Citation Nr: 1757029 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-04 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial increased rating in excess of 10 percent for chronic cervical strain prior to September 26, 2013, and to a rating in excess of 20 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1982 to October 1985. These matters come before the Board of Veterans' Appeals (Board) from a January 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in November 2016. The claims file includes a transcript of the proceeding. A claim for a TDIU is part and parcel of an increased rating claim where, as here, a claimant asserts that his service-connected disabilities prevent him from working. See Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). At his November 2016 Board videoconference hearing, the Veteran indicated that he was no longer able to work, at least in part, due to his service-connected cervical spine disability. As such, the Board has characterized the issues on appeal to include a claim of entitlement to a TDIU. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Before a decision can be reached on the instant claims, a remand is necessary to ensure that there is a complete record upon which to afford the Veteran every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The record reflects that there might be outstanding VA treatment records that are pertinent to the Veteran's claims. Specifically, at his November 2016 Board videoconference hearing, the Veteran indicated that he had received treatment at the Portland VA Medical Center (VAMC), in addition to the American Lake, Seattle, and/or Olympia, Washington VAMCs. Although treatment records from the Portland VAMC were last obtained in December 2016, there are no records from the Portland VAMC for the period between December 2013 and May 2016. The record contains no treatment records from a VAMC in Washington. As any outstanding records might be pertinent to the Veteran's claims, the AOJ should obtain these and any other identified outstanding medical treatment records on remand. See 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c). The records also suggests that there might be outstanding records from the Social Security Administration (SSA) that pertain to the Veteran's claims. Specifically, in a July 2016 VA primary care note, it was noted that the Veteran was currently applying for Social Security Disability benefits. In the case of federal records, VA's duty to assist requires it to make as many requests as necessary to secure relevant federal records. See 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(2) (stating that VA will end its efforts to obtain federal records only if it concludes that the records sought do not exist or that further efforts to obtain such records would be futile). As the claim for Social Security Disability benefits might involve service-connected disabilities, a remand is necessary to obtain and associate with the claims file any SSA decisions awarding or denying benefits to the Veteran, in addition to the records upon which SSA based any decision. As noted above, the Board has determined that a claim for a TDIU is part of the pending increased rating claim. As the Veteran has not been sent a notification letter in compliance with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), the issue of entitlement to a TDIU must be remanded for appropriate notice and development. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. In particular, obtain any outstanding medical records from the Portland VAMC dated from December 2013 to the present, in addition to any outstanding records from the American Lake, Seattle, and/or Olympia, Washington VAMCs. Follow the procedures for obtaining the records, as set forth by 38 C.F.R. § 3.159(c), and obtain VA Form 21-4142 releases if necessary. If VA attempts to obtain any outstanding records that are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Ensure that all notification and development action required by 38 U.S.C. §§ 5102, 5103 and 5103A are complied with and satisfied with respect to the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16. 3. Perform an SSA inquiry to determine whether there are any records that exist but have not yet been associated with the claims file, to include any administrative decision(s) on any application for SSA disability benefits and all underlying medical records in SSA's possession. If the search for such records yields negative results, the claims file must be properly documented as to the unavailability of these records. Associate all SSA inquiries, records requests, and responses received with the claims file. 4. After completing the development requested above, in addition to any other development deemed necessary by the AOJ, re-adjudicate the Veteran's claims, with consideration of all evidence obtained since the issuance of the December 2013 Statement of the Case. If any benefit sought is not granted in full, furnish the Veteran and his representative an SSOC, and return the case to the Board, if otherwise 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). These claims 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. §§ 5109B, 7112. _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).