Citation Nr: 1316675 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 03-31 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a separate compensable rating for left-sided radiculopathy. 2. Entitlement to service connection for a chronic psychiatric disorder, to include bipolar disorder (claimed as atypical depression secondary to service-connected lumbar paravertebral myositis). REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from November 1982 to November 1985. He also served on active duty for training (ACDUTRA) from September 1992 to October 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico (RO) that granted service connection for lumbar paravertebral myositis. The Veteran appealed the initial evaluation assigned for lumbar paravertebral myositis and this matter was adjudicated and decided in a February 2012 Board decision and is no longer on appeal before the Board. The claim for service connection for left-sided radiculopathy is deemed to be part and parcel to the Veteran's appeal of the initial evaluation assigned to lumbar paravertebral myositis and this aspect of the initial evaluation claim remains pending before the Board. Also on appeal is a November 2006 RO decision that determined that new and material evidence had not been submitted to reopen a claim of entitlement to service connection for an acquired psychiatric disorder. In a February 2012 appellate decision, the Board found that new and material evidence had been submitted and reopened the issue of entitlement to service connection for a psychiatric disorder for a de novo review. The claim was remanded, along with the other issue currently before the Board, to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development. Thereafter, the claims of entitlement to a separate compensable rating for left-sided radiculopathy and service connection for a psychiatric disorder (to include as secondary to service-connected lumbar myositis) were, inter alia, denied on the merits in an October 2012 rating decision/supplemental statement of the case and these issues were returned to the Board in November 2012. In a February 2013 appellate decision, the Board, inter alia, again remanded the claims of entitlement to a separate compensable rating for left-sided radiculopathy and service connection for a psychiatric disorder (to include as secondary to service-connected lumbar myositis) for additional evidentiary development, including to provide the Veteran with the appropriate VA compensation examinations to obtain definitive nexus opinions addressing all applicable theories of service connection with respect to these issues. Following this development, the denials of these claims were confirmed in a March 2013 rating decision/supplemental statement of the case. The case was returned to the Board in May 2013 and the Veteran now continues his appeal. For the reasons discussed below in the REMAND portion of this decision, the issue of entitlement to service connection for a psychiatric disorder (to include as secondary to service-connected lumbar myositis) is REMANDED to the RO/AMC, in Washington, D.C. VA will notify the appellant and his representative if further action is required on their part. FINDING OF FACT The Veteran's left-sided radiculopathy is not shown to be associated or etiologically related to his service-connected lumbar paravertebral myositis or permanently worsened beyond its natural progression by his service-connected lumbar paravertebral myositis; and, there is no competent evidence showing that it is etiologically related to his active service. CONCLUSION OF LAW The criteria to assign a separate compensable rating for left-sided radiculopathy have not been met. 38 U.S.C.A. §§ 1111, 1112, 1113, 1131, 1137, 1155 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 4.71, Diagnostic Codes 5235 to 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a separate compensable rating for left-sided radiculopathy. VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the claim for a separate compensable evaluation for left-sided radiculopathy on appeal, as this issue stems from the appeal of a March 2003 rating decision granting the Veteran's original claim of entitlement to service connection for lumbar paravertebral myositis, it is a downstream issue associated with the initial rating assigned for lumbar paravertebral myositis. The Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006) that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated. It has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Thus, any defects in the current appeal of the claim for a separate compensable evaluation for left-sided radiculopathy as an aspect of the initial rating assigned for lumbar paravertebral myositis with regard to the statutorily prescribed notice requirements are deemed to be non-prejudicial to this specific claim. In any case, the claim of entitlement to a separate compensable evaluation for left-sided radiculopathy decided herein is, for all intents and purposes, akin to claim for service connection for this disability, including as secondary to lumbar paravertebral myositis, as the Veteran's basic contention is that the left-sided radiculopathy is related to, and is a symptomatic manifestation of his service-connected lumbar paravertebral myositis. As such, VA has a duty to assist the claimant in obtaining evidence necessary to substantiate this claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The Veteran's claims