Citation Nr: 21076387 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-59 204 DATE: December 23, 2021 REMANDED Entitlement to an increased rating for invertebral disc syndrome (IVDS) (10 percent from October 3, 2012) is remanded. Entitlement to an increased rating for bilateral pes planus (10 percent prior to June 2, 2021, and 30 percent from that date) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2007 to June 2008, from January 2012 to October 2012, and from October 2016 to September 2017. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2014 Department of Veterans Affairs (VA) rating decision (which assigned a 10 percent evaluation for tinnitus, IVDS, bilateral pes planus, and denied service connection for bilateral hearing loss, a left knee condition, swollen bilateral calves, right rotator cuff syndrome, neck pain, left shoulder strain, and a respiratory condition). In August 2021, a Board noted the that the Veteran withdrew his claims involving a left shoulder strain, right rotator cuff syndrome, a neck disorder, a left knee disorder, bilateral swollen calves, bilateral hearing loss, and a respiratory disorder. The August 2021 Board decision denied entitlement to an earlier effective date (prior to October 3, 2012 the date of claim for service connection) for the award of service connection for IVDS, bilateral pes planus, and a rating in excess of 10 percent for tinnitus. The August 2021 Board decision remanded the issues of IVDS and bilateral pes planusfor the AOJ to readjudicate based upon the new evidence of record. In the interim, an August 2021 rating decision assigned an evaluation of 30 percent disabling for bilateral pes planus effective June 2, 2021 and an October 2021 rating decision granted service connection for right foot plantar fascitis with an evaluation of 10 percent effective from July 8, 2021; and assigned a 30 percent combined evaluation of bilateral pes planus with right foot plantar fascitis effective from July 8, 2021. Discussion Upon review of the evidence of record, the Board finds that the matters (as articulated above) must be remanded for additional evidentiary development. The AOJ issued the supplement statement of the case (SSOC) in August 2021. However, the AOJ did not address the most recent (July 2021) VA examinations to allow the Veteran and his representative to provide a meaningful response. These examinations are relevant because they apply to both issues on appeal and resulted in an increase in the assigned ratings for bilateral pes planus (and combined for purposes of evaluation bilateral pes planus with right foot plantar fascitis.) The record does not contain a valid waiver of AOJ initial consideration. When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case (SOC) or a SSOC, the must include a robust discussion of such. 38 C.F.R. § 19.31(b)(1). If, as in the instant case, evidence is received prior to the transfer of a case to the Board, a SSOC must be furnished to the Veteran and his representative, if any (as provided in 38 C.F.R. § 19.31), unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37(a). Furthermore, there is contradicting evidence of record as to whether the Veteran is in receipt of Social Security Administration (SSA) benefits. The AOJ's April 2021 inquiry received a negative response. However, in response to a June 2021 follow-up, SSA responded that the Veteran's health records could not be provided as protocols and procedures were not followed in preparation the request. As Federal subagency documents, SSA records are constructively of record, and the Board is obligated to obtain them when there is a reasonable possibility that they could help the Veteran substantiate a claim for VA benefits. Golz v. Shinseki, 590 F. 3d 1317 (Fed. Cir. 2010). Stated differently, the Board cannot render a fully informed decision without determining the possible relevance (and possible probative value) of SSA records, if they are, in fact, extant. See Ardison v. Brown, 6 Vet. App. 405 (1994). The matters are REMANDED for the following action: 1. The AOJ must follow all required procedure to procure should from the SSA both a determination on the Veteran's claim for SSA disability benefits and, should they be extant, copies of the complete medical records considered in connection with any SSA determination. If such records are unavailable, the AOJ should provide a formal finding as to all of the steps undertaken and whether further attempts to procure the records would be futile. 2. Ensure that all directed development is completed, and then re-adjudicate the claim seeking an increased rating for IVDS and bilateral pes planus, issuing an appropriate SSOC, specifically addressing the July 2021VA examinations in the matters and any other evidence relevant to the instant claims. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Lederman 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.