Citation Nr: 1304372 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 10-15 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether new and material evidence has been received to reopen a claim for service connection for an acquired psychiatric disorder other than PTSD. 3. Whether new and material evidence has been received to reopen a claim for service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active duty service from November 5, 1970, to December 9, 1970, in the United States Army. He received a medical discharge under honorable conditions. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In February 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO hearing). In July 2012, the Veteran also presented testimony at a travel board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the claims folder. The Board also notes that the Veteran submitted additional VA treatment records in October 2012, which was after the certification of his appeal. However, he also provided a waiver of the RO's initial consideration of that evidence. Therefore, the Board has accepted this additional evidence for consideration at this time. See 38 C.F.R. §§ 20.800, 20.1304 (2012). 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 The Board finds that additional development is necessary before the claims on appeal can be adjudicated. The Veteran has testified that he is in receipt of Supplemental Security Income (SSI) benefits from the Social Security Administration (SSA) due to his psychiatric and back disabilities since the early 1990s. See February 2010 DRO hearing testimony at page 7; July 2012 travel board testimony at page 8. VA is required to obtain relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes VA to obtain. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2). SSI benefits can be awarded, in certain circumstances, based on the presence of disability and likely were in the Veteran's case. See 20 C.F.R. § 416.202 (explaining the bases of eligibility for SSI as age 65 or older; blindness; or disability). The receipt of SSI carries with it the obligation to cooperate with required periodic redeterminations of eligibility, including in the form of medical examinations. See 20 C.F.R. §§ 416.204, 416.989, 416.990. Although disability determinations by SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits, and VA has a duty to assist the Veteran in gathering these records. Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996). VA must make as many requests as necessary to obtain "relevant" SSI records, unless a determination is made that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). These federal SSI records are not on file; therefore, the RO/AMC should attempt to obtain them before deciding the service connection claims, as these records may be pertinent. Id. The Board also notes that the claims file does not contain any VA treatment records dated since August 2012. Because the Board is already remanding the case in order to secure outstanding SSI records, any additional VA treatment records dated after August 2012 should also be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). In addition, the Board finds that the RO/AMC should make a specific request for additional inpatient or "clinical" records from the Ireland Army Community Hospital in Fort Knox, Tennessee, dated in November 1970 or December of 1970. The claims folder does contain service treatment records showing treatment at Ireland Army Community Hospital in Fort Knox in November 1970; however, the Veteran contends there are additional service treatment records that would reveal hospitalization for one to two days for a back injury with x-rays taken at that time. See October 1998 NPRC request from Veteran; February 2010 DRO hearing testimony at pages 4-5, 9; July 2012 travel board testimony at pages 5, 15. An attempt should be made to determine if such records do exist. VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) (West 2002). VA is required to obtain the Veteran's service treatment records or other relevant service records held or maintained by a government entity. 38 U.S.C.A. § 5103A(c). When VA attempts to obtain records from a Federal department or agency, the efforts to obtain these records must continue until they are obtained unless it is reasonably certain they do not exist or that further efforts to obtain them would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2), (c)(3). The standard for VA is quite high. In this vein, the records of inpatient or "clinical" treatment in service are sent to the National Personnel Records Center (NPRC) after one to two calendar years, but are kept in a separate file from the file containing other service treatment records. See VA Adjudication Procedure Manual, M21-1MR, Part III, Subpart iii, Chapter 2, Sections A and B. The Board is unable to discern whether a specific request for "clinical" records was made in this case or whether the specific code to request records of inpatient or "clinical" was used. Given the relevance of any potentially missing inpatient or "clinical" service treatment records or x-rays, the Board finds it necessary to remand the claim to ensure that all proper avenues for securing these records have been pursued and to afford the Veteran every benefit of assistance from VA. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should request the Veteran's records dated since the 1990s from SSA pertaining to his SSI benefits. A specific request should be made for copies of any disability determination and all medical records considered for SSI benefits. All attempts to secure these records, and any response received should be documented in the claims file. If no records are available or do not exist, a response to that effect should be documented in the claims file, and the Veteran should be notified. 2. The RO/AMC should obtain any outstanding treatment records from the VAMC in Huntington, West Virginia, dated since August 2012. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 3. The RO/AMC should contact the NPRC, RMC, or any other appropriate facility and attempt to obtain alleged additional INPATIENT OR "CLINICAL" RECORDS AND X-RAYS from the Ireland Army Community Hospital in Fort Knox, Tennessee, dated between November 1970 and December 1970. All attempts to secure any additional inpatient or "clinical" service treatment records must be documented in the claims file. If no inpatient or clinical records are available or further attempts to secure them would be futile, a response to the effect should be documented in the claims file. 4. The RO/AMC should then review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. The RO/AMC should also complete any further development deemed necessary. 5. Thereafter, the RO/AMC should consider all of the evidence of record, and readjudicate the issues on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and allow the Veteran and his representative an opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO/AMC. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). _________________________________________________ JESSICA J. WILLS 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).