Citation Nr: 1327849 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 11-01 370 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable evaluation for status post left upper lobectomy for lung cancer. ATTORNEY FOR THE BOARD Antoinette Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from September 1969 to August 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision by the St. Petersburg, Florida, Regional office (RO) of the Department of Veterans Affairs (VA), which granted service connection and assigned a non-compensable (0 percent) rating to the Veteran's service connected residuals of lung cancer associated with herbicide exposure, status post-lobectomy. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper files or are irrelevant to the issue on appeal. The issues of entitlement to service connection for chronic obstructive pulmonary disease (COPD) has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See prior Board remand of June 2011. Therefore, the Board does not have jurisdiction over the issue, and it is referred to the AOJ for appropriate action. 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 Board first notes that information from the Social Security Administration (SSA) indicates that the Veteran applied for disability benefits. It does not appear, however, that the RO attempted to obtain the administrative decision and the records upon which SSA relied in reaching its decision. The Court of Appeals for Veterans Claims has held that VA's duty to assist encompasses obtaining medical records that supported an SSA award of disability benefits as they may contain information relevant to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992); see also 38 U.S.C.A. § 5103A(c)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2011); Diorio v. Nicholson, 20 Vet. App. 193, 199-200 (2006); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Those records should be requested, and associated with the Veteran's claims file. The Board also notes that the prior remand of June 2011 included the following: The Board finds that the examiner's findings raise a claim for service connection for COPD as secondary to the service-connected residuals of lung cancer, status post-lobectomy, and that the claims are inextricably intertwined, as the resolution of the claim for service connection might have bearing upon the claim currently on appeal. Accordingly, the claim for an increased rating should be considered after a decision is rendered on the service connection claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on a claim for a second issue). The RO has not yet adjudicated the COPD issue. As the Veteran receives health care through VA, any additional VA treatment records dating from January 2011 should also be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records pertaining to the Veteran that date from January 2011. 2. Request, directly from the SSA, complete copies of any adjudication or readjudication on a claim for disability benefits from that agency as well as the records, including medical records, considered in adjudicating the claim. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After conducting any additional development that is deemed warranted, readjudicate the claim. If the benefit sought remains denied, issue a supplemental statement of the case to the Veteran and provide an opportunity to respond before the case is returned to the Board. [NOTE: THE BOARD DETERMINED IN A PRIOR REMAND THAT THE ISSUE ON APPEAL IS INEXTRICABLY INTERTWINED WITH THE ISSUE REFERRED TO THE RO IN THE INTRODUCTION, NAMELY ENTITLEMENT TO SERVICE CONNECTION FOR COPD.] 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). _________________________________________________ S. S. Toth 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).