Citation Nr: 1311482 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 09-17 373 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for compression fracture and degenerative joint disease of the lumbar spine. 2. Entitlement to service connection for an acquired psychiatric disorder, to include depression not otherwise specified, major depressive disorder, and a mood disorder, claimed as secondary to compression fracture and degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Donna D. Ebaugh, Associate Counsel INTRODUCTION The Veteran had active duty from January 1975 to April 1978. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2007 rating decision in which the Winston-Salem, North Carolina RO, inter alia, denied the claims for service connection of a compression fracture and degenerative joint disease of the lumbar spine as well as an acquired psychiatric disorder. In August 2008, the Veteran filed a notice of disagreement (NOD) with the rating decision. In April 2009, the RO issued a statement of the case (SOC), and in May 2009 the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals). While the Veteran specifically identified his psychiatric disability as depression, the Board notes that the Veteran has had other psychiatric diagnoses including depressive disorder not otherwise specified, major depressive disorder (MDD), and rule out mood disorder, as well as a personality disorder. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the United States Court of Appeals for Veterans Claims (Court) found that the Board erred in not considering the scope of a claimant's claim for service connection for a specific psychiatric disability (in that case PTSD) as including any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record (in that case, diagnoses of anxiety disorder and schizoid disorder). Consistent with Clemons and the record, and to give the Veteran every consideration in this appeal, the Board has recharacterized the appeal as encompassing the matter set forth on the title page. In addition to the Veteran's paper claims file, there exists an electronic, paperless (Virtual VA) claims file associated with the Veteran. A review of the Veteran's virtual file contains documents that are either duplicative of those in the paper file, or are not relevant to the claims on appeal. For the reasons expressed below, the claims on appeal are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. The claims file shows that that the Veteran reported that he is receiving "disability benefits" for his lumbar spine disability. See July 2007 VA-contracted spine examination report. Although he did not specify that his disability benefits are from the Social Security Administration (SSA), it is presumed that these are the benefits to which he referred. Therefore, an inquiry should be made with SSA to determine whether he is in receipt of SSA benefits and whether there are outstanding SSA records. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the RO should request from SSA a copy of any determination concerning a claim by the Veteran for disability benefits, as well as copies of all medical records underlying its determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities, and to associate all records and/or responses received with the claims file. As the Veteran has claimed entitlement to service connection for an acquired psychiatric disorder secondary to his lumbar spine disorder, the claim is inextricably intertwined with the lumbar spine claim and must be held in abeyance while further development is accomplished. While these matters are on remand, to ensure that all due process requirements are met, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED for the following actions: 1. Request from SSA a copy of any determination on claim by the Veteran for disability benefits, as well as copies of all medical records underlying its determination. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. If any records sought are not obtained, the RO should notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims for service connection of compression fracture and degenerative joint disease of the lumbar spine and an acquired psychiatric disorder in light of all pertinent evidence and legal authority. 5. If any benefit sought on appeal is denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).