Citation Nr: 1329188 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 08-23 082A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for left inguinal hernia. 2. Entitlement to service connection for traumatic arthritis. 3. Entitlement to service connection for fibromyalgia. 4. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder. 5. Entitlement to service connection for migraine headaches due to head trauma. 6. Entitlement to compensation under 38 U.S.C.A. § 1151 for heart attack, stroke, and Brown's tumor. 7. Entitlement to an evaluation in excess of 20 percent disabling for thoracic strain with degenerative changes. 8. Entitlement to an effective date prior to March 18, 2008, for the grant of an evaluation of 20 percent disabling for thoracic strain with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant's representative ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to September 1988. The Veteran had additional service in the Air National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran was scheduled to testify before the undersigned Veterans Law Judge in March 2012. The Veteran's representative presented argument on his behalf. A transcript of the hearing is associated with the claims file. 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 Review of the claims file reveals that the Veteran receives consistent treatment from VA; however, treatment records dated subsequent to August 2008 have not been obtained and associated with the claims file. The Veteran has identified treatment from Antelope Valley Spinal Care; however, review of the claims file does not reveal that the treatment records have been associated. The Veteran reports that he underwent an examination in June 2005. Review of the claims file does not reveal that this examination report has been associated with the claims file. In addition, the Veteran has indicated that he received treatment from Kaiser Occupational Health. However, records regarding this treatment have not been associated with the claims file. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(c)(1) (2012). VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Bell v. Derwinski, 2 Vet. App. 611 (1992). As such, attempts must be made to obtain and associate with the claims file all VA treatment records regarding the Veteran dated since August 2008. In addition, after obtaining any necessary authorization, attempt to obtain and associate with the claims file records of the Veteran's care from Antelope Valley Spinal Care, the report of the examination in June 2005, and the records of the Veteran's treatment at Kaiser Occupational Health. Review of the claims file reveals that the Veteran applied for Social Security Administration (SSA) disability benefits. Although there is an indication in a deferred rating decision dated in December 2011 that the records regarding the Veteran's application for SSA disability benefits should be requested and the Supplemental Statement of the Case dated in February 2013 indicates that a response was received from the Department of Social Services, State of California - Health and Human Services Agency dated in April 2009, the records regarding the application for these benefits have not been associated with the claims folder. The Board notes that the letter from the Department of Social Services dated in April 2009 notifies VA that the Veteran had applied for benefits and requested VA records. Because SSA records are potentially relevant to the Board's determination, VA is obliged to attempt to obtain and consider those records. 38 U.S.C.A. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(2); see also Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir., 2009); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). Thus, this appeal must be remanded to obtain the Veteran's complete SSA record. The Veteran was most recently examined in regard to his claim for service connection for left inguinal hernia in August 2012. VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2012); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In addition, the VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, as this remand requests the association with the claims file of additional evidence the Veteran must be afforded another VA medical examination regarding the etiology of his left inguinal hernia. In rating decisions dated in September 2008 and February 2009, the RO denied entitlement to service connection for posttraumatic stress disorder; entitlement to service connection for migraine headaches due to head trauma; and entitlement to compensation under 38 U.S.C.A. § 1151 for heart attack, stroke, and Brown's tumor; and granted entitlement to an evaluation of 20 percent disabling for thoracic spine with degenerative changes. Subsequently, in a statement dated in April 2009 the Veteran disagreed with denials of entitlement to service connection, with the denial of compensation pursuant to 38 U.S.C.A. § 1151, and with the rating and effective date assigned for thoracic spine with degenerative changes. To date the Veteran has not been provide a Statement of the Case regarding these issues. Therefore, under the circumstances, the Board has no discretion and is obliged to remand this issue to the RO for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following action: 1. Issue the Veteran a Statement of the Case with respect to his claims of whether new and material evidence has been received to reopen a claim of entitlement to service connection for posttraumatic stress disorder; entitlement to service connection for migraine headaches due to head trauma; entitlement to compensation under 38 U.S.C.A. § 1151 for heart attack, stroke, and Brown's tumor; entitlement to an evaluation in excess of 20 percent disabling for thoracic spine with degenerative changes; and entitlement to an effective date prior to March 18, 2008, for the grant of an evaluation of 20 percent disabling for thoracic spine with degenerative changes. 2. Attempt to obtain all VA treatment records regarding the Veteran that are dated since August 2008. 3. After obtaining any necessary authorization, attempt to obtain and associate with the claims file records of the Veteran's treatment at Antelope Valley Spinal Care, the report of the examination performed in June 2005, and records regarding the Veteran's treatment by Kaiser Occupational Health. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file. All attempts to obtain treatment records must be noted in the claims file. 4. Obtain complete copies of any SSA decisions on a claim for disability benefits from that agency, together with the medical records that served as the basis for any such determination. All attempts to fulfill this development should be documented in the claims file. If the search for these records is negative, that should be noted and the Veteran must be informed in writing. 5. Thereafter, arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any left inguinal hernia found to be present. The claims file should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner should opine as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), that any left inguinal hernia found to be present were incurred during military service or are due to an event or injury during military service. A rationale for any opinion advanced should be provided. The examiner should also state what sources were consulted in forming the opinion. 6. Undertake any additional development deemed necessary, to include scheduling additional VA examinations in regard to the Veteran's claims. 7. Thereafter, readjudicate the issues on appeal and if the benefits sought on appeal remain denied or not granted to the Veteran's satisfaction, the Veteran and his attorney should be provided with a supplemental statement of the case, which should contain notice of all relevant actions taken on the claim for benefits. An appropriate period of time should then be allowed for a response, before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL MARTIN 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).