Citation Nr: 1326548 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 07-20 965A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for temporomandibular joint syndrome. 4. Entitlement to service connection for depression also claimed as secondary to physical disabilities. 5. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a heart disability. 6. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral hearing loss disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service from May 1976 to June 1979. This case comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing at the RO before the undersigned Veterans' Law Judge in September 2012. A copy of the hearing transcript has been associated with the claims file. 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 Veteran appeals the denial of service connection for a low back disability. He contends that he was injured during service after a fall and then he reinjured his back post service while working at a nursing home in 2008. The Veteran maintains that his service treatment records are incomplete. He recalls being told years ago that some of his records were burned in a fire. A review of the record discloses that only the Veteran's entrance and separation examinations are of record. As the Veteran has put VA on notice that some of his records are missing and it does not appear that a search to locate these records has been made, a remand is warranted. VA has an affirmative duty to assist claimants obtain relevant records. See 38 U.S.C.A. 5103A (b)(1) (West 2002). In light of the duty to assist, VA should attempt to locate and associate with the record all service treatment records. It is noted on his separation examination that he was treated at "Ft. Jackson, Moncrief Hospital." It is unclear whether this was inpatient or outpatient treatment. Inpatient records are sometimes kept separate from outpatient records, and an attempt should be made to ascertain whether there are inpatient records. Additionally, it does not appear that the appellant's service personnel records have been obtained. It is possible that they may contain pertinent information such as limited duty slips. In view of the lack of overall medical records, an attempt to obtain those records should be undertaken. A December 1997 VA Social Work note on file reveals a history of orthopedic surgery at a "County USC." Appellant should be contacted to identify the location of this facility and assist in obtaining any available records. Finally, it is noted that the Veteran sustained a lumbar fracture in an auto accident in 2003. Records of all pertinent treatment should be identified and obtained. Furthermore, in a December 2009 rating decision, the Veteran was denied service connection for tinnitus, temporomandibular joint syndrome, depression, and denied his application to reopen the claims for entitlement to service connection for a heart disability and a bilateral hearing loss disability. He submitted a notice of disagreement to the decision in March 2010. The Board notes, however, that the Veteran has not been issued a Statement of the Case and given an opportunity to perfect an appeal of the issues by submitting a timely substantive appeal. Manlicon v. West, 12 Vet. App. 238 (1999). As such, to protect the Veteran's procedural due process rights we find that a remand is warranted so that the Veteran can be issued a Statement of the Case and be afforded the opportunity to perfect an appeal. Accordingly, the case is REMANDED for the following actions: 1. Request from the appropriate authority all service treatment records that have not been obtained and associate them with the record. It should be determined if there are inpatient records from the Ft. Jackson hospital cited above. His service personnel records should also be obtained. If the information requested cannot be obtained, such should be noted in the record, and action should be taken in accordance with 38 C.F.R. § 3.159(e). 2. Contact the appellant and ask that he identify the location of the "County USC" where he reportedly had orthopedic surgery in 1997 and where he received treatment following a 2003 motor vehicle accident. He should be asked to provide appropriate release forms as needed. All attempts to obtain records should be identified. Appellant's failure to respond will be taken to mean that no additional records of this treatment can be obtained. 3. Thereafter, the RO/AMC should readjudicate the issue on appeal. If the determination remains unfavorable to the veteran, he and his representative should be provided with a Supplemental Statement of the Case that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered. The Veteran should be given an opportunity to respond to the Supplemental Statement of the Case prior to returning the case to the Board for further review. 4. A Statement of the Case should be issued for the claims of entitlement to service connection for tinnitus, temporomandibular joint syndrome and depression, and the issues of whether new and material evidence has been received to reopen the claims for entitlement to service connection for a heart disability and a bilateral hearing loss disability. The Veteran and his representative should be advised of the necessity of filing a timely substantive appeal if he wants the Board to consider the issues. If a timely substantive appeal is not filed, the matter should be closed. The appellant has the right to submit additional evidence and argument on the matter or 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 D. LYON 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).