Citation Nr: 1325737	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  06-03 443	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Pittsburgh, Pennsylvania



THE ISSUES

1.  Entitlement to service connection for a claimed hernia disorder.

2.  Entitlement to service connection for a claimed low back disorder.



REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney at Law



ATTORNEY FOR THE BOARD

Paul S. Rubin, Counsel



INTRODUCTION

The Veteran had active service in the U.S. Navy from June 30, 1959 to July 20, 1959.  Prior to that, he served in the Navy Reserve from February 1959 to June 1959.  

The issues on appeal initially came to the Board of Veterans' Appeals (Board) from a March 2005 rating decision issued by the RO.

In a February 2008 decision, the Board denied both service connection claims at issue.  However, the Veteran appealed the Board's decision to deny the service connection issues to the United States Court of Appeals for Veterans Claims (Court).  
  
Pursuant to an August 2009 Court Order and Joint Motion to Vacate and Remand, the Court vacated the decision as to both service connection issues and remanded these matters for compliance with specific instructions.  

Specifically, the Joint Motion directed the Board to comply with VA's duty to assist by considering whether a remand is appropriate to obtain a VA examination and opinion to determine the likely etiology of any current hernia or low back disorder, on the basis of in-service incurrence.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  

Upon return of the case to the Board, in December 2009, the Board remanded both service connection issues to the RO for additional development, to include securing a VA examination and opinion.  After completion of this development by the RO, the case was returned to the Board for the purpose of appellate disposition.  

In April 2013, the Board complied with the Veteran's Privacy Act request by providing him a copy of the claims folder.  In addition, in a May 2013 letter, the Board allowed an additional 60-day period for the Veteran's attorney to submit additional evidence.  However, after 60 days, no additional evidence was forthcoming. 

The issue of a total disability rating based on individual unemployability (TDIU) by reason of service-connected disability been raised by the record, but has not been adjudicated by the RO.  See June 2011 attorney letter.  

Therefore, the Board does not have jurisdiction, this matter is referred to the RO for appropriate action.  

A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal.

The issue of service connection for a low back disorder is being remanded to the RO in Pittsburgh, Pennsylvania.  VA will notify the Veteran if further action is required on his part.



FINDING OF FACT

There is no probative evidence the Veteran has a current hernia disability or surgical residuals thereof that are due to an event or incident of his period of service.  



CONCLUSION OF LAW

The Veteran does not have current hernia disability due to a disease or injury that was incurred in or aggravated by his service.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duty to Notify and Assist

For the hernia service connection issue being denied, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in December 2004, March 2006, September 2006, January 2010, February 2010, October 2010, February 2011, March 2011, and August 2012.  

Those letters effectively satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing him about the information and evidence not of record that was necessary to substantiate the service connection issues; (2) informing him about the information and evidence the VA would seek to provide; (3) informing him about the information and evidence he was expected to provide.  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 

In addition, the March 2006 and September 2006 VCAA letters from the RO further advised the Veteran of the elements of a disability rating and an effective date, which are assigned when service connection is awarded.  Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).

With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim.  Pelegrini II, 18 Vet. App. at 120 (2004).  In the present case, the Board sees the RO did not provide the Veteran with all VCAA notice prior to the March 2005 adverse determination on appeal.  But in Pelegrini II, the Court also clarified that in these situations VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made.  Id.  Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process.  In other words, he must be given an opportunity to participate effectively in the processing of his claims.  

The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has further held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC.  Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV).  

In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by readjudication, to include a SOC or SSOC.  See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

In the instant case, the timing error was cured.  After providing additional VCAA notice on multiple occasions, the RO readjudicated the hernia claim in SSOCs, to include the most recent September 2012 SSOC.  

Thus, the timing defect in the notice has been rectified.  Prickett, 20 Vet. App. at 376; see also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).  

With respect to the duty to assist, the RO has secured the Veteran's service treatment records (STRs), VA outpatient treatment records, VA examinations, and private treatment records identified by the Veteran.  For his part, the Veteran has submitted personal statements, lay statements from family and friends, private medical evidence, and attorney argument.  