file includes his service treatment records and relevant post-service VA and private medical records pertinent to his orthopedic and neurological treatment that are current up to 2013 and, if not physically associated with the claims file, are otherwise accessible and viewable on the Virtual VA electronic database. In prior remands dated in February 2012 and February 2013, the Board instructed the RO/AMC to provide the Veteran with VA medical examinations for purposes of obtaining medical nexus opinions. The latter remand of February 2013 determined that the nexus opinions obtained pursuant to the prior February 2012 remand were inadequate and ordered that new examinations to cure the defects of the previous ones. In this regard, the Board observes that VA provided the Veteran with VA examinations in February 2012 and March 2013, from which diagnostic nexus opinions addressing the left-sided radiculopathy claim at issue were obtained. The physicians who conducted these examinations each had the opportunity to review the Veteran's claims file and their nexus opinions addressing the relationship between the Veteran's military service and the claimed disability at issue are supported by an objective rationale based on these clinicians' review of the Veteran's pertinent clinical history. The inadequacies of the February 2012 nexus opinion are rectified by the thorough discussion presented in the March 2013 nexus opinion and these opinions, combined, are collectively valid for adjudicating the matter at issue when considered together. Thus, the Board finds no defect in the aforementioned examinations of record and the nexus opinions obtained therefrom due to the rehabilitative effects of the February 2013 opinion, and they are now deemed to be adequate for purposes of adjudicating the VA compensation claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thusly, in view of the evidentiary development undertaken, the Board concludes that the RO/AMC has substantially complied with the corrective instructions of the February 2013 remand and that an additional remand for further corrective action is unnecessary. Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that there are Social Security Administration (SSA) records that are not presently associated with the claims file and whose unavailability has not been adequately explained in an official capacity by the SSA, notwithstanding multiple queries by VA in 2005 - 2006 about their status and requests that it be provided with copies of these records. However, a careful review of the Veteran's claims file shows that he has not stated, nor does the record reflect, that any records associated with the SSA would be relevant to the specific claim for VA compensation for left-sided radiculopathy. The Board notes that the Veteran's claims file includes an August 2007 letter that he received from the SSA indicating, in pertinent part, that he was found disabled in November 1993 and became eligible for SSA benefits in May 1994 for a psychiatric disorder. No SSA records were apparently provided to the Veteran. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that 38 U.S.C.A. § 5103A did not require VA to obtain all medical records or all SSA disability records, only those that are relevant to the Veteran's claim. The Federal Circuit also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is: as long as a reasonable possibility exists that the records are relevant to the veteran's claim, VA is required to assist the veteran in obtaining the identified records. As the specific claim adjudicated herein involves neurological symptoms (i.e., left-sided radiculopathy), the Veteran's SSA records would be irrelevant to this matter as the SSA expressly identified the Veteran's psychiatric state as the basis for his award of SSA disability benefits. Furthermore, neither the Veteran nor his representative states that these outstanding SSA records are specifically relevant to his claim for VA compensation for left-sided radiculopathy. The Board therefore concludes that the record does not establish a reasonable possibility that the Veteran's SSA records, if there are any, are relevant to the claim for a separate compensable evaluation for left-sided radiculopathy. There is no prejudice to the Veteran by adjudicating his claim for left-sided radiculopathy despite the absence of his SSA records from his claims file. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to assist the claimant in the evidentiary development of the claim decided herein, and thus no additional assistance is required. The claimant has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual background and analysis. Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). The veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is in receipt of a 40 percent disability rating for his service connected for lumbar paravertebral myositis. This rating is based on the functional limitations that he experiences due to the orthopedic manifestations of that disability. The Board's February 2012 decision addressed this aspect of his appeal. However, the Veteran asserts that he also experiences neurological dysfunction (left-sided radiculopathy) as a result of his lumbar paravertebral myositis. During the pendency of this appeal, regulatory changes amended the rating criteria for evaluating disabilities of the spine. See 68 Fed. Reg. 51454-51458 (2003). This amendment was effective on September 26, 2003. Id. The RO addressed the Veteran's claim for increase under both the old criteria in the VA Schedule for Rating Disabilities and the current regulations. There is no prejudice to the Veteran for the Board to apply the regulatory revisions of September 26, 2003 in an appellate adjudication of this appeal. See Bernard v. Brown, 4 Vet. App. 384 (1993). Under Diagnostic Code 5021, myositis, the disease will be rated on limitation of motion of the affected parts, as arthritis degenerative, except gout which will be rated under diagnostic code 5002. 