Citation Nr: 1317447 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-27 674A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a back disability. ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from June 1956 to June 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which denied entitlement to service connection. The Veteran appealed the denial of service connection on this decision, and the matter is now before the Board. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal which are not already of record. 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 The Veteran is seeking service connection for a back disability which he contends is related to an in-service night-time parachute jump. The Veteran stated that following the injury at issue, he was hospitalized and was on bedrest. Subsequently the Veteran was placed on a physical profile which prevented him from returning to his duties as a parachutist. The Veteran's DD-214 confirms that the Veteran received a Parachutist Badge during service. In developing the Veteran's claim, it has been determined that some of the Veteran's records may have been destroyed in a 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri. When, after continued efforts to obtain Federal records, VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA will provide the claimant with oral or written notice of that fact. Such a notice must identity the records VA was unable to obtain, explain the efforts VA made to obtain the records, describe any further action VA will take regarding the claim, and notify the veteran that he or she is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1) (2012). A review of the claims file reveals that some reconstruction of the file has been undertaken to the extent that the claims file does contain some service treatment records and VA records which predate the 1973 fire. However, the Veteran has not been informed that some files may be missing, and he must be afforded an opportunity to provide alternate sources of evidence to supplement the available service treatment records pursuant to 38 C.F.R. § 3.159(e). In 2009 the Veteran indicated that he had been receiving Social Security Disability payments due to his back injury since 1997. Here, Social Security Administration (SSA) records have not been obtained. Normally VA has a duty to attempt to obtain SSA records when it has actual notice that the Veteran is in receipt of SSA disability benefits. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009), the Federal Circuit determined that VA's duty to assist was limited to obtaining relevant SSA records. The Federal Circuit rejected the argument that SSA records are always relevant and VA always is required to obtain them. Relevant records were defined as "those records that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim." Id. at 1321. The Federal Circuit also stated, "Not all medical records for a Veteran will have a reasonable possibility of aiding in the substantiation of a VA disability claim." Id. The Federal Circuit concluded in Golz, "There must be specific reason to believe these records may give rise to pertinent information to conclude that they are relevant." Id. at 1323. In this case, the identified SSA records deal directly with the claim at hand, and therefore an attempt to acquire such records from SSA must be made. In his initial February 2009 claim, the Veteran also indicated that he had undergone treatment for his back at the Womack Army Hospital at Fort Bragg, North Carolina in 1958. The RO should attempt to seek such records and associate them with the claims file. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran notification that a determination has been made that some of his service treatment records may be unavailable due to fire. Explain the efforts VA had made so far to obtain his records, describe any further action VA will take regarding his claim, and notify the veteran that he is ultimately responsible for providing the evidence. The notification should also ask the Veteran to identify any alternative sources, and whether he has any such documentation in his own possession. 2. Contact the Social Security Administration and attempt to obtain records relating to Social Security Disability benefits provided to the Veteran. If the records do not exist or further attempts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). 3. Take appropriate steps to identify and acquire any treatment records related to the Veteran's back from the Womack Army Hospital at Fort Bragg, North Carolina. All attempts should be documented in the claims file including any negative responses received. Any records obtained should be associated with the claims file. 4. After completing all indicated development, readjudicate the claim for service connection for a back disability in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. 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). _________________________________________________ K. J. ALIBRANDO 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).