VA's duty to assist includes obtaining records of relevant VA medical treatment identified by the Veteran.  VA must continue to obtain such records unless it is documented that the records do not exist or that further efforts would be futile.  38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3).  See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive knowledge of evidence generated by VA).  

In the present case, the Veteran has stated that he was treated by VA for his hernia condition and underwent surgery at the VA Medical Center (VAMC) (Oakland VAMC) in Pittsburgh, Pennsylvania sometime in the 1970s.  He has not always been consistent in narrowing down the precise timeframe of this reported treatment.  See July 2004 claim; August 2004 and January 2010 Veteran statements; April 2008 Motion for Reconsideration; October 2010 Report of Contact; February 2011 VA hernia examination.  The RO was not able to secure these records, despite multiple attempts.  

In any event, there is no further basis to secure these alleged records, as negative responses were received by the VAMCs in Pittsburgh, Pennsylvania and Clarksburg, West Virginia in March 2010, February 2011, and March 2011.  

In fact, the RO's military records specialist issued an August 2012 Formal Finding of Unavailability for these records indicating that all efforts to secure these records have been exhausted and further attempts would be futile.  It was noted that an "exhaustive search" did not uncover these records.  

Therefore, the Board concludes that further attempts would serve no purpose at this juncture.  Moreover, the Board is accepting the Veteran's report as credible that he underwent a bilateral herniorrhaphy and received treatment for his hernia sometime in the 1970s at a VAMC in Pittsburgh.  

Therefore, any VA medical records from the 1970s not currently secured could not alter the ultimate disposition of the hernia appeal, as the Board has acknowledged that this VA treatment and surgery for hernia did occur.  Regardless, the hernia appeal is being denied due to a lack of probative evidence regarding the existence of a current hernia disability or surgical residuals thereof.  

VA is not required to search for evidence which, even if obtained, would make no difference in the result.  Allday v. Brown, 7 Vet. App. 517, 526 (1995) (quoting Colvin v. Derwinski, 1 Vet. App. 171 (1991).  

With regard to STRs, on multiple occasions, the Veteran has alleged in-service treatment for a hernia injury ("pinching" in the lower abdominal region) after heavy lifting.  Specifically, he reports being treated with medication for the hernia injury at the sick bay at the Navy training center in Great Lakes, Illinois, in July 1959 during active duty.  See July 2004 claim;  April 2005 NOD;  August 2004 Veteran's statement; April 2008 Motion for Reconsideration.  These in-service sick bay records, if they exist, are not present in the claims folder. 

When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed."  Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996).  See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  

In the instant case, the National Personnel Records Center (NPRC) secured STRs for the Veteran, but was not able to secure any of the particular in-service treatment records identified by the Veteran, dated in July 1959.  

In any event, to the extent that STRs may be missing, in this decision, since the Board is accepting the Veteran's lay statements as competent and credible that he sustained and was treated for a hernia injury in July 1959 during service, there is no prejudice to the Veteran.  Moreover, once again, the hernia appeal is being denied due to a lack of probative evidence regarding the existence of a current hernia disability or surgical residuals thereof, not a lack of in-service incurrence.  

Finally, according to VA treatment notes dated in June 2004 and August 2004, the Veteran indicated he is receiving Social Security Administration (SSA) disability benefits since 1997 for his low back problems due to a 1991 post-service work-related injury.  

These SSA disability records are not present in the claims folder.  VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  VA's duty to assist includes the responsibility to obtain any "relevant" records from the SSA.  38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2).  Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996).  VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile.  38 C.F.R. § 3.159(c)(2).  However, in the present case, there is no evidence or allegation that the Veteran is receiving SSA disability benefits due to a hernia condition or residuals thereof.  

In this respect, the Federal Circuit recently held that under the duty to assist provisions of 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c), VA is only required to obtain disability records from SSA if VA determines, without review of the actual records, that there is a reasonable possibility that such records are "relevant" to the Veteran's claim for VA disability compensation.  Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010).  