38 C.F.R. § 4.71a, Diagnostic Code 5021. The revised rating criteria provide, in pertinent part, that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Put another way, while it is presented as part of the Veteran's claim for an increased rating for his lumbar paravertebral myositis, the issue of entitlement to a separate compensable evaluation for left-sided radiculopathy is a quasi-service connection claim, in that the Veteran must demonstrate that his left-sided radiculopathy is linked to his lumbar paravertebral myositis. The question of secondary service connection as a result of aggravation must be considered as well. Further, for the sake of being thorough and complete, consideration will also be given as to whether the Veteran's left-sided radiculopathy is directly related to his active service. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). During the pendency of the claim, applicable caselaw permitted the award of VA compensation for aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). This has since been articulated in the regulations in 38 C.F.R. § 3.310(b) (2012), which provides for VA compensation for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability that is not due to the natural progress of the nonservice-connected disability if the baseline level of severity of the nonservice-connected disability is first objectively established. Further, in general, service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2012). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any documentation of treatment for complaints of neuropathic symptoms during active duty will permit service connection for left-sided radiculopathy, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases, such as arthritis of the lumbosacral spine and radiculopathy as an organic disease of the nervous system, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1112, 1113 and 1137; 38 C.F.R. §§ 3.303 , 3.304, 3.307 and 3.309(a). Service connection for lumbosacral arthritis and left-sided radiculopathy may be established based on a legal "presumption" by showing that these each manifested themselves to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307, 3.309(a). As relevant, the Veteran's service treatment records show no treatment for radiculopathic symptoms during active duty. Other than muscular back pain related to his myositis, the clinical evidence contemporaneous with service shows no treatment for, or diagnosis of a chronic disability affecting his spine and discs or the neural distribution within and adjacent to his spine and lower extremities. X-rays of his lumbosacral spine during active duty all show normal radiographic findings. The Veteran was honorably discharged from active duty in November 1985. His post-service medical records, including a December 1985 VA examination, do not show treatment for any complaints relating to left-sided radiculopathy, much less objective clinical signs of left-sided radiculopathy manifested to at least a compensable degree within the one-year period immediately following his separation from active duty. X-ray of his lumbosacral spine were negative for any arthritis or bony pathology. A diagnosis of left-sided radiculopathy is not clinically demonstrated in the record until 2003. As noted earlier, the Veteran is service-connected for lumbar paravertebral myositis. On examination in March 2012, the examining VA physician reviewed the Veteran's relevant clinical history contained in his claims file, examined and diagnosed the Veteran with left-sided lumbar radiculopathy, and presented the following opinion: Paravertebral lumbar myositis is an inflammation of [the] lumbar paravertebral muscles and is not related to a disc condition. It is impossible for a paravertebral lumbar myositis to cause[] a left sided lumbar radiculopathy because it did not involve[] [a] disc condition nor [a] spine condition. It is my opinion that [the] left side lumbar radiculopathy is not caused by or result[ed] from [the] service connected. . . paravertebral lumbar myositis. The Veteran underwent another VA examination in March 2013. The physician who conducted this examination also reviewed the Veteran's relevant clinical history contained in his claims file, examined and diagnosed the Veteran with left-sided lumbar radiculopathy, and presented the following opinion (in pertinent part): The claimed condition [of left-sided radiculopathy] is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected [lumbar paravertebral myositis]. Rationale: Lumbar myositis does not cause radiculopathies since this is muscle inflammation that does not affect spinal nerves or nerve roots. [The Veteran's] radiculopathy most likely had [its] onset. . . in 2003 as [shown] in electronic [medical] records. [The Veteran's] record also shows evidence of [disc] herniation at L4/L5 with foraminal narrowing, mainly in [the] left side[,] which is consistent with actual clinical left sided radiculopathy