Citation Nr: 1622315 Decision Date: 06/03/16 Archive Date: 06/13/16 DOCKET NO. 13-05 263 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy associated with lumbar spondylosis. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from September 5, 1978 to September 4, 1981 under honorable conditions. His period of service from September 5, 1981 to July 27, 1982 was under dishonorable conditions and is not therefore qualifying active service for VA purposes. An unappealed administrative decision to this effect was issued in January 1986. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2011 rating decision in which the RO continued a 20 percent rating for left lower extremity radiculopathy. In March 2011, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in January 2013. In March 2016, the Veteran testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. This appeal is now being processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Veteran also has a separate paperless, electronic Virtual VA file. A review of the Virtual VA file does not reveal any additional documents pertinent to the matter on appeal. For reasons expressed below, the claim on appeal is being remanded to the agency of original jurisdiction (AOJ). VA will notify the Veteran when further action, on this part, is required. As a final preliminary matter, it is noted that, during his March 2016 hearing, the Veteran claimed entitlement to service connection for pain in the right lower extremity secondary to his service-connected disabilities. As no such claim has been adjudicated by the AOJ, it is not properly before the Board. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. See 38 C.F.R. § 19.9(b) (2015). REMAND The Board's review of the claims file reveals that further AOJ action on the claim on appeal is warranted. Specifically, it appears that potentially pertinent records are outstanding. As for VA records, the claims file includes VA treatment records from the Miami VA Healthcare System dated through January 2013. However, during the March 2016 hearing, the Veteran reported that he receives VA acupuncture and physical therapy treatment every six months. He further reported that he had March 2016 X-rays and is scheduled to have a magnetic resonance imaging (MRI) test in July 2016. 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 Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the AOJ should obtain all outstanding, pertinent VA records of evaluation and/or treatment of the Veteran from January 2013 forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Additionally, in an April 2011 statement, the Veteran reported that he is a recipient of benefits from the Social Security Administration (SSA). No copy of any disability determination, or any clinical records used to support such an award, are of record. While SSA records are not controlling for VA determinations, they may be 'pertinent' to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak, supra; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the AOJ should obtain and associate with the claims file a copy of any SSA determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. Furthermore, to ensure that all due process requirements are met, and the record is complete, while this matter is on remand, the AOJ should also give the Veteran the opportunity to provide additional information and/or evidence pertinent to the claim being remanded, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1); but see also 38 U.S.C.A. § 5103(b)(3) (clarifying that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) medical records. Thereafter, the AOJ 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 (2015). 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 2014); 38 C.F.R. § 3.159 (2015). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted (to include arranging for the Veteran to undergo further medical examination, if appropriate) prior to adjudicating the claim on appeal. The AOJ's adjudication of the claim for increase should include consideration of all additional evidence added to the record since the last adjudication of the claim in the January 2013 SOC-to include, for the sake of efficiency, the March 20016 VA examination report (notwithstanding the waiver of initial AOJ consideration provided). The AOJ should specifically consider whether "staged rating" of the disability (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007) is appropriate. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Miami VA Healthcare System all outstanding, pertinent records of evaluation and/or treatment of the Veteran, dated since January 2013, to include March 2016 X-rays and, if available, July 2016 MRI test results. Follow the procedures of 38 C.F.R. § 3.159 as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Request from SSA copies of all records, not generated by VA, pertaining to any award of SSA disability benefits to the Veteran. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159(c) with respect 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 claims being remanded. Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding, pertinent, private (non-VA) 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, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran 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 another remand, ensure that all 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. Stegall v. West, 11 Vet. App. 268 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted (to include arranging for the Veteran to undergo further medical examination, if warranted), readjudicate the increased rating claim in light of all pertinent evidence (to include all that added to the VBMS and/or Virtual VA file(s) since the last adjudication) and legal authority (to include consideration of whether staged rating of the disability, pursuant to Hart (cited above), is appropriate. 7. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response. 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 benefit requested in 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 Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND 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 2014). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2015).