Citation Nr: 21016128 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 16-15 762 DATE: March 19, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for thoracic strain with degenerative disc disease of the lumbar spine. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1987 to February 1994. He had additional service from February 1994 to March 1996, which VA determined was under dishonorable conditions for VA benefits purposes. These matters initially came before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the issues of entitlement to service connection for degenerative disc disease of the cervical spine and lumbar spine, as well as the claim for increased rating for thoracic spine strain, to the agency of original jurisdiction (AOJ) for additional development. In a July 2020 rating decision, the AOJ granted service connection for degenerative disc disease of the cervical spine, which represents a full grant of the issue previously on appeal. In addition, the AOJ granted service connection for degenerative disc disease and combined the rating for the disability with the previously service-connected thoracic strain. The Board has characterized this issue accordingly, as noted on the title page. Although the Board regrets the delay, upon review of the claims file, the Board finds that additional development on the appeal is warranted. 1. Entitlement to an increased rating for thoracic strain with degenerative disc disease of the lumbar spine is remanded. VA treatment records reflect that the Veteran is on Social Security disability. While Social Security Administration (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 of the possible existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak, supra; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Accordingly, remand is warranted to obtain outstanding SSA records. 2. Entitlement to a TDIU is remanded. VA treatment records also reflect that the Veteran is unemployed, which the Veteran has reported is a result of physical impairment, to include impairment stemming from his service-connected lumbar/thoracic spine disorder. For example, a May 2012 VA treatment record notes that the Veteran was reportedly not able to work due to lumbar and cervical problems. The law provides that a TDIU may be granted upon a showing that the Veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his or her service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for individual unemployability is part of an increased rating claim when such claim is raised by the record. Thus, a claim for TDIU is a component of the increased rating claim on appeal before the Board. Accordingly, the Board has jurisdiction over this issue. As SSA records may be relevant to this claim, remand of this issue is also warranted. While on remand, the AOJ should also develop the TDIU claim, including sending the Veteran the appropriate letter to ensure compliance with all notice and assistance requirements. The Veteran should be advised to submit a VA Form 21-8940 and submit any related employment records, or information and authorization to obtain any relevant records. The matters are REMANDED for the following action: 1. The AOJ should request that SSA furnish a copy of its decision awarding the Veteran disability benefits, as well as copies of all medical records underlying that determination. 2. Assist the Veteran in associating with the claims folder updated treatment records. 3. Send an appropriate letter to the Veteran to ensure compliance with all notice and assistance requirements with respect to his TDIU claim. The AOJ should forward the appropriate forms, VA Form 21-8940 and VA Form 21-4192 for completion. Any relevant employment records identified should be obtained, and any additional development deemed necessary with regard to the claim for TDIU should be undertaken. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.