Citation Nr: 1018019 Decision Date: 05/14/10 Archive Date: 05/26/10 DOCKET NO. 08-21 022 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office Center (RO) in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for degenerative changes of the left great toe, claimed as arthritis of the left foot. 2. Entitlement to service connection for degenerative changes of the right great toe, claimed as arthritis of the right foot. 3. Entitlement to service connection for residuals of a right ankle injury. 4. Entitlement to service connection for residuals of a left ankle sprain. 5. Entitlement to service connection for plantar calcaneal spur of the left foot, claimed as bone spurs. 6. Entitlement to service connection for plantar calcaneal spur of the right foot, claimed as bone spurs. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew W. Blackwelder, Counsel INTRODUCTION The Veteran served on active duty from August 1972 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the Veteran's aforementioned claims. The Veteran filed a Notice of Disagreement with these denials in February 2008 and a Statement of the Case was issued in June 2008. The Veteran timely perfected his appeal in July 2008. The Board notes that jurisdiction of the Veteran's claims was subsequently transferred to the Wichita, Kansas, RO. In August 2009, the Veteran presented sworn testimony during a Board video conference hearing (VCH), which was chaired by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND After a thorough review of the Veteran's claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the appellant's claims. Initially, the Board notes that in his January 2007 claim, the Veteran reported that he was awarded Social Security Administration (SSA) disability in 2001 due to his feet. It does not appear that the RO attempted to obtain the records associated with this award. The Court of Appeals for Veterans Claims (the Court) has held that relevant medical records from SSA, pertaining to any original or continuing award of disability benefits, should be requested and associated with the claims file before a decision is rendered on a veteran's claim. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). In the present case, the Veteran's claims involve disabilities of the feet. As such, VA is obliged to attempt to obtain and consider any records considered in the award of SSA benefits. See 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2009); see also Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). During his August 2009 Board VCH, the Veteran, for the first time, described additional private and VA treatment he had received. Specifically, he indicated that he was treated at a private hospital in Fairbanks, Alaska in 1990 at the behest of VA and at the VA Medical Center (VAMC) in Phoenix, Arizona in 1980. However, as the appellant had not previously identified this treatment, efforts to obtain these records have not been undertaken. This should be accomplished. The Veteran also testified that he was treated by a physician while in Grafenwöhr, Germany for REFORGER training exercises from August to October 1973, though he gave no indication which medical facility provided his treatment. Interestingly, the Veteran's DD-214 does not indicate that he had any foreign or sea service; thus, his personnel records should be requested to ascertain any dates the Veteran was in Germany. Review of the Veteran's claims file also revealed that the most recent VAMC treatment records associated with the Veteran's file are dated in March 2008. As the Veteran indicated that he had received additional treatment since that time, the AMC must also obtain any outstanding VA treatment records from March 2008 to the present. The Board is aware of the holding in Bell v. Derwinski, 2 Vet. App. 611 (1992), wherein the Court held that VA has constructive notice of VA-generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, the case is REMANDED for the following action: 1. The AMC is requested to contact the SSA to obtain any records associated with the Veteran's claim for disability benefits. All efforts to obtain SSA records should be fully documented, and a negative response should be provided if records are not available. 2. The AMC is requested to obtain the Veteran's service personnel records. 3. The AMC is requested to contact the Veteran and obtain the name of the hospital in Fairbanks, Alaska, where he reported receiving treatment in 1990, obtain authorization and seek to obtain any available records. Any response should be associated with the Veteran's claims file. 4. The AMC is requested to contact the Veteran to determine whether the treatment he received in Grafenwöhr, Germany was provided by a military doctor or by a private doctor. The Veteran should identify the dates of treatment to the extent he is able, and he should provide the name and, if possible, the address of the medical facility that provided the treatment. Any response received should be associated with the appellant's claims file. 5. The AMC is requested to obtain any available treatment records the VAMC in Phoenix, Arizona, beginning in 1980. Any response received should be associated with the Veteran's claims file. 6. The AMC is requested to obtain VA treatment records from February 2008 to the present. 7. Thereafter, if the AMC finds that the Veteran should be afforded a VA examination to determine the nature and etiology of his claimed disabilities, such should be ordered. 8. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a Supplemental Statement of the Case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, these issues should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2009). These claims 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 2002 & Supp. 2009). _________________________________________________ K. A. KENNERLY Acting 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. See 38 C.F.R. § 20.1100(b) (2009).