The Federal Circuit added that "relevant" records for the purpose of section 5103A are 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 in Golz noted that the VA need not obtain SSA records in every case in order to rule out their relevance.  Id. at 1323.  The Federal Circuit's reasoning in Golz is controlling here.  

In the present case, any SSA records pertaining to his low back could not alter the ultimate disposition of the hernia claim being denied.  Also, any SSA records dated before 1997 would not be probative as to the existence of a current hernia disability or surgical residuals thereof.  In essence, further efforts to obtain these SSA records are clearly not warranted, as they would provide no reasonable possibility of substantiating the hernia claim on appeal.  38 U.S.C.A. § 5103A(a)(2).  

Finally, the RO also substantially complied with the Board's December 2009 remand directives.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required).  

Specifically, pursuant to the remand, the Veteran was afforded a February 2011 VA hernia examination with a medical opinion addressing the etiology of any current hernia disorder.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  This VA examination and opinion was thorough, supported by explanation, based on a review of the claims folder, and supported by the other clinical evidence of record.  The RO has substantially complied with the Board's remand instructions.  

In summary, the duty to assist has been met.  38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). 


Governing Laws and Regulations for Service Connection

A Veteran is entitled to compensation from the VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty."  38 U.S.C.A. § 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. §§ 3.303, 3.306.  

Under 38 C.F.R. § 3.303(a), service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  See also 38 C.F.R. § 3.303(a).  The Federal Circuit Court recently held that diseases that would be considered "chronic" in a medical sense, but which are not listed in 38 C.F.R. § 3.309(a) as an enumerated "chronic disease," may still qualify for service connection under the three-element test for disability compensation described in § 3.303(a).  Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013).

In the absence of proof of a current disability, there can be no valid claim.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  

Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a)(2).  

In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994).  

The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316.  See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

In short, when considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent on the issues of diagnosis and medical causation.  Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011).   

In determining whether service connection is warranted based on in-service incurrence, the Board shall consider the benefit-of-the-doubt doctrine.  38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 


Analysis - Service Connection for Hernia

The Veteran asserts that he sustained an in-service hernia injury ("pinching" in the lower abdominal region) after heavy lifting.  Specifically, he reports being treated with medication for the hernia injury at the sick bay at the Navy training center in Great Lakes, Illinois, in July 1959 during active duty.  He asserts having had continuous symptoms since that time.  See also February 2005 lay statements from friends and family.  

Post-service, the Veteran has stated that he was treated by VA for his hernia condition and underwent surgery at the Oakland VAMC in Pittsburgh, Pennsylvania sometime in the 1970s.  He also alleges further inguinal hernia treatment and procedures in the 1980s.  He has not always been consistent in narrowing down the precise timeframe of his treatment.  See July 2004 claim; April 2005 NOD; August 2004 and January 2010 Veteran statements; April 2008 Motion for Reconsideration; October 2010 Report of Contact; June 2004 VA primary care visit note; February 2011 VA hernia examination.

Upon review of the evidence of record, the Board finds that the Veteran is not entitled to service connection for a hernia disorder.  

The facts in the present case require the Board to address the issue of what constitutes a "disability" under VA law.  The existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997).  In the absence of proof of a present disability due to disease or injury, there can be no valid claim.  Brammer, 3 Vet. App. at 225.   A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect."  38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities").  

With regard to the term "disability," the Federal Circuit has also noted that two provisions of 38 C.F.R. Part 4, 38 C.F.R. §§ 4.40 and 4.45, refer to pain in connection with the assessment of the extent to which a Veteran may be disabled, and, thus, pain is not wholly irrelevant to the assessment of a disability for which a Veteran seeks compensation.  See Sanchez- Benitez v. Principi, 259 F.3d 1356, 1361 (2001).  However, the Federal Circuit also noted that in order for a Veteran to qualify for basic entitlement to compensation under 38 U.S.C.A. § 1110  or § 1131, the Veteran must prove existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty.  Id.  Hence, the mere fact of a Veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he has met the current disability due to disease or injury requirement.  Rather, an underlying disease or injury is required, with current impairment of some sort. 

