Citation Nr: 1304147 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 08-28 572 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: Sidney J. Hughes, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from June 1956 to August 1957. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO), which denied reopening the claim of entitlement to service connection for a low back disorder. The Veteran testified at a videoconference hearing before the undersigned in August 2011; a transcript of the hearing is of record. The appeal is REMANDED to the RO. VA will notify the appellant if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND A review of the claims file reveals that the Veteran testified at his August 2011 Board videoconference hearing that he was awarded Social Security Administration (SSA) disability benefits due to his back in the 1980's (see page 24 of hearing transcript). However, the claims file does not include a copy of the award decision or the medical evidence upon which the decision was based. Under 38 U.S.C.A § 5103A(c)(3) (2012), VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain. Lind v. Principi, 3 Vet. App. 493 (1992); Murinscak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Although not dispositive as to an issue that must be resolved by VA, any relevant findings made by the SSA are evidence which must be considered. White v. Principi, 243 F. 3d 1378 (Fed. Cir. 2001); Wensch v. Principi, 15 Vet. App. 362 (2001). As a matter of clarification, with respect to the issue of whether new and material evidence has been received to reopen a claim for service connection for a low back disability, VA's obligation to obtain the SSA's records in the context of an application to reopen a previously denied claim is not contingent upon the Veteran first showing that new and material evidence has been submitted. Although 38 U.S.C.A § 5103(f) provides that with regard to previously disallowed claims "[n]othing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured," the use of the term "section" refers not to the enactment of the entirety of the VCAA, but instead to the plain meaning of the term "section" such as in 38 U.S.C.A § 5103(f). Stated alternatively, the provisions of 38 U.S.C.A § 5103A(c)(3), which mandate that VA obtain relevant SSA records are in a different section of the VCAA. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). Thus, subsequent to receipt of the SSA records and any other identified records, the RO will readjudicate the issue of whether new and material evidence has been submitted to reopen the claim of service connection for a low back disorder. The Board also notes that the Veteran testified at his August 2011 Board videoconference hearing that he has had treatment for his low back over the years from several private physicians (see page 21 of hearing transcript). While there are private treatment records on file, it is unclear if all relevant private treatment reports are of record. 38 C.F.R. § 3.159(c) (2012). Therefore, the case is REMANDED to the RO for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO must take appropriate action to contact the Veteran and ask him to provide the names, addresses and approximate dates of treatment for any health care providers, including VA and private, who have treated him for his low back disorder since service. After obtaining any necessary authorization from the Veteran for the release of his private medical records, the RO should obtain and associate with the file all records that are not currently on file. If VA is unable to secure these records, VA must notify the Veteran as well as his attorney and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him 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) (2012). 2. The RO will obtain from SSA a copy of its decision regarding the Veteran's grant of SSA disability benefits in the 1980's, as well as the medical records relied upon in that decision. A copy of any records obtained, to include a negative reply if no records are available, will be included in the claims file. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran and his attorney must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(c)(2),(e) 3. Following completion of all indicated development, the RO will readjudicate the issue of whether new and material evidence has been received to reopen a claim for service connection for a low back disorder, considering any and all evidence that has been added to the record since the June 2011 Supplemental Statement of the Case. If the benefit sought on appeal remains denied, the Veteran and his attorney will be provided a Supplemental Statement of the Case, which should include all pertinent law and regulations. The Veteran and his attorney will then be given an appropriate opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ J. D. DEANE Acting 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 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).