Citation Nr: 1122169 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-01 166 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Whether new and material evidence has been received sufficient to reopen the Veteran's claim of entitlement to service connection for right shoulder tendonitis and impingement syndrome. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to February 1984. His Form DD 214 also indicates that he had four (4) years of prior military service. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio, which denied the Veteran's request to reopen his previously-denied claim of entitlement to service connection for right shoulder tendonitis and impingement syndrome. In September 2010, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing has been associated with the Veteran's claims folder. 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 on his part. REMAND The Veteran contends that he currently suffers from right shoulder tendonitis and impingement syndrome, which he avers is the result of a right shoulder separation injury in service. After a thorough review of the claims folder, the Board has determined that additional development is necessary prior to the adjudication of the claim. The Veterans Claims Assistance Act of 2000 ("VCAA"), Public Law No. 106-475, 114 Stat. 2096 (2000), states that VA has a duty to assist claimants in substantiating their claims. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. § 3.159 (2010). This includes the duty to assist the claimant in obtaining evidence necessary to substantiate his or her claim. During his September 2010 video conference hearing, the Veteran testified that he had received treatment for his right shoulder at Kaiser Permanente beginning in 1984, shortly after active service. Review of the claims folder, however, reveals that, although the record contains treatment reports from Kaiser Permanente, it does not appear that a request was ever made to obtain records specifically for complaints of, or treatment for his right shoulder. The possibility that such records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Accordingly, pursuant to the VCAA duty to assist, an effort to obtain these records must be made. In addition, the evidence of record appears to suggest that the Veteran may be receiving disability benefits from the Social Security Administration ("SSA"); however, these records are not in the claims folder and it does not appear that a request for such records was ever made. In this regard, the Board has considered the holding of Tetro v. Gober, 14 Vet. App. 110 (2000), and other cases, in which the United States Court of Appeals for Veterans Claims has held that VA has the duty to request information and pertinent records from other Federal agencies when on notice that such information exists. See also Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. As such, the Board finds that an attempt to obtain these records must be made. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). Finally, as the claims folder only contains the Veteran's VA treatment records through November 2008, an attempt should be made to obtain the most up-to-date records pertaining to treatment of his right shoulder tendonitis and impingement syndrome. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees, or submitted to VA by claimant, were "in contemplation of law, before the Secretary and the Board and should be included in the record."). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the Veteran an Authorization and Consent to Release Information form (VA Form 21-4142) in order to request private treatment records from Kaiser Permanente for the Veteran's right shoulder tendonitis and impingement syndrome. After securing the necessary releases, the RO/AMC should attempt to obtain such records. All records obtained or responses received should be associated with the claims file. Any negative response must be included in the claims folder. If the RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2010). 2. The RO/AMC should contact SSA and request all records related to an award of disability benefits. These should include any decision made by an Administrative Law Judge and any medical records relied upon by SSA in making its decision. Any records obtained should be associated with the claims folder. Any negative reply must be included in the claims folder. 3. The RO/AMC should obtain all available VA treatment records pertaining to the Veteran's right shoulder tendonitis and impingement syndrome since December 2008 and associate with the claims folder. Any negative reply should be included in the claims file. 4. After completion of the aforementioned development, the RO/AMC should review all medical and SSA records received to determine whether there is any objective evidence to show that the Veteran was treated for a right shoulder disability, especially for the period beginning in 1984, after his separation from service. If so, the RO/AMC should take whatever other appropriate development of the claim is deemed necessary, to include a VA examination, if warranted. 5. Thereafter, the issue on appeal should be readjudicated. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate consideration. 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. 2010). _________________________________________________ BARBARA B. COPELAND 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) (2010).