Citation Nr: 1317762 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 10-42 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for hearing loss. 2. Whether new and material evidence has been received to reopen a claim for service connection for a back disability, characterized as lumbar radiculopathy and lumbar osteoarthritis. 3. Entitlement to service connection for osteoporosis. 4. Entitlement to service connection for diabetes. 5. Entitlement to service connection for a right shoulder disability, characterized as right shoulder rotator cuff tendinitis/impingement syndrome. ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from November 1963 to November 1965. He also served with the United States Army Reserves. This matter comes to the Board of Veterans' Affairs (Board) on appeal from rating decisions dated in December 2009 and June 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto, Rico. In the December 2009 dating decision, the RO denied reopening previously denied claims of entitlement to service connection for hearing loss and a back disability, as well as denied claims of entitlement to service connection for osteoporosis and diabetes. In the June 2010 rating decision, the RO denied the claim of entitlement to service connection for a right shoulder disability. In regard to this latter claim, the Board notes that although the RO initially determined that the Veteran had appealed a subsequent rating decision denying entitlement to connection for a right shoulder disability in September 2010, per the Veteran's October 2010 notice of disagreement, and accordingly applied the rules of finality under 38 U.S.C.A. § 7105 (West 2002) and 38 C.F.R. § 3.156 to that denial, the notice of disagreement is also timely with respect to the earlier June 2010 denial. See 38 C.F.R. §§ 20.200, 20.302. Consequently, the earlier decision of June 2010 is the decision on appeal and as such the rules of finality are not for application. The Veteran was informed of this determination in the March 2012 statement of the case. In February 2013, the Veteran's representative, a private attorney, filed a motion with the Board to withdraw as the Veteran's representative before VA for good cause. See 38 C.F.R. § 20.204. The Board granted the motion in February 2013 and informed the Veteran of this by letter dated in March 2013. The Board further informed the Veteran that he had 30 days to elect a new representative and if after 30 days he did not notify the Board that he had elected a new representative, the Board would proceed with his appeal on the assumption that he wishes to represent himself. To date, the Veteran has not notified the Board that he has elected a new representative. Accordingly, the Board will proceed on the assumption that he wishes to represent himself. 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 It should be noted at the outset that the Veteran's claims file is a rebuilt folder and his service treatment records for his period of active duty are unavailable for review. With this said, information associated with the Virtual VA paperless claims processing system indicates that the Veteran is in receipt of Social Security Administration (SSA) disability benefits with an indicated disability onset date of September 1, 2000. VA has a duty to make reasonable efforts to assist claimants in obtaining relevant evidence that the claimant has sufficiently identified. 38 U.S.C.A. § 5103A(b)(c); 38 C.F.R. § 3.159(c). Whenever VA attempts to obtain records from a Federal department or agency, the efforts shall continue until the record are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain the records would be futile. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c). It does not appear in this case that any attempt has been made to obtain the Veteran's SSA records. Thus, unless there is evidence to show that that the SSA disability records are not relevant to the Veteran's claims on appeal, which in this case there is not, the SSA disability records should be sought by the RO/AMC. See Golz v. Shinseki, 530 F. 3d 1317 (Fed. Cir. 2010). See also Graves v. Brown, 8 Vet. App. 522, 524-25 (1996) (holding that, where the VA is on notice of the existence of evidence that might constitute new and material evidence to reopen a claim, the VA should inform the veteran to submit it and assist him, where possible, in obtaining it). Lastly, the evidence shows that the Veteran continues to receive VA outpatient treatment at the San Juan VA medical center (VAMC) and the Euripides Rubio VA outpatient Clinic. Accordingly, a request should be made to obtain all pertinent VA treatment records from September 2010 to present. 38 U.S.C.A. § 5103(c); 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. Copies of updated, pertinent VA treatment records from the San Juan VAMC and the Euripides Rubio VA outpatient Clinic from September 2010 to present should be obtained and added to the claims folder. To the extent records are sought but not obtained, the claims folder should contain documentation of the attempts made. 2. Contact the SSA and obtain and associate with the claims file copies of the Veteran's records regarding SSA benefits, including any SSA administrative decisions (favorable or unfavorable) and the medical records upon which the decisions were based. All records/responses received should be associated with the claims file. 3. When the development requested has been completed, review the case again on the basis of the additional evidence. If the benefits sought are not granted, furnish the Veteran a Supplemental Statement of the Case and afford him a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ CHERYL L. MASON 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).