Citation Nr: 1341948 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-24 996 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Whether new and material evidence has been received to reopen a claim for service connection for chronic degenerative arthritis of the cervical spine, and nerve damage to the cervical spine, left shoulder, and left arm, claimed as secondary to surgical removal of the ribs (now, status post removal of the left first and cervical ribs for thoracic outlet syndrome). REPRESENTATION Appellant represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from June 1972 to July 1977, and in the Navy from October 1978 to October 1984. Historically, in February 2004 rating decision, the RO, inter alia, denied service connection for chronic degenerative arthritis of the cervical spine, and nerve damage to the cervical spine, left shoulder, as secondary to surgical removal of ribs [now characterized as status post removal of the left first and cervical ribs for thoracic outlet syndrome, following the award of service connection.]. Although notified of the denial, and of his appellate rights, in a March 2004 letter, the Veteran did not initiate an appeal. This appeal to the Board of Veterans' Appeals (Board) arose from an August 2008 rating decision in which the RO in San Diego, California, continued the prior denial of service connection for chronic degenerative arthritis of the cervical spine, and nerve damage to the cervical spine, left shoulder, and left arm, as secondary to status post removal of the left first and cervical ribs for thoracic outlet syndrome. In September 2008, the Veteran filed a notice of disagreement (NOD). The Veteran had an informal conference with a Decision Review Officer (DRO) (in lieu of a hearing) in November 2009; a Conference Report has been associated with the claims file. Jurisdiction of the appeal was subsequently transferred to the RO in Albuquerque, New Mexico, which issued a statement of the case (SOC) in July 2011. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2011. Jurisdiction was then transferred to the RO in Waco, Texas, which issued a supplemental statement of the case (SSOC) in February 2012. In January 2013, the Veteran withdrew the request for a Board video-conference hearing reflected in his September 2011 substantive appeal. In February 2013, the Veteran's agent sent to the Board a letter requesting to withdraw representation of the Veteran. Under 38 C.F.R. § 20.608(b), following certification of an appeal to the Board, a representative may not withdraw representation without good cause shown on motion. In a letter dated in September 2013, the Board informed the agent of the need to file a motion for withdrawal with the Board showing good cause for the withdrawal, with notice to the Veteran. The Board further advised the agent that he would be permitted to withdraw from representation only if his motion was granted by the Board, and that if he did not respond within 30 days of the date of the letter, it would be assumed that he wished to remain the Veteran's representative. To date, no response from the agent has been received. Thus, the agent remains the Veteran's representative of record before the Board. 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 documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. Regarding characterization of the appeal, the Board notes that the RO characterized the claim as a de novo claim for service connection. However, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108 and 7105 (West 2002) to address the question of whether new and material evidence has been received to reopen the previously-denied claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board has characterized the appeal as involving a request to reopen the previously-denied claim. For reasons expressed, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that issues of entitlement to a TDIU and an earlier effective date for residuals of status post removal of the left first and cervical ribs have been raised by the record. In his September 2008 NOD, the Veteran stated that he believed his effective date for status post removal of the left first and cervical ribs should be from 2003, when he filed his first claim. A May 2008 VA examination report shows that the Veteran stated he had not been working since 2002 because of his arthritis in his neck. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ)-here, the RO. Therefore, the Board does not have jurisdiction over these issues, and they are referred to the RO for appropriate action. REMAND The Board's review of the claims file reveals that additional RO action in this appeal is warranted. The evidence of record indicates that the Veteran is in receipt of Social Security Disability Insurance (SSDI) benefits. The Veteran stated in an April 2009 statement that he receives "social security for the exact reason that I am claiming disability from the VA." As the SSDI records may be relevant to the Veteran's claim, VA has a duty to make reasonable efforts to obtain these records. See 38 C.F.R. § 3.159(c)(2) (2013); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that if there is a reasonable possibility that Social Security records are relevant to a claim, VA is required to assist the claimant in obtaining the identified records). Also, April 2007 VA treatment records indicate that the Veteran had a C6 hemilaminectomy in 1995. As this surgery is potentially relevant to the Veteran's service connection claim, these records should also be obtained on remand. 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 Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all pertinent outstanding records of VA evaluation and/or treatment of the Veteran, to include records associated with the 1995 surgery, noted above, following the current procedures prescribed in 38 C.F.R. § 3.159 with respect to requesting records from Federal facilities. Further, to ensure that all due process requirements are met, and that the record is complete, the RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal, notifying him that he has a one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain any outstanding, pertinent VA treatment records, to particularly include those associated with the Veteran's C6 hemilaminectomy in 1995. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain from the Social Security Administration a copy of the decision pertinent to the Veteran's claim for Social Security disability benefits, as well as the medical records relied upon concerning that claim. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with regard to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, any outstanding, pertinent private medical records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the matter on appeal in light of all pertinent evidence (to include all that was added to the record since the last adjudication) and legal authority. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See, e.g., Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).