Citation Nr: 21066578
Decision Date: 11/01/21	Archive Date: 11/01/21

DOCKET NO. 18-23 745
DATE: November 1, 2021

REMANDED

Entitlement to recognition of the appellant as the helpless child of the Veteran on the basis of permanent incapacity for self-support prior to attaining the age of 18 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from December 1968 to June 1972.  He died in July 2017.  The appellant is his adult son.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Board notes that the January 2018 rating decision on appeal is not currently part of the record.  In July 2019, the Board remanded the issue, in part, to allow the RO to associate a copy of the decision with the record.  In a February 2020 formal finding of unavailability, the RO determined that the January 2018 rating decision could not be located.  

The issue on appeal was also remanded in July 2020 in order to obtain additional Social Security Administration (SSA) records.  Specifically, the Board indicated that, although several records were obtained as a result of the Board's initial 2019 remand, it did not appear that the full scope of those SSA documents were received.  For example, the current records did not include the SSA decision that initially awarded disability benefits to the appellant.  However, in February 2018, the appellant submitted a copy of a November 2017 letter from SSA indicating that SSA had considered the appellant to have been disabled since May 2005.  Notably, the RO's November 2019 request to SSA for the appellant's records appears to have been limited to his medical records.  However, the July 2019 Board remand specifically stated that any and all records pertaining to the appellant should be obtained from SSA, to include any determinations and copies of all medical records considered in deciding any SSA disability claim.  Therefore, the Board remanded the issue in July 2020 in order to obtain the Veteran's complete SSA record, to include all determinations and copies of all medical records considered in deciding any SSA disability claim.

In August 2020, the RO made a request to SSA for "any and all records pertaining to the individual, to include any determinations and copies of all medical records considered in deciding his SSA disability claim."  Approximately one year later, in July 2021, VA informed the appellant that the SSA records could not be located and were therefore unavailable for review.  However, it does not appear that VA made any additional attempts to obtain these records from SSA, a federal agency.  

With all claims for benefits, VA has the duty to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary [of VA]."  38 U.S.C. § 5103A (a)(1); see also 38 C.F.R. § 3.159 (c) (implementing regulation).  Part of this duty includes obtaining "relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain."                   38 U.S.C. § 5103A (c)(1)(C).  VA's implementing regulation specifically lists SSA records among the Federal agency records that VA is obligated to attempt to obtain. 38 C.F.R. § 3.159 (c)(2).  

The matters are REMANDED for the following actions:

1. Make an additional attempt to obtain from SSA any and all records pertaining to the appellant.  The requested records should include all determinations and copies of all medical records considered in deciding any SSA disability claim.  If the records are not available, that should be documented in the record.

2. Then, readjudicate the issue on appeal.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Casadei, Counsel 

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.