Citation Nr: 1321640	
Decision Date: 07/05/13    Archive Date: 07/12/13

DOCKET NO.  07-15 892	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to service connection for a left lung disorder, claimed as a left lung lesion.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel






INTRODUCTION

The Veteran served on active duty from July 1966 to July 1974.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.

In his VA Form 9, Appeal to the Board of Veterans' Appeals, received in May 2007, the Veteran indicated that he wanted to have a hearing before the Board at the RO.  The Veteran was scheduled for a travel board hearing in September 2009.  However, he failed to report for the scheduled hearing.  The Board finds that there is no Board hearing request pending at this time.  38 C.F.R. § 20.702(d) (2012).  

The Board remanded this case in June 2010 and August 2012 for further development.  The case has been returned to the Board.  

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 Virtual VA paperless claims processing system reflects that additional evidence has been added to the appeal since the last supplemental statement of the case (SSOC) dated April 2013.  This evidence includes notification that the Veteran is receiving benefits from the Social Security Administration (SSA).  The evidence does not contain a waiver of RO jurisdiction with regard to this evidence, and on remand, all evidence received since the April 2013 SSOC must be considered.  See 38 C.F.R. §§ 19.37, 20.1304 (2012).

The SSA records are not included within the claims file.  Where VA has notice that the Veteran is receiving disability benefits from the SSA, and that records from that agency may be relevant, VA has a duty to acquire a copy of the decision granting Social Security disability benefits, and the supporting medical documents on which the decision was based.  See Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992). VA must obtain only those that are relevant to the Veteran's claim. However, the basis of the Veteran's award of SSA disability benefits is unclear from the current record and a remand is necessary to obtain the records. 38 C.F.R. § 3.159(c)(2).  

In a December 2012 VA examination report, the examiner stated that the Veteran's current lung disorder, namely chronic obstructive pulmonary disease (COPD), was diagnosed in 2005.  The VA examiner also references results from pulmonary function testing conducted in 2005.  However, the claims file does not contain treatment records containing this information, and it appears that no attempt has been made to obtain these records.  Since VA has notice of outstanding treatment records that are potentially relevant to the claim on appeal, VA has a duty to obtain those records.  38 U.S.C.A. § 5103A(c) (West Supp. 2012); 38 C.F.R. § 3.159(c) (2012). 

This matter is REMANDED for the following actions:

1.  Obtain from the SSA a copy of its decision(s) awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination.  In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the claims file.  

2.  Contact the Veteran and request that he identify all VA and non-VA health care providers that have treated him for his left lung disorder that have not been previously obtained.  The aid of the Veteran in securing these records, to include providing necessary authorizations, should be enlisted, as needed.  If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the Veteran should be informed in writing.  Regardless of whether or not the Veteran responds, obtain his complete VA treatment records.

3.  Thereafter, the issue on appeal should be readjudicated.  If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto.  

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).



_________________________________________________
Vito Clementi
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).