Citation Nr: 1321343 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-37 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides. 2. Entitlement to service connection for a heart disability, to include ischemic heart disease, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from October 1964 to September 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that the appellant filed a notice of disagreement with a November 2010 rating decision which reduced his disability rating for large B-cell lymphoma from 100 percent to noncompensable. A statement of the case was issued in October 2011. As the appellant did not file a timely substantive appeal, the issue is not before the Board. 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 The appellant's claims for entitlement to service connection for diabetes mellitus and a heart disability were initially denied by the RO in an August 2006 rating decision. The appellant appealed the decision and a statement of the case was issued in September 2009. The Veteran filed a timely substantive appeal and a supplemental statement of the case was issued in March 2010. The Veteran did not withdraw his appeal. Additional evidence has been added to the claims file since the March 2010 supplemental statement of the case including statements from the appellant and VA treatment records, which include information about his treatment for diabetes mellitus. In August 2011 the RO incorrectly construed a May 2011 statement from the appellant as a claim to reopen and issued a rating decision denying reopening of the claims for service connection for diabetes mellitus and ischemic heart disease. As the RO did not reopen the claims in the August 2011 rating decision, the RO did not adjudicate the claims on the merits. Although there is new evidence of record, including VA treatment records, no supplemental statement of the case has been issued for the claims since March 2010. Consequently, the Board finds that the claim must be remanded to issue a supplemental statement of the case. In a June 2011 statement, the appellant stated that he had a heart attack at age 38 and has taken medication since that time. As the appellant was born in 1943, he was 38 in 1986. He reported that he was transferred by ambulance to the Syracuse VA hospital and was an inpatient for 3 weeks. He stated that VA should have all his records on the heart attack since they were the ones that were and have been his primary doctor since the heart attack. He also stated that his primary doctor was at the Cortland-Ithaca outpatient clinic. The duty to assist includes obtaining records in the custody of a Federal department or agency, including VA medical records, and making reasonable efforts to obtain private medical records. 38 C.F.R. § 3.159(c)(1), (2); Golz v. Shinseki, 590 F.3d 1317, 1321-23 (Fed. Cir. 2010). As the appellant has identified relevant VA treatment records that are not in the claims file, the claim must be remanded to obtain the records. Accordingly, the case is REMANDED for the following action: 1. Obtain the appellant's complete VA treatment records, including records from Syracuse Hospital and the Cortland-Ithaca outpatient clinic from 1986 to present. If no records can be obtained the claims file must indicate this fact. 2. Thereafter, after reviewing all the evidence of record, readjudicate the issues on appeal of entitlement to service connection for diabetes mellitus and entitlement to service connection for a heart disability. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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. 2012). _________________________________________________ MICHAEL MARTIN 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).