Citation Nr: 1311604	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  07-16 442	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for a cervical spine disability to include a cervical sprain and degenerative disc disease (DDD).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel

INTRODUCTION

The Veteran served on active duty from April 1969 to December 1971. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which, in pertinent part, denied entitlement to service connection for arthralgia of the cervical spine and a stomach condition.

In August 2008, the Veteran provided testimony at a videoconference hearing before the undersigned.  A transcript of this hearing is of record and has been reviewed.

In August 2011, the Board remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC.  The AMC granted the stomach-related claim, continued to deny the cervical spine claim, and returned the case to the Board for further appellate review.

In a September 2012 rating decision, the AMC awarded service connection for a gastric ulcer and assigned an initial 20 percent rating, effective in February 2005.  There is no indication in the Virtual or paper claims file that the Veteran appealed either the initial rating or effective date.  Thus, that issue is not before the Board and will not be addressed in the remand action below.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2012).  The Board notes the Veteran's representative addressed the initial rating in the February 2013 Appellate Brief, probably due to the erroneous manner in which the AMC discussed the award in the September 2012 Supplemental Statement of the Case (SSOC), which was as if it was a claim for an increased rating for a previously service-connected disorder.

The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process.  The Board has reviewed the contents of the paperless file, and there are currently no pertinent records that are not also in the paper claims file.  Nonetheless, any further development or adjudication of this matter should take into account this paperless claims file.


REMAND

In its most recent remand, the Board sought to obtain all records from the Social Security Administration (SSA) pertaining to the Veteran's claim for disability benefits.  See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) ("[T]he decision of the administrative law judge at the SSA 'is evidence which cannot be ignored and to the extent its conclusions are not accepted, reasons or bases should be given therefor.'" (quoting Collier v. Derwinski, 1 Vet. App. 413, 417 (1991))).

In accordance with Court precedent, the Board instructed that the agency of original jurisdiction should obtain "all decisions and medical records associated with the Veteran's application or award of SSA benefits."

In August 2011, the AMC asked SSA for its determination on the Veteran's claim for disability benefits as well as copies of medical records underlying that determination.  In a response received later that month, SSA responded that it could not send medical records, because the medical records had been destroyed.  There was no response to the request for the SSA decision.

VA has a duty to continue efforts to obtain records from a Federal agency until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile.  Pub.L. 112-154, Title V, § 505(a), (b), Aug. 6, 2012, 126 Stat. 1192.) (to be codified at 38 U.S.C.A. § 5103A(c)(2) (formerly 38 U.S.C.A. § 5103A(b)(3)).

Because SSA has not responded to the request for the SSA decision, it is not reasonably certain that the record does not exist or that further efforts would be futile.

Accordingly, this case is REMANDED for the following:

1.  Obtain any SSA decisions with regard to the Veteran's claim for SSA disability benefits.  Efforts to obtain this evidence must continue until it is obtained, unless it is reasonably certain that it does not exist or that further efforts would be futile.

If any requested records cannot be obtained, advise the Veteran and tell him of the efforts made to obtain the records and any additional actions that will be taken with regard to his claim.

2.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case, before the claim is returned to the Board, if otherwise in order.

The Veteran and his representative have the right to submit additional evidence and argument on the matters 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 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).

____________________________________________
Mark D. Hindin
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).


Department of Veterans Affairs