Citation Nr: 0810092 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 04-40 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for bilateral hearing loss. 3. Entitlement to service connection for tinnitus. 4. Entitlement to an initial disability rating in excess of 60 percent for residuals of prostate cancer. 5. Entitlement to an initial compensable disability rating for migraine headaches. 6. Entitlement to an initial disability rating in excess of 10 percent prior to June 12, 2003, and in excess of 20 percent thereafter, for diabetes mellitus with hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The veteran had active military service from January 1964 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in San Diego, California. The veteran was granted service connection for post-traumatic stress disorder (PTSD) in a December 2005 rating decision. In September 2007, the veteran submitted a written statement titled "Notice of Disagreement" indicating that he wanted to keep his appeal rights open with respect to his PTSD claim. Since this statement was not received within one year of the December 2005 rating decision, it does not represent a formal notice of disagreement with the initial rating or effective date assigned in the December 2005 rating decision. See 38 C.F.R. §§ 20.201, 20.302 (2007). However, under the rules of liberal construction, it might be construed as a claim for an increased rating. Therefore, the Board finds that the RO should contact the veteran and CLARIFY whether the veteran intended to file a claim for an increased disability rating for PTSD. 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 Board has carefully reviewed the evidence of record and regrets that further development, with ensuing delay, is necessary because VA has not completed its duty to assist under the Veterans Claims Assistance Act (VCAA). Specifically, there appears to be outstanding treatment records related to veteran's various claims on appeal. I. SSA Records The veteran submitted a letter dated January 3, 2003, from the State of California Department of Social Services, Disability and Adult Programs Division, which indicates that he has filed a claim for Social Security/Supplemental Security Income disability benefits. However, a computer inquiry by the RO in August 2007 returned a negative response from the Social Security Administration (SSA). In light of the January 2003 development letter sent by the State of California on behalf of the SSA, Board is not satisfied that outstanding SSA records do not exist. Moreover, the veteran has indicated at various times during this appeal that he "has been on disability" since 1994 because of his back, and that he filed for disability benefits following his prostatectomy. The Court of Appeals for Veterans Claims (Court) has held that SSA records cannot be unilaterally deemed irrelevant by VA because the possibility that such records contain relevant evidence pertaining to etiology cannot be foreclosed absent a review of these records. See Quartuccio v. Principi, 16 Vet. App. 183, 187-8 (2002). In the present case, the veteran may have SSA records which contain evidence pertaining to treatment for his claimed back disability. Such records might also pertain to his residuals of prostate cancer. Therefore, the Board cannot ignore the possible existence of these records, and finds that a remand is necessary to make appropriate attempts to obtain any SSA records or a definitive negative response. II. VA Records A January 2003 Disability Report from the SSA indicates that the veteran reported undergoing a hearing test at the Long Beach VA Medical Center (MC) in January 2003. He also indicated that he underwent X-ray testing of his lower back in September 2002 at such facility. A review of the VA medical records associated with the claims folder are negative for either of these reports. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, because the Board has identified outstanding VA records pertinent to the veteran's claimed hearing loss, tinnitus, and low back disability, VA must undertake efforts to acquire such documents as these testing results may be material to his claims; a reasonable effort should be made to obtain such records. See 38 U.S.C.A. § 5103A(b). III. Private Records Throughout this appeal, the veteran has submitted a number of authorization release forms for various private medical facilities and providers which have treated his disabilities on appeal. Pertinent to this remand, the veteran indicated that he received treatment from Dr. Klinsburg since the 1980s for prostate cancer, a back disability, hearing loss, and migraine headaches. In April 2003, he submitted release forms for S&L Medical Group (February 2003), Talbert Medical Group (2002), Foundation Health in San Francisco (2001), Foundation Health in Rancho Cordova (December 1997), Brea Community Hospital (November 1997), and Blue Cross (August 1998). A review of the record reveals that the RO made an attempt in March 2003 to obtain treatment records from Dr. Klinsburg. No reply was received and no second attempt was made to obtain these records. The record fails to reveal any attempts to obtain treatment records from S&L Medical Group, Talbert Medical Group, Foundation Health in San Francisco, Foundation Health in Rancho Cordova, Brea Community Hospital, and Blue Cross. According to 38 C.F.R. § 3.159(c) (2007), VA has a duty to assist veterans in obtaining Federal and private records which may be pertinent to their claim. Regarding private treatment records, VA must make "reasonable efforts" to obtain such records. 38 C.F.R. § 3.159(c)(1) (2007). Moreover, at least one follow up request is required unless evidence is received indicating that the records sought do not exist or that a follow up request would be futile. Id. In the case of the outstanding Dr. Klinsburg treatment records, only one request was made for these records and there is no indication in the claims folder that these records do not exist or that a follow-up attempt would be futile. Therefore, the Board concludes that these appeals should be remanded to allow the agency of original jurisdiction (AOJ) an opportunity to make at least one follow up attempt to obtain these outstanding treatment records. Additionally, there is no indication that any effort has been made to obtain records from S&L Medical Group, Talbert Medical Group, Foundation Health in San Francisco, Foundation Health in Rancho Cordova, Brea Community Hospital, and Blue Cross. The Board acknowledges that the veteran did not indicate what disabilities these records reference; however, since the Board is already remanding the issues pertaining to a low back disability, hearing loss, tinnitus, migraine headaches, and residuals of prostate cancer for other reasons, it finds that appropriate attempts should be made to associate any potentially relevant outstanding treatment records. Thus, as records from these providers may be relevant to the current claims on appeal, the Board finds that a remand is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any SSA disability benefit determinations as well as any copies of the records on which such determinations were based. 2. Obtain any records associated with a September 2002 low back X-ray and a January 2003 hearing test from the Long Beach VAMC. A response, negative or positive, should be associated with the claims file. Requests must continue until the RO determines that the records sought do not exist or that further efforts to obtain those records would be futile. 3. Obtain outstanding treatment records pertaining to the veteran's claimed disabilities from Dr. Klinsburg (1980s through present), S&L Medical Group (February 2003), Talbert Medical Group (2002), Foundation Health in San Francisco (2001), Foundation Health in Rancho Cordova (December 1997), Brea Community Hospital (November 1997), and Blue Cross (August 1998). If possible, use the release forms and information provided by the veteran in March and April 2003. Otherwise, contact the veteran for a new releases. 4. After completion of the above, and any other development deemed necessary, review the expanded record and determine if the veteran has submitted evidence sufficient to warrant entitlement to the benefits sought. Unless the benefits sought on appeal are granted, the veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case and afforded an opportunity to respond. 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). _________________________________________________ MILO H. HAWLEY 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).