Citation Nr: 1805534 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-20 038 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). 2. Entitlement to an initial disability rating in excess of 10 percent from May 9, 2007 and 40 percent from February 16, 2017 for a low back disability. REPRESENTATION Veteran represented by: Spencer Lord, Agent WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Houle, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1972 to October 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In September 2017, the Veteran testified at a videoconference Board hearing before the undersigned at the Los Angeles RO. A transcript of that hearing is of record. The Board notes that in a March 2017 rating decision, the RO granted the Veteran's claim for service connection for a low back disability, assigning an initial disability rating of 10 percent, effective May 9, 2007, with an increase to 40 percent, effective February 16, 2017. In August 2017, the Veteran submitted a timely notice of disagreement in response to the March 2017 rating decision. A statement of the case has not been issued; therefore, a remand is required. See Manlincon v. West, 12 Vet. App 238, 240-241 (1999). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND The Board finds that additional development is needed before the Veteran's claims on appeal are decided. During his September 2017 videoconference Board hearing, the Veteran stated that he is currently in receipt of Social Security Administration (SSA) disability benefits. Review of the Veteran's claims file show that in September 2014, the SSA National Records Center provided a copy of the Veteran's SSA records pertaining to disability benefits in response to VA's September 2014 request. It appears that there may be additional outstanding records; however, as those records currently associated with the Veteran's claims file contain the Veteran's disability determination transmittal, as well as hearing records and a disability report. The SSA disability records refer to exhibits, specifically, additional medical treatment records, that were considered when reaching the Veteran's disability determination. These medical treatment records, however, are not located within the SSA records obtained by VA. Although disability determinations by the SSA are not controlling on VA, they are pertinent to the adjudication of a claim for VA benefits, and VA has a duty to assist the Veteran in obtaining these records. On remand, the AOJ should confirm that any outstanding SSA records for the Veteran are obtained and associated with his claims file. Additionally, during his September 2017 videoconference hearing, the Veteran stated that he currently receives medical treatment through VA, as well as from private physician Dr. M. R. Review of the Veteran's claims file shows VA treatment records through 2010 and private treatment records from Dr. M. R. through May 2016. As the Veteran asserts he continues to receive treatment from both VA and Dr. M. R., on remand, the AOJ should obtain and associate with the Veteran's claims files any outstanding VA and private treatment records. In March 2017, the RO granted the Veteran's claim for service connection for a low back disability, assigning an initial disability rating of 10 percent from May 9, 2007, with an increase to 40 percent from February 16, 2017. In August, 2017, the Veteran submitted a timely notice of disagreement. While the AOJ has acknowledged the Veteran's notice of disagreement, it does not appear that a statement of the case was issued. It is therefore proper to remand the issue of entitlement to an initial disability rating in excess of 10 percent from May 9, 2007 and 40 percent from February 16, 2017 for a low back disability to ensure that the Veteran is provided with a statement of the case and afforded the opportunity to submit a substantive appeal. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain from the Social Security Administration, all records pertinent to the Veteran's claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. Any negative search should be noted in the record and communicated to the Veteran. Additionally, in the event of a negative search, if it is determined that additional research requests would be futile, then a memorandum of unavailability should be drafted and added to the record. 2. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file, to specifically include private treatment records from Dr. M. R., referenced in the Veteran's September 2017 videoconference Board hearing transcript. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 3. Issue a statement of the case addressing the issue of entitlement to an initial disability rating in excess of 10 percent from May 9, 2007 and 40 percent from February 16, 2017 for a low back disability. The Veteran should be informed of the time period in which to submit a timely substantive appeal as to that matter. The AOJ should not return that matter to the Board for appellate consideration of the issue following the issuance of the statement of the case, unless the Veteran perfects his appeal. 4. After completing all indicated development, the AOJ should readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. 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 case 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). _________________________________________________ Thomas H. O'Shay 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).