RO to issue a statement of the case addressing the claim for service connection for ischemic heart disease. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). With regard to the claim for service connection for diabetes mellitus, the Veteran submitted additional evidence in January 2013 and specifically indicated that he was not waiving consideration of that evidence in the first instance by the agency of original jurisdiction (AOJ). He requested that his claim be remanded for the AOJ to consider the newly submitted evidence. Therefore, the Board must remand this matter for the AOJ to review the evidence in the first instance. 38 C.F.R. § 20.1304 (2012). Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Provide the Veteran and his representative with an SOC concerning the claim for service connection for ischemic heart disease. The Veteran and his representative should be provided with an opportunity to respond. If, and only if, an adequate and timely substantive appeal is submitted for purposes of perfecting this appeal, return the claim for service connection for ischemic heart disease to the Board for further appellate consideration. 2. Readjudicate the claim for service connection for diabetes mellitus based on the evidence since the claim was last adjudicated in March 2010. If service connection remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case which discusses all pertinent regulations and summarizes the evidence. An appropriate period for response should be allowed; thereafter, the case should be returned to the Board, if in order. The Veteran 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. 2012). _________________________________________________ BETHANY L. BUCK 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) (2012).