at [the lumbosacral] area. Pain of the radiculopathy in the [lumbosacral spine] area is not aggravated by his lumbar myositis although they might coexist together. Paravertebral myositis did not [aggravate] beyond its natural [progression] the actual lumbar radiculopathy because they are not pathophysiologically related among each other. Muscles do not cause nerve root[s] to become injured. Nerve roots become affected due to disc herniations or degenerative joint disease causing an impingement in nerve roots. The Board has considered the objective clinical evidence and opinions presented above and finds that they collectively and conclusively demonstrate that the Veteran's left-sided radiculopathy is not directly related to his period of active duty, is not etiologically related to, or otherwise a manifestation of his service-connected lumbar paravertebral myositis, and is not aggravated by his service-connected lumbar paravertebral myositis. The medical evidence clearly shows that the service connected lumbar paravertebral myositis is a muscle-related disability that does not play any contributory role in the development of a neurological disability like the radiculopathy at issue. The radiculopathy itself is more likely the result of nonservice-connected vertebral and disc pathology of the lumbosacral spine irritating the adjacent nerve root distribution. Furthermore, the radiculopathy is not aggravated (i.e., permanently worsened beyond its normal progression) by the service-connected paravertebral lumbar myositis as this is a muscle disability that does not impose any irritation on the nerve roots adjacent to the spine. In view of the foregoing discussion, the Board concludes that there is no medical basis to award a separate compensable evaluation for the Veteran's left-sided radiculopathy. According to the report of a February 2012 VA psychiatric examination, the Veteran has been unemployed since 1992, but that prior to joining the armed services he reportedly had two years of medical school, though he never finished his degree. In service, he served as an anti-aircraft missile crewman. Assuming as true his account of having received two years of medical school training, he nevertheless is not a duly accredited and certified medical professional and is not shown to have ever worked in the capacity of a medical professional. As a lay person for practical purposes, the Veteran is competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, the specific issue in this case (i.e., the diagnosis and etiology of his left-sided radiculopathy as a chronic neurological disability and its relationship to his service-connected lumbar paravertebral myositis) falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Neurological pathologies are not the type of disabling syndromes that are readily amenable to mere lay diagnosis or probative comment regarding their etiologies and relationships to other disabilities, as the evidence shows that neurological testing, medical imaging studies, and other specific findings are needed to properly assess and diagnose these disorders. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). That is, although the Board readily acknowledges that Veteran is competent to report symptoms of back pain and neuropathy, there is no indication that the Veteran is competent to clinically associate his left-sided radiculopathy with his service-connected lumbar paravertebral myositis. Notwithstanding his limited medical training, the Veteran has not been shown to possess the requisite full four years of medical school (with post-medical school training as an intern), nor the clinical expertise or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating musculoskeletal and/or neurological disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, his lay statements and opinions do not constitute competent medical evidence and lack probative value. In view of the foregoing discussion, the Board must deny the Veteran's appeal for a separate compensable evaluation for left-sided radiculopathy as the preponderance of the evidence is against allowing his claim. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to a separate compensable rating for left-sided radiculopathy is denied. REMAND Entitlement to service connection for a chronic psychiatric disorder, to include bipolar disorder (claimed as atypical depression secondary to service-connected lumbar paravertebral myositis). Pursuant to the discussion below, a remand of the issue of entitlement to service connection for a chronic psychiatric disorder (to include as secondary to service-connected lumbar myositis) for additional evidentiary development is warranted before this claim can be adjudicated and decided on the merits. The Veteran reports that he is in receipt of SSA disability benefits for a chronic psychiatric disability. His claims file includes VA correspondence to the SSA, dated from 2005 to 2006, which reflects that VA had submitted several requests to the SSA for copies of the medical records considered by SSA in its adjudication of the Veteran's SSA disability claim. The file indicates that SSA never provided an official response to these requests for information, nor did SSA otherwise report that the requested medical records were destroyed, or provide an explanation as to why they were unavailable. Rather, the SSA NRC advised the RO in September 2006 that it did not have a "folder" pertaining to the Veteran, and that the RO should