Citation Nr: 1802015 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-22 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a neck disability. 4. Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Dupont, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1970 to October 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Cleveland, Ohio, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a right knee, right shoulder, and unspecified nerve disability. An April 2010 Statement of the Case (SOC) recharacterized the issue of entitlement to service connection for a nerve disability as entitlement to service connection for neck and low back disabilities (as the anatomical locations of the claimed nerve pain). In December 2009, an informal conference was held before a Decision Review Officer (DRO) at the RO; a transcript is associated with the Veteran's record. In a May 2010 VA Form 9, the Veteran requested a hearing before the Board. In a statement received in December 2014, he withdrew such request. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND On review of the record, the Board has found that further development is needed for VA to fulfill its duties mandated under the Veterans Claims Assistance Act of 2000 (VCAA). The record shows that the Veteran receives Social Security Administration (SSA) disability benefits. See May 23, 2003 and June 25, 2010 VA clinical records. Records pertaining to his application for, and award of, SSA disability benefits are not in his VA record (other than one page received in June 2007 which notes findings of a herniated lumbar disc and spinal stenosis). Because they are constructively of record, and because the Board is unable to find that such records would not be relevant (in fact, the records appear extremely relevant), they must be sought on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Furthermore, the record shows that the Veteran receives (or had received) Teamsters Union disability pension benefits. See May 23, 2003 VA clinical record. Records pertaining to the award of such benefits have not been sought, and also are not in his VA record. As records relating to a postservice intervening injury are pertinent evidence in a claim seeking service connection and would contribute to a more accurate and complete history and disability picture, the records must be secured. Finally, the record shows that the Veteran receives ongoing VA treatment for the disabilities at issue. The most recent records of VA treatment/examination are from August 2015. Records of any treatment since then may contain pertinent information, are constructively of record, and must be secured. A governing regulation (38 C.F.R. § 3.158(a)) provides that where evidence or information sought by VA in connection with a claim for VA benefits is not received within a year following the request the claim will be considered abandoned. Accordingly, the case is REMANDED for the following: 1. The AOJ should secure for the record from SSA complete records pertaining to the Veteran's claim for SSA disability benefits, including the determination on the claim and all evidence considered in connection with the determination. If the records are unavailable, the reason for their unavailability must be noted in the record. 2. The AOJ also secure for the record all updated records of VA evaluations or treatment the Veteran has received for his right knee, right shoulder, neck, and back since August 2015 (the date of the most recent VA treatment records associated with the record). 3. The AOJ should also ask the Veteran to identify all private providers of evaluations or treatment he has received for his right shoulder, right knee, neck, and back (records of which have not already in the record), in particular the providers of all evaluations and treatment he received in connection with the injuries for which he is receiving Teamsters Union disability benefits, and to submit for the record authorizations for VA to obtain for the record all records from the providers identified. He must also provide authorization for VA to secure all records pertaining to his award of Teamsters Union disability benefits, to include a copy of the award and all records considered in connection with the award. If he does not respond within a year, the claim should be further processed under 38 C.F.R. § 3.158(a). If he responds with the information and releases sought, thie AOJ should secure for the record complete records outstanding (those not already associated with the record) from all providers identified. If any records sought are unavailable, the reason for their unavailability must be noted in the record. If a private provider does not respond to the AOJ's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private records are received. 4. After the development requested above is completed (and if the claim is not processed under 38 C.F.R. § 3.158(a)), the AOJ should review the record, arrange for any further development suggested, and readjudicate the claim. If any remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative opportunity to respond, and return the case to the Board. The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board 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).