Citation Nr: 1312876 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 09-10 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to herbicide exposure. 2. Entitlement to service connection for a rash and skin lesions, to include as due to herbicide exposure. 3. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and D.B. ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION 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). The Veteran served on active duty with the United States Army from March 1962 to May 1965, to include a period of service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied service connection for COPD and a skin disorder, as well as denied entitlement to a TDIU. In February 2013, the Veteran provided testimony before the undersigned Acting Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA system to ensure review of the totality of the evidence. The issues of whether new and material evidence has been submitted to reopen a claim of service connection for posttraumatic stress disorder (PTSD) and entitlement to service connection for an acquired psychiatric disorder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 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 Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claims, and for due process considerations. 38 U.S.C.A. §§ 5103A, 7105; 38 C.F.R. §§ .159, 19.26, 19.29. The record reflects that the Veteran is or was in receipt of Social Security Administration (SSA) benefits. He stated at his hearing that he had applied for disability benefits at some point, but was denied and now receives SSA retirement benefits. Review of the claims file, to include electronic records in Virtual VA, shows that the Veteran has at some point been in receipt of SSA disability or supplemental income benefits, possibly from as early as 1989. Records related to his eligibility for such benefits likely contain information regarding the severity of his conditions, and may also include evidence regarding etiology or dates of onset. The duty to assist requires that VA make all necessary efforts to obtain relevant records in the possession of a Federal agency, such as SSA. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Accordingly, remand is required for attempts to obtain SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2012). Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is required.) 1. Contact the SSA and request copies of all decisions relating to grants, denials, or continuations of entitlement to benefits, to include disability or supplemental income. Copies of evidence considered in reaching such determinations must also be obtained. Efforts to obtain records in the custody of a Federal agency must be fully documented; if records are not available or further efforts would be futile, such must be certified in writing by the custodian of such records. 2. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If any of the benefits sought remain denied, issue an appropriate SSOC and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). 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). _________________________________________________ WILLIAM H. DONNELLY Acting 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).