direct its records request to the SSA OCO ODO Special Workgroup. The RO apparently followed that lead and, in October 1996, the SSA OCO ODO reported that it was unable to locate the Veteran's medical records, and that it should resubmit its request in 60-days. There is no indication that the RO resubmitted its request. Then, on his own initiative, the Veteran directly contacted the SSA and requested copies of his medical records. His claims file includes a copy of the SSA's written response to the Veteran's query, dated in August 2007, in which SSA presented the following statement: [The Veteran] was found disabled on 11/29/1993 became eligible for benefits on 05/1994. His primary diagnosis was mental condition (affective disorders) The SSA, however, did not provide the Veteran with any copies of the medical records it considered in its adjudication of his disability claim, nor did it provide any official commentary or explanation as to their availability or unavailability. In Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010), the Federal Circuit noted that 38 U.S.C.A. § 5103A does not require VA to obtain all medical records or all SSA disability records, but only those that are relevant to the claim for VA benefits. The Federal Circuit also stated that VA was not required to obtain records in every case in order to rule out their relevance. Rather, the standard is that as long as a reasonable possibility exists that the records are relevant to the claim, VA is required to assist the claimant in obtaining the identified records. Id. At present, given the fact that the SSA determined that the Veteran was entitled to SSA disability benefits on the basis of impairment due to a chronic psychiatric disorder within eight years after his separation from active duty, there is at the very least a reasonable possibility that these outstanding SSA records are relevant to the Veteran's pending claim of entitlement to VA compensation for a chronic psychiatric disorder, as they may contain clinical discussion that objectively associates his Axis I diagnosis to military service or to a service-connected disability. However, the Board cannot presently make any such determination as to their relevance as these records are not associated with the evidence or otherwise viewable on the Virtual VA electronic records database. A remand for these records for their inclusion in the evidence is thusly warranted. At the very least, VA should obtain a reply from SSA regarding the availability or unavailability of the medical records considered by SSA in connection with the Veteran's claim for SSA disability benefits and, if they are unavailable, an official explanation as to why this is so. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). See also Murincsak v. Derwinski, 2 Vet. App. 363, 371 (1992); Clarkson v. Brown, 4 Vet. App. 565 (1993); Baker v. Brown, 11 Vet. App. 163 (1998): VA's duty to assist includes a duty to obtain SSA records, whether the issue involves service connection or increased ratings. The Veteran's VA medical records (including those relating to his psychiatric treatment) are now current up to March 2013, and are viewable on Virtual VA. However, to ensure that all relevant records are associated with the file prior to adjudication of the claim, VA should take this opportunity to request that the Veteran identify all sources of psychiatric treatment - both VA and private - and then attempt to obtain all such records that are not presently associated with the evidence. Accordingly, the issue of entitlement to service connection for a chronic psychiatric disorder (to include as secondary to service-connected lumbar paravertebral myositis) is REMANDED to the RO/AMC for the following action: 1. After contacting the Veteran and inquiring about all sources of his psychiatric treatment (both private and VA) and obtaining the appropriate waivers, the RO/AMC should attempt to obtain copies of updated VA and private medical records pertinent to the Veteran's psychiatric treatment, which have not yet been associated with the evidence. All records obtained must be associated with his claims folder. If the RO cannot obtain records identified as relevant by the Veteran, a notation to that effect should be included in the file. The Veteran is to be notified of unsuccessful efforts in this regard. 2. The RO/AMC should contact the SSA and request to be provided with copies of the Veteran's medical records in the SSA's possession pertaining to his claim for SSA disability benefits. Copies of all documented attempts by VA to obtain these outstanding SSA medical records and SSA's responses to these queries must be associated with the Veteran's claims file. If no such records are available, the SSA should provide to VA a written response presenting the official reason/reasons why these records are unavailable. 3. Following completion of the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claim of entitlement to service connection for a chronic psychiatric disorder (to include bipolar disorder claimed as atypical depression secondary to service-connected lumbar paravertebral myositis) should be adjudicated on the merits following review of all relevant evidence associated with the claims file. If the maximum benefit remains denied with respect to this issue on appeal, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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). ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs