Citation Nr: 1328134 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 12-26 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a kidney disorder, claimed as kidney problems with failure as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from January 1961 to August 1964. He also had an unverified period of inactive Air Force Reserve duty until January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied the claim. The Board notes that the VA Form 9s received in September 2012 are not timely. VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37 (2009). In accordance with the Court's holding in Percy, the Board waives the filing of a timely substantive appeal and finds that it has jurisdiction over this claim. The Veteran requested a Board hearing in the VA Form 9s received in September 2012. That request was subsequently withdrawn in March 2013. 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 Veteran has submitted an undated Notice of Award from the Social Security Administration (SSA), indicating that he became disabled under SSA's rules in April 2002. The medical and legal documents pertaining to the Veteran's application for SSA benefits have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). On remand, efforts should be made to obtain these records. 38 C.F.R. § 3.159(c)(2) (2012). As the claim is being remanded for the foregoing reason, the Board finds that the Veteran should be requested to provide his authorization and consent for the release of records from his private nephrologist, Dr. A.S.M. The RO should also submit another Personnel Information Exchange System (PIES) request to the National Personnel Records Center (NPRC) for the Veteran's personnel records, as it is unclear whether the records referenced in an August 2008 VA Form 3101 as having been mailed were actually received, as all the personnel records located in the claims folder (not inside an envelope, as is customary) appear to have been submitted by the Veteran. If any of the records obtained on remand indicate that the Veteran may have a disease specific to radiation-exposed Veterans, as found at 38 C.F.R. §§ 3.309 (d)(2), or a radiogenic disease as listed under and 3.311 (b)(2), the development outlined in the VA Adjudication Procedures Manual at M21-1MR, IV.ii.1.B.5., must be accomplished. Accordingly, the case is REMANDED for the following action: 1. Submit another PIES request to the NPRC for the Veteran's service personnel records. 2. Make arrangements to obtain the Veteran's authorization and consent for the release of records from his private nephrologist, Dr. A.S.M. 3. Request all medical and legal documents pertaining to the Veteran's application(s) for SSA disability benefits. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 4. If any of the records obtained on remand indicate that the Veteran may have a disease specific to radiation-exposed Veterans, as found at 38 C.F.R. §§ 3.309 (d)(2), or a radiogenic disease as listed under and 3.311 (b)(2), the development outlined in the VA Adjudication Procedures Manual at M21-1MR, IV.ii.1.B.5., must be accomplished. 5. Review the claims folder 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. 6. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant has the right to submit additional evidence and argument on the matter 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 or by the U.S. 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). _________________________________________________ L. M. BARNARD Acting 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).