Citation Nr: 1229546 Decision Date: 08/27/12 Archive Date: 09/05/12 DOCKET NO. 05-24 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for residuals of a stroke. REPRESENTATION Appellant represented by: David L. Huffman, Attorney-at-Law WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to November 1973. He also service in the Niar National Guard and Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center VAROIC in Philadelphia, Pennsylvania. Jurisdiction is with the RO in Huntington, West Virginia. The Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge in January 2007. A transcript of that hearing is associated with the claims file. The Board previously remanded this matter in April 2007 and in March 2010. Unfortunately another remand is necessary. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required on his part. REMAND A remand is necessary so that VA can meet its duty to assist the Veteran in obtaining administrative and medical records associated with his claim for Social Security disability benefits related to his stroke. In May 2000, the RO received a VA Form 21-526 in which the Veteran claimed entitlement to nonservice-connected pension. He indicated that he last worked on April 7, 2000, and that he became totally disabled when he had a stroke on April 17, 2000. In section 34A of the VA Form 21-526 he indicated that he had applied for either Social Security Administration or Railroad Retirement benefits. In an October 2000 rating decision, the RO granted a permanent and total evaluation for the purpose of nonservice-connected pension. Social Security Administration inquiry reports from May 2003 and from December 2006 indicate that the Veteran was being paid Social Security benefits with a disability onset date of July 23, 2001, and dates of initial and current entitlement of January 2002. The Board notes that in July 2001 the Veteran was fifty-two years old; not yet of age to be eligible for Social Security retirement benefits. In May 2003, the VA reduced his pension benefits because it had been notified that he was receiving Social Security benefits. In an August 2003 letter to a Member of Congress, the Veteran's spouse reported that the Veteran had suffered strokes which left him unable to work, had been awarded a 100 percent VA rating, and that he had applied for Social Security disability benefits. She stated that in January 2003 he was informed that he would be awarded Social Security disability benefits, and that he had been receiving both the Social Security disability payments and the VA payments for a short time. She stated that VA had requested repayment and that such repayment would create a great hardship for her and the Veteran. Although the request for waiver of the overpayment was granted, this evidence shows that a reasonable possibility exists that there are records held by the Social Security Administration that are relevant to the Veteran's claim of entitlement to service connection for residuals of a stroke. There are no such records associated with the claims file and there is no indication that VA has ever requested the records from the Social Security Administration. VA has a duty to assist a claimant in obtaining evidence to substantiate a claim for VA benefits, including assisting a claimant in obtaining any identified relevant records held by a Federal department or agency. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c). "Relevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim." Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). In Golz, the U.S. Court of Appeals for the Federal Circuit explained that "[a]s long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the relevant records." Id. at 1323. In the instant case, the Veteran's spouse has indicated that the Veteran obtained Social Security disability benefits following his stroke. This is evidence that a reasonable possibility exists that the Social Security Administration is in possession of records relevant to the Veteran's claim for service connection for residuals of a stroke. VA thus has a duty to assist the Veteran in obtaining such records. See Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (requiring that VA seek Social Security Administration records when the Social Security Administration has determined that the Veteran was disabled due to a psychiatric disability, the same disability for which he was seeking VA benefits); Murincsak v. Derwinski, 2 Vet. App. 363, 366, 370 (1992) (stating that where the Social Security Administration has determined that a veteran is unemployable such records are relevant to a claim for VA benefits based on unemployability). The Veteran has reported that he had symptoms of a stroke while on either active duty for training or inactive duty for training. Records from the National Guard indicate that he had inactive duty for training in February 2001 but no relevant active duty for training. As such, if records held by the Social Security Administration include any documentation of symptoms occurring on a date during which he had inactive duty for training, such records could potentially be favorable to his claim. On remand, the RO must make efforts as required by 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c) to obtain any relevant records held by the Social Security Administration. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant administration and medical records held by the Social Security Administration with regard to the Veteran's claim for Social Security disability benefits. Associate all obtained records with the claims file. If the records are not obtainable, document all efforts to obtain the records and obtain negative replies and associate such documentation and replies with the claims file. If the records are not obtained, provide the Veteran with the notice required by 38 C.F.R. § 3.159(e). 2. After completing any additional development required after receipt of additional evidence, if any, readjudicate the issue on appeal. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The Veteran 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. 2011). _________________________________________________ FRANK J. FLOWERS 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) (2011).