Citation Nr: 1304615 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 10-39 550 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability. 3. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for a cervical spine disability. 4. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for bilateral hearing loss. 5. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for hypertension. 6. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for a cardiac disability. 7. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for a skin disability, groin. 8. Whether there is new and material evidence to reopen a previously denied claim of entitlement to service connection for residuals, status-post clavus durae, fifth toe, bilateral. REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from December 1973 to December 1976, and has subsequent unverified service in the Alabama National Guard from February 1977 to May 1991. This appeal to the Board of Veterans' Appeals (Board) is from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which determined that new and material evidence sufficient to reopen the previously denied claims on appeal had not been received. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c). 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 necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran seeks to reopen his previously denied claims of entitlement to service connection for: PTSD; lumbar and cervical spine disabilities; bilateral hearing loss; hypertension; a cardiac disability; a skin disability, groin; and residuals, status-post clavus durae, fifth toe, bilateral. The Veteran asserts that he had service in the Alabama National Guard from February 1977 to May 1991, and that he was medically discharged from such service due to his occupational March 1981 cervical spine injury. His service separation record from the Alabama National Guard indicates that he entered a period of service in September 1985 and separated in May 1991, with 4 years, 6 months, and 16 days or prior reserve service. There is no indication that VA sought to clarify the dates of the Veteran's service in the Alabama National Guard, or sought his service treatment or personnel records. The Veteran's outstanding service records from the Alabama National Guard may contain evidence relevant to the claims currently on appeal. Such is significant, as the Veteran may be entitled to consideration of his claims on the merits, as opposed to on a new and material evidence basis. 38 C.F.R. § 3.156(c)(1) (2012). Thus, on remand, the RO should make all necessary attempts to obtain the Veteran's complete service records from the Alabama National Guard. It also appears there are outstanding Social Security Administration (SSA) records. Of record is the Veteran's September 1991 award letter and decision, indicating that the Veteran's lumbar and cervical spine disabilities were considered in SSA's decision. While April 1991 and July 1991 assessments of the Veteran's lumbar and cervical spine disabilities from private physicians are of record, attached to records related to worker's compensation litigation, it is not clear which party submitted such, or whether such represent the entirety of the medical evidence upon which the SSA based its decision. VA requested, in July 1994, the favorable SSA decision; however, to date, no party has requested the records upon which the SSA relied. VA has an obligation to attempt to obtain these SSA records since they are potentially relevant to his VA claims. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010); Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet. App. 198, 204 (1997); and Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also 38 C.F.R. § 3.159(c)(2) and (3). Thus, on remand, the RO should make all necessary attempts to obtain the all relevant records related to the Veteran's claim for disability benefits from the SSA, to include any treatment records upon which SSA based its decision. It appears to the Board that the Veteran was involved in worker's compensation litigation. Of record is a December 1991 deposition transcript of a physician indicating that the Veteran incurred a March 1981 occupational cervical spine injury, as well as multiple treatment records and assessments that may have been conducted for the purpose of the worker's compensation litigation. Thus, on remand, the RO should make all necessary attempts to obtain all relevant records related to the Veteran's claim for worker's compensation, to include any outstanding treatment records used in resolving any litigation. See 38 C.F.R. § 3.159(c). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate government entity, including the National Personnel Records Center (NPRC) as well as any other appropriate State or Federal agency, including the Alabama National Guard, and obtain the Veteran's service and personnel records, including any exact dates the Veteran was on active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). If pay records are required to verify all periods of ACDUTRA or INACDUTRA, obtain these pay records or whatever clarifying information is needed. If no such records can be found, or no longer exist, ask for specific documented confirmation of this fact. All efforts to obtain such records must be documented in the claims file. If it is reasonably certain these records do not exist or that any further efforts to obtain them would be futile, document such in the claims file and provide the Veteran appropriate notice. 38 C.F.R. § 3.159(c)(2), (c)(3), (e)(1). 2. Obtain all SSA records pertaining to the Veteran, including all treatment records that formed the basis of any decision rendered by SSA. If no such records can be found, or no longer exist, ask for specific documented confirmation of this fact. All efforts to obtain such records must be documented in the claims file. If it is reasonably certain these records do not exist or that any further efforts to obtain them would be futile, document such in the claims file and provide the Veteran appropriate notice. 38 C.F.R. § 3.159(c)(2), (c)(3), (e)(1). 3. Obtain all worker's compensation records pertaining to the Veteran, including all treatment records used in resolving any litigation. If no such records can be found, or no longer exist, ask for specific documented confirmation of this fact. All efforts to obtain such records must be documented in the claims file. If it is reasonably certain these records do not exist or that any further efforts to obtain them would be futile, document such in the claims file and provide the Veteran appropriate notice. 38 C.F.R. § 3.159(c)(2), (c)(3), (e)(1). 4. Then readjudicate whether there is new and material evidence to reopen the Veteran's previously denied claims of entitlement to service connection for: PTSD; lumbar and cervical spine disabilities; bilateral hearing loss; hypertension; a cardiac disability; a skin disability, groin; and residuals, status-post clavus durae, fifth toe, bilateral, in light of the additional evidence. If these claims are not granted to his satisfaction, send the Veteran and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. PARAKKAL 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).