Citation Nr: 0000210 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-08 219A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a chronic low back disability. 2. Entitlement to service connection for bilateral pes planus. 3. Entitlement to service connection for residuals of amputation of the 3rd toe of the right foot. 4. Entitlement to service connection for chronic headaches. 5. Entitlement to service connection for scars behind the ears. 6. Entitlement to service connection for urinary bladder infection. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Artur F. Korniluk, Associate Counsel INTRODUCTION The veteran had active service from July 1975 to July 1979 and from August 1986 to September 1987, and service in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) from Department of Veterans Affairs (VA) Denver Regional Office (RO) rating decisions which in May 1997 denied service connection for bilateral pes planus, a chronic low back disability, scar formation behind both ears, chronic headaches, and urinary bladder infection; in May 1998 the RO denied service connection for residuals of amputation of the 3rd right toe. REMAND By rating decision in May 1997, the RO denied the veteran's claim of service connection for urinary bladder infection. Timely notice of disagreement was received in July 1997, but a statement of the case (SOC) addressing that matter has not been issued to date. As the veteran initiated a timely appeal under applicable regulations, the RO must issue him an SOC addressing the aforementioned issue. See Holland v. Brown, 10 Vet. App. 433, 436 (1997) (vacating Board decision and remanding matter when VA failed to issue a SOC after claimant submitted timely NOD). As no SOC appears to have been issued, the claim of service connection for urinary bladder infection remains pending in appellate status, see 38 C.F.R. § 3.160(c) (1999), and requires further action by the RO. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 19.26 (1999); see also Manlincon v. West, 12 Vet. App. 238 (1999). By rating decision in May 1998, the RO denied the veteran's claim of service connection for "3rd right toe amputation." Also in May 1998, the RO issued a statement of the case in response to the veteran's July 1997 notice of disagreement with regard to the May 1997 denial of service connection for pes planus, scars behind the ears, chronic headaches, and low back disability (but omitting the issue of service connection for urinary bladder infection, as discussed above), also listed as an issue on appeal, entitlement to service connection for 3rd right toe amputation. However, as service connection for residuals of amputation of the 3rd right toe was not previously denied and appealed, the May 1998 statement of the case incorrectly listed that matter as an issue on appeal. 38 U.S.C.A. § 7105. However, his accredited representative's October 1998 VA Form 646 may be reasonably construed as a timely notice of disagreement with regard to the May 1998 denial of service connection for 3rd right toe amputation residuals. Thus, that issue is now pending on appeal, see 38 C.F.R. § 3.160(c), and requires further action by the RO. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; see also Manlincon, 12 Vet. App. 238. In his June 1998 substantive appeal, the veteran requested a Travel Board hearing. Although he appears to have failed to report for a Travel Board hearing in January 1999 (notice of which hearing was mailed to his address of record in November 1998), he again requested a Travel Board hearing by May 1999 letter to the RO. The veteran's May 1999 request for another Travel Board hearing was granted and, by June 14, 1999 letter mailed to his address of record, the RO informed him that he was scheduled to appear for a Travel Board hearing on July 19, 1999. However, the June 14, 1999 letter was returned to the RO as undeliverable. On July 8, 1999, the RO obtained his new address and, on that date (July 8), a Travel Board hearing notification letter was re-mailed to his new address. Although a hand-written note on the July 8, 1999 notification letter to the veteran indicates that he failed to appear for his July 19, 1999 hearing, he was not provided a 30-day advance notice of the time and place of the Travel Board hearing. See 38 C.F.R. § 19.76 (1999). Thus, to ensure full compliance with due process requirements, a Travel Board hearing must be rescheduled. 38 C.F.R. §§ 20.703, 20.704 (1999). Accordingly, this case is REMANDED for the following action: 1. If the RO has not already done so, it should issue an SOC to the veteran and his representative, addressing the issues of service connection for urinary bladder infection and residuals of amputation of the 3rd toe of the right foot, and including citation to all relevant law and regulation pertinent to the claims. The veteran and his representative must be advised of the time limit in which to file a substantive appeal. 38 C.F.R. § 20.302(b) (1999). Then, only if an appeal is timely perfected, should these issues be returned to the Board for further appellate consideration. 2. In accordance with appropriate procedures, the RO should again schedule the veteran for a personal hearing before a traveling Member of the Board. A copy of the notice to the veteran of the scheduling of the hearing should be placed in the record, keeping in mind the 30-day advance notice requirement specified at 38 C.F.R. § 19.76 (1999). The case should then be returned to the Board review, if in order. The veteran has the right to submit additional evidence and argument on the matters remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). J. F. Gough Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the U.S. 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) (1999).