Citation Nr: 1753919 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 10-22 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for bilateral flat feet. 3. Entitlement to service connection for multiple sclerosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1974 to April 1975, with additional National Guard service. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Board notes that the Veteran initially requested a Board hearing in his VA Form 9 Substantive Appeal with respect to the issue of entitlement to service connection for hypertension, but withdrew that request in a statement received in September 2014. The Board further notes that the issue of entitlement to service connection for hypertension has been addressed by the Agency of Original Jurisdiction (AOJ) as an issue of whether new and material evidence has been submitted to reopen the claim. However, under 38 C.F.R. § 3.156(c) (2017), if at any time after VA issues a decision on a claim VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. Here, some of the Veteran's service treatment records were associated with the file following the initial July 2003 rating decision denying service connection and contain records relevant to the Veteran's hypertension claim. Specifically, the records reflect in-service blood pressure readings. Accordingly, the Board finds that 38 C.F.R. § 3.156(c) is applicable to the hypertension claim and that the July 2003 rating decision is not final with respect to that issue; as such, the issue before the Board is an initial claim for service connection. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND With respect to the Veteran's claim for entitlement to service connection for hypertension, the record does not reflect that a VA opinion has been obtained. The record reflects a diagnosis of hypertension during the pendency of the appeal which the Veteran asserts is related to service. The service treatment records do not demonstrate a diagnosis of hypertension, but do contain some blood pressure readings which may be considered elevated. Accordingly, the Board finds remand is warranted so that a VA opinion and, if necessary, examination may be obtained. Furthermore, upon review of the Veteran's claim file, it is clear that he has received compensation from the Social Security Administration (SSA). In Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the United States Court of Appeals for Veterans Claims (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 the AOJ should request the Veteran's SSA records. See Golz, 590 F.3d at 1321. In his June 2010 VA Form 9 Substantive Appeal with respect to the issue of hypertension, the Veteran also indicated his disagreement with the July 2009 denial of service connection for bilateral flat feet and multiple sclerosis. Since the Veteran's statement was filed within the appeal period and clearly indicated his intent to appeal the rating decision, the Board finds that the June 2010 filing is properly characterized as a Notice of Disagreement. 38 C.F.R. § 20.201 (2017). The filing of a Notice of Disagreement initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Remand is therefore required so that the Veteran may be issued a Statement of the Case with respect to the issues of entitlement to service connection for bilateral flat feet and multiple sclerosis. See Manlincon v. West, 12 Vet. App. 238 (1999). Updated treatment records should also be associated with the claims file. 38 U.S.C. § 5103A(c) (2012). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to the claim for entitlement to service connection for hypertension. All identified VA records should be added to the claim file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Request from the SSA the records pertinent to any claim by the Veteran for disability benefits as well as the medical records relied upon to decide the claim. If the records do not exist or are not available, the Veteran should be notified and the claims file annotated as such. 3. After the above development has been completed to the extent possible, send the claims file to a VA examiner to obtain an opinion as to whether the Veteran's hypertension is related to, or had onset within one year of, his service. The claim file must be reviewed by the examiner. If an examination is deemed necessary to respond to the request, one should be scheduled. After review of the claims file and, if necessary, examination of the Veteran, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that hypertension arose in or within one year of service or is otherwise causally related to service. A complete medical rationale must be provided for any opinion expressed. 4. Issue a Statement of the Case and notify the Veteran of his appellate rights with respect to the issue of entitlement to service connection for bilateral flat feet and multiple sclerosis. In the notice and Statement of the Case, remind the Veteran that to vest the Board with jurisdiction over these issues, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2017). If the Veteran perfects an appeal as to the issues, return the claims to the Board for appellate review. 5. After completing the requested actions, and any additional actions deemed warranted, the AOJ should readjudicate the claim for entitlement to service connection for hypertension. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 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). This appeal must be afforded expeditious treatment. The law requires that all issues that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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) (2017).