Citation Nr: 1335285 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-34 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to nonservice-connected disability pension benefits. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 3. Entitlement to a disability rating in excess of 30 percent for depression. REPRESENTATION Appellant represented by: Allen T. Fenley, Attorney at law ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active military service from November 1989 to November 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2006 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By these rating actions, the RO denied the Veteran's claims of entitlement to nonservice-connected disability pension benefits and TDIU, respectively. The Veteran appealed these rating actions to the Board. This appeal also stems from a March 2011 rating action by the above-cited RO. By that rating action, the RO, in part, continued a 30 percent disability rating assigned to the service-connected depression. The Veteran appealed this rating action to the Board. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND Unfortunately, the Board finds that it must remand the claims for pension, TDIU and increased rating for additional substantive development. Specifically, to obtain outstanding VA treatment and Social Security Administration (SSA) records; and, to have the RO issue a Supplemental Statement of the Case (SSOC) that addresses all evidence received since issuance of a March 2011 SSOC with respect to the pension and TDIU claims, and December 2012 Statement of the Case (SOC), with respect to the increased rating claim. Thus, consideration of the above-cited claims will be deferred and remanded to the RO for actions as described in the directives outlined in the indented paragraphs below. (i) VA records In December 2006 and June 2007 statements to the RO, the Veteran's former representative and the Veteran reported that he had sought treatment for his various service-connected disabilities (low back disability (evaluated as 10 percent disabling) and depression (evaluated as 30 percent disabling)), and other "medical conditions" at the Grand Rapids and Muskegon, Michigan VA Community Based Outpatient Clinics (CBOCs). While records from Ann Arbor and Battle Creek, Michigan VA Medical Centers (VAMCs) are contained in the claims files, records from the above-cited VA CBOCs are absent. In addition, VA treatment records, dated from May 25, 1999, to January 14, 2011, from the VA Medical Center (VAMC) in Ann Arbor, Michigan, referenced by the RO in a March 2011 SSOC and March 2011 rating action, have not been associated with the Veteran's physical claims files nor have they been uploaded to the Veteran's Virtual VA electronic claims file or Veterans Benefits Management System (VBMS). As these outstanding VA treatment records might contain relevant clinical findings pertaining to the Veteran's service and nonservice-connected disabilities and their affect, if any, on his ability to maintain employment, and the current severity of his depression, they must be requested and associated with the claim files on remand. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). (ii) SSA records The Board notes that the Veteran is in receipt of SSA disability benefits. (See January 2011 VA psychiatric examination report). As these records might contain clinical findings that are relevant to the Veteran's service and nonservice-connected disabilities and their affect, if any, on his ability to maintain employment, and the current severity of his depression, they must also be requested and associated with the claim files on remand. See generally Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992). Upon remand of this matter, the RO/AMC should attempt to obtain the Veteran's SSA records and associate them with the Veteran's claims files. (iii) Evidence received since SSOC/SOC Finally, as the Veteran and his attorney have not waived any Agency of Original Jurisdiction consideration of evidence received since issuance of a March 2011 SSOC and December 2012 SOC, wherein the RO addressed the pension, TDIU and increased rating claims on appeal, the Board has no discretion but to remand these claims. See 38 C.F.R. § 20.1304(c) (2013). Accordingly, the case is REMANDED to the RO for the following action: 1. Obtain and associate with the Veteran's physical claims file or upload them to his Virtual VA electronic claims file or VMBS file treatment records from the following VA facilities: (i) CBOCs in Grand Rapids and Muskegon, Michigan, dated from 2006 to the present; (ii) VAMC in Ann Arbor, Michigan, dated from May 25, 1999, to January 14, 2011, referenced by the RO in a March 2011 SSOC and March 2011 rating action. If such efforts prove unsuccessful, documentation to that effect should be added to the claims files. The Veteran and his attorney must also be provided with an opportunity to submit such reports. 2. Appropriate efforts should be made to obtain from the SSA the records pertinent to the Veteran's claim for SSA disability benefits. If such records are unavailable, a notation to that effect should be made in the claims files. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with appropriate consideration of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case that addresses all evidence received since issuance of a March 2011 SSOC and December 2012 SOC and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ Michael J. Skaltsounis 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) (2013).