Citation Nr: 1319463 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-48 775 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to higher ratings for urticaria pigmentosa in excess of 10 percent from May 8, 2008, and 30 percent from April 2, 2009. 2. Whether new and material evidence has been received to reopen a claim for service connection for depression, to include as secondary to service-connected urticaria pigmentosa. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to November 1974. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2008 rating decision in which the RO continued a noncompensable rating for urticaria pigmentosa, effective July 23, 2003, and declined to reopen the Veteran's previously denied claim of entitlement to service connection for depression. (In a June 2009 rating decision, the RO increased the Veteran's urticaria pigmentosa to 10 percent disabling, effective May 8, 2008, and in a March 2010 rating decision, increased that rating to 30 percent disabling, effective April 2, 2009.) In January 2009, the Veteran filed a notice of disagreement (NOD). The RO issued a statement of the case (SOC) in June 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2009. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. For the reasons expressed below, the matters on appeal are being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on her part, is required. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. The record indicates that the Veteran is in receipt of Social Security Disability Insurance (SSDI) benefits, potentially, in part for her nonservice-connected lupus. Treatment records show an overlap in care for the Veteran's lupus and urticaria pigmentosa, such that the SSDI records could be relevant in substantiating the Veteran's claims. Given this possibility, VA has a duty to make reasonable efforts to obtain these records. 38 C.F.R. § 3.159(c)(2); see Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that if there is a reasonable possibility that Social Security records are relevant to a claim, VA is required to assist the claimant in obtaining the identified records). While these matters are on remand, to ensure that all due process requirements are met, and that the record is complete, in addition to seeking the aforementioned SSDI records, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent VA and/or private treatment records,. The RO should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the claims on appeal, notifying her that she has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records. Thereafter, the RO should obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization following the procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. The RO's adjudication the claims should include consideration of all additional evidence added to the claims file since the RO's last adjudication of the claims. Accordingly, these matters are hereby REMANDED for the following action: 1. Obtain from the Social Security Administration a copy of the decision pertinent to the Veteran's claim for Social Security benefits, as well as the medical records relied upon concerning that claim. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain any outstanding, pertinent VA records of evaluation and/or treatment of the Veteran since her discharge from service. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and her representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any pertinent, outstanding private records. Clearly explain to the Veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist her in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matters on appeal in light of all pertinent evidence (to include all that added to the record since the RO's last adjudication) and legal authority. 7. If any benefits sought on appeal remains denied, in whole or in part, furnish to the Veteran and her representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).