Citation Nr: 0812951 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-07 604 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability (TDIU). 2. Whether new and material evidence has been received to reopen a claim of service connection for a bilateral hip disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Ishizawar, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from February 1985 to February 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the North Little Rock, Arkansas Department of Veterans Affairs (VA) Regional Office (RO). In February 2008, a Travel Board hearing was held before the undersigned. A transcript of this hearing is of record. At the hearing, the undersigned granted a motion to advance this case on the Board's docket. As the issue of whether new and material evidence has been received to reopen a claim of service connection for a bilateral hip disability may have bearing on the veteran's claim seeking entitlement to TDIU, the issues are inextricably intertwined. Consequently, consideration of the claim for TDIU must be deferred pending final decisions on the other issue. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any action on his part is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002) and the regulations implementing it apply in the instant case. While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159 (2007). The veteran claims he has a bilateral hip disability as a result of an injury he sustained in service. The RO originally denied the service connection claim for a bilateral hip disability in October 1990 based essentially on a lack of evidence of continuing hip complaints from service discharge to the present. The veteran filed to have this claim reopened in October 2005. The record includes service medical records showing that he was seen twice in April 1986 and once in October 1986 for right hip pain. He alleges that he injured his hip in service when he stepped out of a truck, jarred his hip, and fell. He states he has had continuing treatment for his hip condition ever since then. A complete record is necessary for the determination that must be made regarding the instant claim. In the veteran's October 2005 claim to reopen, he stated that he had been seeking treatment from the VA medical center in Little Rock, Arkansas since 1990. At his February 2008 Travel Board hearing, he testified that ever since his service discharge, he had been seeking treatment for his hips from the John L. McClellan Memorial Veterans Hospital; this includes treatment from a VA chiropractor. VA treatment records have not been associated with the claims file. VA treatment records are constructively of record, may be pertinent to the matter at hand, and must be secured. The veteran also testified that, as part of his claim for Social Security Administration (SSA) disability benefits, he was referred for a physical examination in North Little Rock, Arkansas. As medical records considered in conjunction with the SSA award may contain information that has bearing on his claim and are constructively of record, they must be secured and considered before a determination is made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following: 1. The RO should obtain copies of complete records of all relevant treatment the veteran has received through the Central Arkansas Veterans Healthcare System, and copies of all medical records considered by SSA in their determination on the veteran's claim for SSA disability benefits. 2. The RO should arrange for any further development suggested by the results of the development sought, then re-adjudicate this claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and provide the appellant and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ ROBERT E. O'BRIEN 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).