Citation Nr: 21015065 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-29 538 DATE: March 16, 2021 REMAND Whether new and material evidence has been received to reopen the claim for entitlement to service connection for sleep apnea is remanded. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right foot disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected migraines is remanded. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1988 to January 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A Board hearing was conducted via videoconference with the RO in Winston-Salem, North Carolina. A transcript of this hearing is contained within the electronic claims file. See January 25, 2021, Hearing Transcript (Tr.). VA’s duty to assist includes assisting the claimant in the procurement of relevant records in the custody of federal agencies. 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(2). This duty ends only where the records either are obtained or it is determined that such records do not exist or that further efforts to obtain them would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). These records include those in the custody of the Social Security Administration (SSA). Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Furthermore, a veteran placing VA on notice of medical records not associated with the claims file, while not necessarily new and material evidence, triggers VA’s duty to assist before VA can determine whether reopening a claim is warranted. Ivey v. Derwinski, 2 Vet. App. 320, 322–23 (1992). These issues were the subjects of Statements of the Case in May and June 2017. A review of the claims file shows that VA last uploaded the Veteran’s VA medical center (VAMC) records in April 2019. At his hearing, the Veteran testified that there both were more recent VAMC records and that he currently receives disability from SSA. See Tr. 4, 9. The undersigned Veterans Law Judge (VLJ) informed the Veteran that, unless the Veteran could obtain those records and submit them for review, remand would be unavoidable. See id. at 5. Because the Board has knowledge that there may be outstanding VAMC and SSA records, and because VA last adjudicated these claims in 2017 (two years before substantial amounts of medical records were added to the claims file), remand is required so that VA can fulfill its duty to assist and to provide VA the opportunity to review the more recent evidence. See 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(2), 20.904(a), 20.1305(c). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Obtain any outstanding SSA records. Should they exist, associate them with the claims file. 3. Provide to the Veteran a complete application package for a claim for TDIU. 4. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.