Citation Nr: 1801636 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a cervical spine disability, to include as secondary to the claimed lumbar spine disability. 3. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to May 3, 2017, and in excess of 70 percent thereafter. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1975, from December 1978 to December 1980, and from February 1981 to April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 1978, November 2011, and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 1978, the San Francisco, California RO denied entitlement to service connection for a lumbosacral strain, finding that acute back injuries in service resulted in no permanent disability. The RO notified the Veteran of the decision the same month and the Veteran did not initiate an appeal. However, prior to mailing the notification, the RO received correspondence from the Veteran enclosing two lay statements, including one from his wife reporting he had "complained of back pain since 1973 almost constantly. It seems to bother him quite often. [He] has complained of this back pain throughout our relationship." As this new lay evidence of continuing symptomatology of low back pain is dated within a year of the issuance of the September 1978 decision and was not addressed in the September 1978 notice letter, the Board finds that new and material evidence was received within a year of the 1978 decision and it did not become final. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) (holding that a claim remains pending where VA failed to fulfill a statutory duty to determine the character of newly submitted evidence and declining to presume that VA considered records of which it had notice, but never obtained); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (noting that 3.156(b) requires VA to determine whether subsequently submitted evidence constituted new and material evidence relating to an earlier claim); 38 C.F.R. § 3.156(a)-(b). Therefore, this claim is properly characterized as a claim for service connection rather than an application to reopen the previously denied claim. Regarding the other issues on appeal, in November 2011, the Pittsburgh, Pennsylvania, RO granted service connection for PTSD and assigned an initial 30 percent disability rating, effective October 19, 2010. The Veteran disagreed with the initial rating assigned. Subsequently, the Veteran's appeal was transferred to the jurisdiction of the Roanoke, Virginia RO. In a July 2012 rating decision, the Roanoke RO denied entitlement to service connection for low back and cervical spine disorders and denied entitlement to a TDIU. After receiving additional evidence, the RO confirmed and continued the denials in an August 2012 rating decision. The Veteran perfected a timely appeal. Finally, in a July 2017 rating decision, the RO increased the initial rating for PTSD with recurrent, moderate major depressive disorder to 70 percent, effective May 3, 2017. The Court has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issue of entitlement to an increased rating for PTSD remains in appellate status. In October 2017, the Veteran testified at the Board (Central Office hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Having reviewed the evidence of record, the Board finds that additional development is required before deciding the issues on appeal. The Veteran contends that he has a current low back disability as a result of an April 1972 injury that occurred aboard the USS Coral Sea (CVA-43). In the September 1978 decision, the RO concluded that although the Veteran was struck by the stabilizer of a turning airplane while working on a carrier flight deck in April 1972, complained of occasional back pain over the past year in April 1973, and complained of back pain after a February 1974 automobile accident, x-rays on several occasions were normal, the diagnosis was muscle strain, and the May 1975 separation examination report revealed a normal spine on clinical evaluation. In other words, the RO found that although the Veteran had suffered acute injuries with back pain on at least two occasions in service, they resulted in muscle strains and left no permanent disability. In correspondence received in September 1978, the Veteran indicated that he had "not been treated for any back pain since [his] discharge because [he] was told that the pain would eventually go away, but to date it seem[ed] that the pain [was] increasing." He enclosed lay statements from his wife and a shipmate attesting to his back pain symptomatology and continuity. The AOJ should consider the lay evidence received in September 1978 and readjudicate the claim. The Veteran also contends that his current cervical spine disability is secondary to the claimed low back disability; that an initial rating of at least 50 percent is warranted for his PTSD prior to May 3, 2017; and that he is unable to secure or follow a substantially gainful occupation consistent with his work history in construction and educational attainment of an associate's degree due to service-connected psychiatric disability and mobility problems associated, in part, with his claimed low back disability. Evidence of record indicates that the Veteran has been receiving disability benefits from the Social Security Administration (SSA) since 2006. His VA claims file does not contain information regarding the basis for the award of benefits, such as which disability(ies) rendered him unable to work. While SSA records are not controlling for VA determinations, they may be pertinent to VA claims, including the Veteran's. Moreover, where VA has actual notice of the existence of records held by the SSA that appear relevant to a pending claim, VA has a duty to assist by requesting those records. Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992). In this case, the SSA records have not been obtained, but may be pertinent to the claims on appeal. On remand, the AOJ should secure those records. The AOJ also should obtain any ongoing treatment records from the Washington, D.C., VA Medical Center (VAMC) or other related clinics dating since June 2017 and any other VA or private treatment records the Veteran identifies pertinent to the claimed low back and neck disabilities dated prior to January 2012. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Finally, because the issue of a TDIU is dependent on the outcome of the service connection and increased rating claims, it is inextricably intertwined with those issues being remanded and must also be remanded. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain the following records: a) the determination pertinent to the Veteran's claim for SSA disability benefits, as well as any medical records relied upon concerning the claim; b) all records dating since June 2017 from the Washington, D.C. VAMC or other related clinics; and c) any other VA or private treatment records the Veteran identifies pertinent to the claimed low back and neck disabilities dated prior to January 2012. 2. After completing the requested actions, and any additional notification and/or development warranted by the record, to include consideration of the lay evidence received in September 1978 pertinent to the low back disorder claim and whether supplemental VA medical opinions are warranted regarding the etiology of the low back and neck disabilities, readjudicate the service connection, increased rating, and TDIU claims on appeal. If any benefit sought remains denied, issue a supplemental statement of the case (SSOC) and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, 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 (2012). _________________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).