Citation Nr: 1529617 Decision Date: 07/10/15 Archive Date: 07/16/15 DOCKET NO. 09-09 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, dizziness, and left facial neuralgia. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1974 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. This matter was previously remanded by the Board in October 2012. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. REMAND The Board remanded the issue of entitlement to service connection for residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, dizziness, and left facial neuralgia, in October 2012. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Id. Accordingly, the development specified in the Board's prior remand must be conducted prior to adjudication. In the October 2012 remand, the Board directed that the Veteran undergo further VA examination in connection with his service connection claim. The Appeals Management Center (AMC) scheduled the examination for August 2012, but the Veteran cancelled due to lack of transportation. In a March 7, 2013, letter, the AMC requested that the Veteran provide a date and time when he would be available to have his examination rescheduled. In a statement dated March 21, 2013, and received by the Board on May 8, 2013, the Veteran reported that he had been hospitalized for several months, but would like to have his examination rescheduled. As such, the Board finds that remand is again warranted to obtain a VA examination and opinion to ensure substantial compliance with the Board's October 2012 remand directives. See Stegall, 11 Vet. App. at 271. Additionally, there is some indication in the record that the Veteran may receive disability compensation from the Social Security Administration (SSA). It appears that the RO requested such records in July 2011, but that the compact disc they received in response from SSA in August 2011 arrived broken. In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the Court found that VA's duty to assist specifically included requesting information from other Federal departments. The Court has further held that VA must obtain SSA records which may have a bearing on claims for VA benefits. See Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993); Shoemaker v. Brown, 3 Vet. App. 519 (1993). Moreover, the Court has determined that, "[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained." Hyatt v. Nicholson, 21 Vet. App. 390 (2007). The Board is aware that it need not obtain SSA records prior to determining that there is no reasonable possibility that such are relevant to the Veteran's claims for VA compensation. See Golz v. Shinseki, 590 F.3d 1317, 1320-1321 (Fed. Cir. 2010). However, that possibility cannot be excluded under the circumstances presented here, and remand is warranted so that the RO may request the Veteran's SSA records. See Golz, 590 F.3d at 1321. Further, as it appears the Veteran receives continuous treatment through VA, the Board finds the RO should obtain any VA treatment records dated from October 2012 to the present. Accordingly, the case is REMANDED for the following actions: 1. Contact the SSA and request a copy of any decision made pursuant to a claim of the Veteran for disability benefits, as well as the medical records upon which any decision was based. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Obtain and associate with the record VA treatment records for the Veteran dated from October 2012 to the present. All actions to obtain the requested records should be documented fully in the claims file. If any records cannot be located or no such records exist, the Veteran and his representative should be so notified, and the unavailability of the records should be noted in the claims file. 3. Schedule the Veteran for another VA examination to determine the current nature and etiology of any neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, dizziness, and left facial neuralgia. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished. After a review of the evidence, to include the Veteran's service treatment records, VA treatment records and examination reports, SSA records, private treatment records, and with consideration of the Veteran's lay statements regarding his symptoms, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that any current neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, dizziness, and left facial neuralgia, began in service, was caused by service, or is otherwise related to service. In formulating the opinion, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. A complete rationale should be provided for any opinion or conclusion expressed. 4.. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences, to include the denial of his claims, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2104). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 5. After all development has been completed, re-adjudicate the claim of entitlement to service connection for a neck-related disability, to include residuals of drainage of a lateral pharyngeal abscess on the left side of the neck, to include headaches, blurred vision, dizziness, and left facial neuralgia. If the benefit sought on appeal is not granted to the fullest extent, issue the Veteran and his representative a Supplemental Statement of the Case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. 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 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 2014). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).