Citation Nr: 0809783 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-37 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a cervical spine disability. 2. Entitlement to service connection for a left shoulder disability. 3. Entitlement to service connection for a left thumb disability. 4. Entitlement to service connection for a left arm disability. 5. Entitlement to service connection for a left great toe disability. 6. Entitlement to service connection for depression, to include as secondary to a service-connected disability. 7. Whether new and material evidence was received to reopen a claim for entitlement to service connection for a low back disability. 8. Entitlement to a total disability rating based upon individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1975 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision by the Wichita, Kansas, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2006, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was remanded for additional development in February 2007. By correspondence dated February 1, 2007, the Board notified the veteran that his motion to advance his case on the docket had been granted. 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 Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in September 2004, January 2005, March 2005, July 2005, and March 2007. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the Court also held that in order to successfully reopen a previously and finally disallowed claim, the law requires the presentation of a special type of evidence-evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. An additional notice as to these matters was provided in March 2007. The revised VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). In this case, the Board notes that in correspondence dated in September 2007 the veteran's attorney raised specific matters in dispute from an August 2007 Social Security Administration (SSA) disability determination for consideration in his appeal. Although SSA records were obtained by the RO in March 2007, the available records do not include a copy of the August 2007 decision. It is also significant to note that the compact disc provided by SSA was broken during the handling of the case. In addition, a review of the record shows that a September 2007 VA examiner referred to reports "during the last several months" from a VA neurosurgeon pertinent to the veteran's claims. These reports are not of record and VA medical records were last obtained and added to the claims file in September 2005. Therefore, additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following: 1. The veteran should be requested to provide the names and addresses and dates of treatment of all medical care providers, VA and non-VA, that have provided any treatment pertinent to his claims since September 2005 After the veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the records identified by the veteran cannot be obtain, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. Appropriate efforts should be taken to obtain a complete copy of the veteran's Social Security Administration disability determination in August 2007, as well as all associated records. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed. All applicable laws and regulations should be considered. If any benefit sought remains denied, the appellant and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ RENÉE M. PELLETIER 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).