Citation Nr: 1330569 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 11-01 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a disability of the eyes manifested by vision impairment. REPRESENTATION Appellant represented by: Blinded Veterans Association ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The appellant had active duty for training from April 1970 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal of January 2010 rating decision of the Newark, New Jersey, regional office (RO) of the Department of Veterans Affairs (VA). 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. See 38 C.F.R. § 19.9 (2013). The appellant in a February 2010 letter to VA indicates that he applied for Social Security disability due to his visual impairment between 1980 and 1981, and received social security benefits for a few years. These records, if extant, may be relevant to determining whether there is new and material evidence sufficient to reopen the Veteran's claim. However, there is no indication that VA has attempted to obtain his Social Security records. The duty to assist requires that VA obtain relevant records in the possession of a Federal agency, unless it is reasonably certain and documented that such records do not exist or that further efforts to obtain these records would be futile. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011); 38 C.F.R. § 3.159 (2013). Therefore, the Social Security records must be obtained unless it is documented that further efforts to get them would be futile. The appellant submitted a consent to release medical information (Form 21-4142) to the Regional Office (RO). In this form the appellant listed where his medical records were located: Ophthalmologist Dr. M. F. from July 2009 to present and Ophthalmologist Dr. M. L. from January 1974 to January 1979 and August 2009 to October 2009. Limited records from the above health care providers were attached to the form. However, the RO did not request any additional records from any of these facilities, and instead, the RO relied only on the records the Veteran provided. A review of the submitted records strongly suggests, and indicated by the Veteran's executed release, that such records are incomplete. The records the appellant provided are dated in March 2009 and August 2009 only. Complete records from the aforementioned facilities should therefore be requested and obtained to determine whether there is new and material evidence sufficient to reopen the Veteran's claim. 38 C.F.R. § 3.159(c)(1) (2013). Accordingly, the case is REMANDED for the following action: 1. Contact the appellant and inquire about all sources of his current treatment (both private and VA), obtain the appropriate waivers, and attempt to obtain copies of updated VA and private medical records pertinent to the appellant's eye treatment that have not yet been associated with the claims file. 2. A new waiver/consent form should be obtained for Ophthalmologist Dr. M. F. and Ophthalmologist Dr. M. L. to obtain the records identified but not collected; specifically: from Dr. M. F. July 2009 to present; and Dr. M. L. from January 1974 to January 1979 and August 2009 to October 2009. If the RO cannot obtain records identified as relevant by the appellant, a notation to that effect should be included in the appellant's file. The appellant is to be notified of unsuccessful efforts in this regard. 3. The RO should obtain from the Social Security Administration the records pertinent to the appellant's alleged claim for Social Security disability benefits as well as the medical records relied upon concerning that claim; or document why such records are unobtainable and notify the Veteran of the explanation and efforts made to collect such records. 4. Based on upon the results of the above development, the RO/AMC shall undertake any and all appropriate development deemed necessary, to include reopening the claim and obtaining a medical examination and/or opinion, if appropriate. 5. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be adjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the appellant and his representative. After the appellant and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). _________________________________________________ JONATHAN B. KRAMER 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) (2013).