Citation Nr: 18157980 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 15-10 420A DATE: December 14, 2018 REMANDED The claim of entitlement to an effective date earlier than November 21, 2011, for the assignment of a 40 percent rating for service-connected lumbar spine disability, is remanded. The claim of entitlement to an effective date earlier than November 21, 2011, for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU), is remanded. The claim of entitlement to an effective date earlier than November 21, 2011, for the establishment of basic eligibility for Dependents’ Educational Assistance (DEA) benefits, is remanded. REASONS FOR REMAND The Veteran had active duty service from August 1980 to April 1982, and from January 1985 to July 1986. This appeal to the Board of Veterans’ Appeals (Board) arose from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, wherein a decision review officer (DRO) increased the Veteran’s lumbar spine disability rating to 40 percent, effective November 11, 2011; awarded entitlement to TDIU, effective November 11, 2011; and awarded basic eligibility for DEA, effective November 11, 2011. In June 2012, the Veteran filed a notice of disagreement wherein he disagreed with the effective date of November 11, 2011, assigned for his 40 percent rating, award of TDIU, and establishment of eligibility for DEA benefits. A statement of the case (SOC) was issued in March 2015, and the Veteran filed a substantive appeal (via a VA Form 9 (Appeals to Board of Veterans’ Appeals) that same month. The Board notes that on his VA Form 9, the Veteran checked the box indicating his desire for a videoconference hearing before a Veterans Law Judge. The Veteran was scheduled for a hearing to be held on December 13, 2017. However, in correspondence received that same month, the Veteran withdrew his hearing request. 38 C.F.R. § 20.704(e) (2017). The Board notes also that the Veteran had requested an RO hearing before a DRO, but similarly withdrew his request for such hearing. Thr Board’s review of the claims file reveals that agency of original jurisdiction (AOJ) action in this appeal us warranted. Specifically regarding the claims for an earlier effective date for the assignment of a 40 percent rating for the Veteran’s lumbar spine disability and for the award of a TDIU, the Board notes that both the June 2012 rating decision and March 2015 SOC list, as evidence considered, VA treatment records from the Gainesville, Florida, VA Medical Center (VAMC) dated from August 2004 to May 2012. The RO’s discussion of the appropriate rating for the Veteran’s lumbar spine disability also discussion of evidence purportedly included amongst these records. While the Veteran’s claim file contains VA treatment records from the VAMCs in Bay Pines, Florida, and Birmingham, Alabama, the Board cannot locate in the Veteran’s claims file any VA treatment records from the Gainesville VAMC, save for a copy of a July 2011 neurology consultation note, which document was submitted by the Veteran himself. For the Board to make an independent review of the Veteran’s claims, all potentially relevant records must be obtained and included in the Veteran’s claims folder. In this regard, to the extent that the RO reviewed treatment records from the Gainesville VAMC that were contained in CPRS (Computerized Patient Record System), this is a computer program which is not accessible to the Board and the Board has no way to review potentially relevant information contained in these treatment records. Accordingly, a remand is necessary for the agency of original jurisdiction (AOJ) to ensure that all relevant records are associated with the claims folder and made available for review by the Board so that the Board’s evaluation of the Veteran’s claims will be a fully informed one. See 38 U.S.C. § 5103A(b)(1) (setting forth VA’s duty to obtain relevant records); Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed.Cir.2010) (“[I]f there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits, the duty to assist requires VA to obtain the records.”); The Board further finds that the claims of entitlement to earlier effective dates for the assignment of a 40 percent rating for the Veteran’s lumbar spine disability and award of TDIU must also be remanded for the AOJ to attempt to obtain the Veteran’s records from the Social Security Administration (SSA). In this regard, the Board notes that the RO attempted to obtain the Veteran’s SSA records in 2011, at which time SSA responded that there was no medical record or that it was unable to locate the medical file. Since that time, however, the Veteran has been awarded SSA disability benefits, and a copy of September 2012 fully favorable decision is of record While SSA records are not controlling for VA determinations, they may be “pertinent” to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice that the Veteran has been granted SSA benefits, VA has a duty to obtain the records associated with that decision. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Murincsak, supra. In this case, the Board notes that SSA granted benefits due, in part, to the severity of the Veteran’s lumbar spine disability. As such, the Board cannot conclude that no reasonable possibility exists that the Veteran’s SSA records would not aid in substantiating any of his claims. See Golz, 590 F.3d at 1320 (holding that not all SSA disability records must be sought, but only those that are relevant to the Veteran’s claim). Therefore, on remand, the AOJ should request from SSA all records related to any grant of benefits. Notably, considering that basic eligibility for DEA benefits exists if a veteran (1) was discharged from service under conditions other than dishonorable and (2) has a permanent and total service-connected disability, see 38 U.S.C. § 3501(a), (d); 38 C.F.R. § 3.807, the issue of entitlement to an effective date earlier than November 21, 2011, for the establishment of basic eligibility for DEA benefits must also be remanded as it is inextricably intertwined with the claim for an earlier effective date for the award of TDIU. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). Also while these matters are on remand, to ensure that the record is complete, the AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the appeal, explaining that she has a full one-year period to respond. See 38 U.S.C. § 5103(b)(1). But see 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal (which, ideally, will be adjudicated along with the waiver request, referenced above). The matters are hereby REMANDED for the following action: 1. Undertake appropriate action to ensure that all pertinent VA treatment are obtained and associated with the Veteran’s claims file. In particular, all treatment records from the Gainesville VAMC must be made available for review by the Board. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Request from SSA copies of all medical records underlying its determination that the Veteran was eligible for benefits provided by that agency. In requesting these records, follow the current procedures of 38 C.F.R. § 3.159 (c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his attorney a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to one or more claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the appellant of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Neilson, Counsel