Citation Nr: 1338299	
Decision Date: 11/21/13    Archive Date: 12/06/13

DOCKET NO.  13-07 886	)	DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to an effective date prior to February 29, 2012, for the grant of service connection for radiculopathy of the left lower extremity, associated with osteoarthritis with degenerative disc disease, L4-5.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.N. Moats, Counsel



INTRODUCTION

The Veteran served on active duty from October 1993 to March 1997. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which granted service connection for radiculopathy of the left lower extremity.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the Veteran's Virtual VA electronic claims folder reveals that, with the exception of an August 2013 brief submitted by the Veteran's representative and additional VA treatment records dated to October 2012, the documents are either duplicative of records already associated with the paper claims file or are not relevant to the issue on appeal.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.  VA will notify the Veteran if further action is required.


REMAND

Review of the claims file shows that the Veteran has applied for Social Security Administration (SSA) disability benefits.  However, it does not appear that the Veteran's SSA records have been requested.  In this regard, while such claim appears to have been denied, there still may be relevant records in the possession of such agency.  Thus, the agency of original jurisdiction (AOJ) should obtain the administrative decisions pertaining to the Veteran's claim and any underlying medical records from the SSA.  See Hayes v. Brown, 9 Vet. App. 67, 74 (1996) (VA is required to obtain evidence from the SSA, including decisions by the administrative law judge); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). 

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should contact the Social Security Administration and obtain copies of all administrative decisions (with associated medical records) pertaining to any claim for disability benefits by the Veteran.  All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2)  and 38 C.F.R. § 3.159(e).

2.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  The Board intimates no opinion as to the outcome of this case.  The Veteran need take no action until so informed.  The purpose of this REMAND is to ensure compliance with due process considerations.  
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The Veteran 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 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).



_________________________________________________
A. JAEGER
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).