Citation Nr: 1302397 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 95-23 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating (evaluation) in excess of 10 percent for a cervical spine disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta Georgia, which in pertinent part, granted service connection for traumatic arthritis of knees, ankles, elbows, and neck assigned at 20 percent disabling, effective April 1, 1994. In August 2002, the RO separated the claim and assigned a 10 percent disability rating for the service-connected cervical spine disability. In June 1997, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Atlanta, Georgia. A copy of the transcript is of record. In September 1997, October 2003, October 2006, March 2010, and February 2011 decisions, the Board remanded the claim for additional development and adjudicative action. The case has been returned to the Board for further appellate review. 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. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issue on appeal. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2012); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In October 2012, the Veteran submitted a December 2011 private medical statement from Dr. J. B. addressed to the Social Security Administration (SSA) regarding the Veteran's physical limitations. Dr. J. B. noted, in pertinent part, that the Veteran also suffers from degenerative disc disease of the cervical spine that causes constant pain in the right shoulder and neck. Review of the record shows that reports from the SSA are not of record. The United States Court of Appeals for Veterans Claims has repeatedly held that, when VA is on notice of the possible existence of SSA records that may be relevant to a claim on appeal for VA benefits, VA must obtain them. See Baker v. West, 11 Vet. App. 163, 169 (1998). The Veterans Claims Assistance Act of 2000 (VCAA) also emphasizes the need for VA to obtain records from any federal agency. See 38 U.S.C.A. §§ 5103A(b)(3), (c)(3). Under these circumstances, an attempt should be made by the RO to obtain these SSA records. Furthermore, in September 2012, the Veteran submitted a September 2012 statement reporting that treatment records from the offices of Dr. P. H. and Dr. D. S. will verify that he is due an increase and has continuous pain and suffering due to the service-connected cervical spine disability. The Veteran further noted that Dr. P. H. recommended that he have surgery, listed the contact information for Dr. D. S. and Dr. P. H., and accompanied this statement with a more recent April 2012 private treatment record from Dr. P. H. The most recent treatment record from Dr. D. S. is dated in August 2010. The Board finds that because VA has notice of outstanding private treatment records that are potentially relevant to the claim on appeal, VA has a duty to attempt to obtain these records. See 38 U.S.C.A. §§ 5103A(b)(3), (c)(3). Accordingly, the case is REMANDED for the following actions: 1. Obtain from the SSA a copy of its decision(s), if any, awarding the Veteran disability benefits, as well as copies of all medical records underlying the determination(s). In requesting these records, follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. If the requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing. 2. Attempt to obtain and associate with the record: (A) All outstanding VA outpatient treatment records pertaining to the service-connected cervical spine disability from August 2011, the date of the most recent treatment record, to the present. (B) The necessary authorization from the Veteran for the release to VA of all clinical and/or hospitalization records from Dr. D. S. in Lawrenceville, Georgia and/or Dr. P. H. in Brandon, Florida, as identified by the Veteran in the September 2012 statement, via a VA Form 21-4138. After obtaining any necessary release forms, all efforts to obtain such records should be fully documented and any records obtained should be associated with the record. All facilities must provide a negative response if records are not available and the Veteran should be informed of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c). 3. After completion of the above and any additional development deemed appropriate, the issue of an initial disability rating in excess of 10 percent for a cervical spine disability should be readjudicated. If the benefit sought on appeal is not granted, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which 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 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. 2012). _________________________________________________ MARK W. GREENSTREET 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) (2012).