Citation Nr: 0810525 Decision Date: 03/31/08 Archive Date: 04/09/08 DOCKET NO. 05-00 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 40 percent for post- operative back injury with arthritis and degenerative disc disease of the lumbosacral spine (hereinafter, "low back disorder"). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The veteran served on active duty from August 1981 to February 1982, and from February 1983 to November 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which continued the assigned 40 percent rating for the veteran's service-connected low back disorder. The veteran provided testimony at a hearing before the undersigned Veterans Law Judge in February 2008. A transcript of this hearing has been associated with the veteran's VA claims folder. For the reasons stated below, the Board concludes that additional development is required in the instant case. Accordingly, the appeal will be REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Here, the Board finds that a remand is required to comply with both duties. Initially, the Board observes that the veteran was accorded medical examinations in March 2004, February 2005 and April 2006 which evaluated the severity of his service-connected low back disorder, and medical treatment records were obtained in conjunction with this case. However, at his February 2008 hearing he testified that he had been awarded disability benefits from the Social Security Administration (SSA) in October 2007. The United States Court of Appeals for Veterans Claims (Court) has long held that the duty to assist includes requesting information and records from the SSA which were relied upon in any disability determination. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight); Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). The record also reflects, to include the veteran's hearing testimony, that he had participated in VA's Vocational Rehabilitation program. Since it appears that these records remain outstanding and may be relevant to the veteran's claim, efforts must be made to obtain them. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). The veteran further testified at his February 200 hearing that he had received recent treatment for his low back disorder at the VA medical facility in Washington, DC, since June 2007. He also identified a private medical facility as providing treatment from October 2006 to June 2007. However, the most recent Supplemental Statement of the Case (SSOC) dated in January 2007 indicates that no medical records were on file that were dated after October 2006. Thus, a remand is also required to obtain these records. In addition to the obtaining the outstanding medical records, a remand is required to comply with the duty to notify. The Board acknowledges that notification letters were sent to the veteran in February 2004, March 2005, and March 2006. However, the Court recently issued a decision in the case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), regarding the information that must be provided to a claimant in the context of an increased rating claim. Specifically, the Court held that section 5103(a) requires: (1) at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; and (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores. As a remand is already required in the instant case, the Board finds that the veteran should be sent additional notification that is consistent with the Court's guidelines regarding increased rating claims as outlined in Vazquez- Flores. For the reasons stated above, this case is REMANDED for the following: 1. Please provide the veteran with adequate notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), to include any necessary notification regarding increased rating claims as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The RO should obtain from the Social Security Administration copies of 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. The RO should associate the VA vocational rehabilitation folder with the claims file. 4. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for his low back disorder since October 2006. After securing any necessary release, the RO should obtain those records not on file, to specifically include VA treatment records. 5. After completing any additional development deemed necessary, the RO should readjudicate the issue on appeal in light of any additional evidence added to the records assembled for appellate review. If the benefit requested on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a SSOC, which addresses all of the evidence obtained after the issuance of the last SSOC in January 2007, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. 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. 2007). _________________________________________________ BARBARA B. COPELAND 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) (2007).