As noted, the Board is accepting the Veteran's lay statements as competent and credible that he sustained and was treated for a hernia injury in July 1959 during service.  In addition, the Board is accepting Veteran's report as credible that he underwent a bilateral herniorrhaphy and received treatment for his hernia sometime in the 1970s at a VAMC and had further symptoms or treatment in the 1980s.  

Nevertheless, the crucial question now is whether the Veteran is shown to have a current hernia disability or identifiable residuals of his hernia surgery that can be linked to his brief period of service.  

In the present case, as there is no probative evidence of current hernia disability due to the in-service injury, service connection cannot be granted.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303; Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. 

Specifically, upon objective examination, the November 2011 VA hernia examiner remarked there was no hernia noted anywhere during the Veteran's clinical examination.  There was also no evidence of residual surgical scars from the reported Veteran's hernia surgery at the VAMC in the 1970s.  They were possibly too old to identify and might have faded away.  The VA examiner added there was no current evidence of herniation or hernia scars of the inguinal area.  The VA examiner also observed no bulging, tenderness, or pain.  The VA examiner concluded there was no clinical evidence to support a hernia diagnosis.  

In addition, the VA treatment records and private treatment records in the claims folder dated from 2000 to 2009 are also devoid of any clinical evidence of a current hernia-related disability.  All of these findings provide strong evidence against the existence of any current hernia disability.  

The Board acknowledges that the Veteran as a lay person is competent to report or discuss any symptoms or treatment for an alleged current hernia disorder.  See 38 C.F.R. § 3.159(a)(2); Barr, 21 Vet. App. at 307-09.  However, his lay assertions are not as probative or reliable in identifying the existence of a current disability in light of the clear findings of the November 2011 VA hernia examiner and the lack of probative evidence contained in VA treatment records and private treatment records dated from 2000 to 2009.  

These medical findings outweigh the Veteran's lay assertions in this case.  It is puzzling that the Veteran did not report specific symptoms to medical practitioners for his alleged hernia in VA treatment records and private treatment records dated from 2000 to 2009.  He reported low back problems and his past history of hernia, but not current hernia problems.   

The conclusion of the Brammer case is instructive here.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "simply because[the veteran] had a disease or injury while on active service" was insufficient to obtain benefits "[i]n the absence of proof of a present disability").  

In the Brammer case, neither for the claim concerning spinal meningitis nor for the "new" claim concerning frozen feet had the claimant produced any evidence, medical or otherwise, that would tend to show a presently existing disability stemming from either in-service spinal meningitis or frozen feet.  

The claimant in that case was apparently of the belief that he was entitled to some sort of benefit simply because he had a disease or injury while on active service.  That belief was mistaken.  Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  In the absence of proof of a present disability, there can be no valid claim.  Id.  

For purposes of establishing service connection, a "current disability" includes a disability which existed at the time a claim for VA disability compensation is filed or during the pendency of the claim, even if that disability subsequently resolves.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  

More recently, the Court clarified that, when the record contained evidence of a disability prior to a Veteran filing a claim for that disability, the evidence of disability is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.  See Romanowsky v. Shinseki, No. 11-3272 (Vet. App. July 10, 2013) (considering the application of McClain on a diagnosis predating the filing of a claim).  

The Court in Romanowsky added that a determination that a diagnosis was "sufficiently proximate to the filing of a claim so as to constitute evidence of a 'current diagnosis' was a factual finding to be made by the Board in the first instance."  Id.  

In the present case, the Board has conceded earlier surgery and treatment for hernia in the 1970s and 1980s.  But the Veteran filed his service connection claim for hernia much later in time in 2004.  Even if the Veteran, for the sake of argument, exhibited any hernia symptoms in the mid-1990s, the Board concludes that such earlier treatment and symptoms for hernia were not sufficiently proximate to the filing of the 2004 claim so as to constitute evidence of a current disability.  

Once again, the existence of a current disability is the cornerstone of a claim for VA disability compensation.  38 U.S.C.A. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328 (1997).  Absent probative or reliable evidence of a current hernia or surgical residuals thereof, service connection cannot be granted in the present case.  Boyer, 210 F.3d at 1353; Brammer, 3 Vet. App. at 225. 

