Citation Nr: 21024094
Decision Date: 04/22/21	Archive Date: 04/22/21

DOCKET NO. 15-19 369
DATE: April 22, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for the Veteran’s right knee disability is remanded.

Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1977 to July 1980 and from May 1994 to June 1995. 

1. Entitlement to a rating in excess of 10 percent for the Veteran’s right knee disability is remanded.

2. Entitlement to TDIU is remanded.

Unfortunately, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration.

A review of the claims file shows that in December 2020 the AOJ obtained a Social Security Administration (SSA) Inquiry that the Veteran is receiving Social Security Income (SSI) payments. 

There is a difference between Social Security disability benefits and SSI. SSA disability benefits are based on a claimant’s age, employment history, and disability. 42 U.S.C. § 423; 20 C.F.R. §§ 404.1505, 404.1520. SSI benefits are based on age, disability, and income and resource limits. 42 U.S.C. § 1382; 20 C.F.R. § 416.920. The receipt of SSI carries with it the obligation to cooperate with required periodic redeterminations of eligibility, including in the form of medical examinations. See 20 C.F.R. §§ 416.204, 416.989, 416.990. While SSA records are not controlling for VA determinations, they may be “pertinent” to VA claims. See Collier v. Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Hence, when VA is put on notice of the existence of SSA records, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992).

Although the AOJ has already obtained some of the Veteran’s SSA records, this was in 2017. Medical examination is usually required every three years in order to recertify for SSI benefits. On remand, the AOJ should obtain any updated treatment records.

Additionally, remand is necessary for compliance with the prior Board remand instructions.  In the Board’s October 2020 decision, the agency of original jurisdiction (AOJ) was directed to obtain a new examination before readjudicating the issues of right knee and TDIU.  The AOJ readjudicated the issues in a supplemental statement of the case but did so before it obtained the examination.

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The matters are REMANDED for the following action:

Contact the Social Security Administration for the purpose of obtaining all additional medical records relied upon and any decision made in conjunction with the Veteran’s claim for Supplemental Security Income disability benefits.  All such available documents should be associated with the claims folder. Any negative responses must be documented.

 

 

P. Saindon

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A.D. Jackson, 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.