Citation Nr: 1122880 Decision Date: 06/14/11 Archive Date: 06/28/11 DOCKET NO. 08-03 330A ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a balance disorder. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a foot disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The appellant had active duty for training from September 1985 to February 1986. This appeal to the Board of Veterans Appeals (Board) arises from a February 2007 rating action that denied service connection for headaches and balance and foot disorders. In March 2009, the appellant testified at a Board hearing before the undersigned Veterans Law Judge at the RO. By decision of May 2009, the Board remanded this case to the RO for further development of the evidence and for due process development. The appeal is again REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The VA will notify the appellant if further action is required. REMAND Considering the record in light of the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA) (38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010)), the Board finds that all notice and development action needed to render a fair decision on the claims on appeal has not been accomplished. A remand by the Board confers upon a veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In May 2009, the Board remanded this case to the RO to obtain and associate with the claims folder a copy of any Social Security Administration (SSA) decision awarding or denying the appellant disability benefits, together with all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Although in September 2009 information was received from the SSA that the appellant's claim for disability benefits had been denied, the medical records underlying that determination were not furnished. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; also, Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the RO should again contact the SSA and obtain and associate with the claims folder copies of all medical records underlying the SSA decision denying the appellant disability benefits, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Under 38 C.F.R. § 3.159(b), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(1). The action identified herein is consistent with the duties imposed by the VCAA. However, identification of specific action requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, this case is hereby REMANDED to the RO via the AMC for the following action: 1. The RO should obtain from the SSA copies of all medical records underlying the determination denying the appellant disability benefits. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Under 38 C.F.R. § 3.159(b), efforts to obtain Federal records should continue until either the records are received or notification is provided that further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(1). All records/responses received should be associated with the claims folder. 2. If any records sought are not obtained, the RO should notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. To help avoid future remand, the RO must ensure that all requested development action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet. App. at 271. 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 5. If any benefit sought on appeal remains denied, the RO must furnish the appellant an appropriate Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and afford her the appropriate time period for response before the claims folder is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether any benefit requested should be granted or denied. The appellant needs take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate timeframe. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the U.S. Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2010).