Accordingly, the preponderance of the evidence is against the claim of service connection for a hernia disorder, so there is no reasonable doubt to resolve in the Veteran's favor.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for a claimed hernia disorder is denied.  


REMAND

However, before addressing the merits of the low back disorder claim, the Board finds that additional development of the evidence is required.

First, according to various VA treatment notes dated in June 2004 and August 2004, the Veteran indicated he was receiving SSA disability benefits since 1997 for his low back problems due to a 1991 post-service work-related injury.  

These SSA disability records are not present in the claims folder.  They must be obtained before deciding the appeal since these records likely specifically concern the particular low back condition at issue.  38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2).  

VA has a duty to make reasonable efforts to assist a claimant to obtain evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a)(1); 38 C.F.R. § 3.159(c).  Although disability determinations by SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits and VA has a duty to assist the Veteran in gathering these records.  Voerth v. West, 13 Vet. App. 117, 121 (1999); Hayes v. Brown, 9 Vet. App. 67, 74 (1996).  VA must make as many requests as necessary to obtain "relevant" SSA records, unless a determination is made that the records do not exist or that further efforts would be futile.  38 C.F.R. § 3.159(c)(2).  Thus, a remand is warranted to obtain these SSA records.  

Second, complete VA treatment records on file only date to November 2009.  Since the Board is already remanding the low back claim for SSA disability records, if the Veteran has since received additional relevant VA treatment for the low back, these records should be obtained.  

VA's duty to assist includes obtaining records of relevant VA medical treatment.  38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3).  See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA).  

Third, at the November 2011 VA low back examination, the Veteran stated that he recently underwent low back surgery at West Virginia University in November 2010.  These records are not present in the claims folder.  

In this regard, VA is required to make reasonable efforts to obtain all "relevant" records, including private records like these, which the Veteran adequately identifies and authorizes VA to obtain.  38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1).  VA regulation clarifies that "reasonable efforts" will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request.  38 C.F.R. § 3.159(c)(1).  

Therefore, since the low back claim is already being remanded on other bases, contact the Veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain any private surgery records for his low back from West Virginia University dated in November 2010.

Accordingly, this remaining matter is REMANDED for the following action:

1.  The RO must take all indicated action to contact the Veteran and ask that he complete and return the necessary authorization (VA Form 21-4142) for VA to obtain any outstanding private surgery records from West Virginia University dated in November 2010 for his low back disability.  See November 2011 VA low back examination.  The Veteran must adequately identify this private surgical provider.  He should be asked to provide the full names of the providers who treated him, the specific dates of treatment, and any address or telephone information.  The Veteran is also asked to provide the records himself if he has them in his possession.  If the Veteran provides a completed release form authorizing VA to obtain these confidential treatment records, then attempt to obtain them.  If no records are available, documentation to that effect is required and should be associated with the file.

2.  The RO should take all indicated action to secure from SSA all records associated with the Veteran's low back disability claim(s).  The Veteran has indicated he is receiving SSA disability benefits since 1997 for his low back problems due to a 1991 post-service work-related injury.  Request copies of the SSA disability determination and all medical records considered.  If no records are available or do not exist, a response to that effect must be documented and the Veteran must be notified.

3.  The RO should take all indicated action to obtain copies of all records of relevant VA medical treatment dated after November 2009, including records from the VAMC in Clarksburg, West Virginia.  All attempts to secure these records, and any response received, must be documented in the claims file.  If no records are available, a response to that effect is required and should be documented in the file.

4.  The RO then must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action is to be implemented.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

5.  After completing all indicated development, the RO should readjudicate the low back service connection claim on appeal, in light of all the evidence of record.  If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to the Veteran and his attorney and they should be afforded a reasonable opportunity for response. 

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

No action is required of the Veteran until he is otherwise notified by the RO.  By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case.

The Veteran 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).

These claims 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).



______________________________________________
STEPHEN L. WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals

Department of Veterans Affairs