Citation Nr: 18154145
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 15-12 206A
DATE:	November 29, 2018
ORDER
New and material evidence being submitted, the claim of entitlement to service connection for right knee patellofemoral pain syndrome is reopened.
New and material evidence being submitted, the claim of entitlement to service connection for a right-hand condition is reopened.
REMANDED
Whether new and material evidence has been received to reopen service connection for left knee patellofemoral pain syndrome is remanded.
Whether new and material evidence has been received to reopen service connection for bilateral pes planus is remanded.
Service connection for a right knee disability is remanded.
Service connection for a right-hand disability is remanded.
Service connection for right shoulder condition is remanded.
Service connection for right hip condition is remanded.
Service connection for cataracts is remanded.
An increased disability rating greater than 10 percent prior to November 13, 2016, and 30 percent thereafter for cervical spine arthritis is remanded.
An increased disability rating greater than 10 percent for thoracolumbar spine arthritis is remanded.
Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. An October 2008 rating decision denied service connection for right knee patellofemoral pain syndrome.  The Veteran did not appeal. 
2. At the time of the October 2008 rating decision, the record did not contain evidence showing a nexus between the Veteran’s right knee pain and her time on active duty.  Subsequent to that decision, the Veteran submitted a VA treatment record where she said her right knee pain has persisted since her time on active duty.  This VA treatment record is new and material and raises a reasonable possibility of substantiating the claim. 
3. An April 2002 rating decision denied service connection for muscle spasm, right hand (also claimed as carpal tunnel syndrome and tendonitis).  The Veteran did not appeal. 
4. At the time of the April 2002 rating decision, the record did not contain evidence of an in-service injury, event, or disease regarding her right hand.  Subsequent to that decision, the Veteran claimed in an April 2017 VA examination report that she was required to crawl with fire gear and carry a ladder.  As a result, she began having problems with her right wrist.  This VA examination report where the Veteran recited an in-service injury, event, or disease is new and material and raises a reasonable possibility of substantiating the claim.
CONCLUSION OF LAW
New and material evidence has been received to reopen the claims of entitlement to service connection for right knee and right-hand conditions.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 3.156, 20.302 (2017).
REASONS FOR REMAND
The Veteran served on active duty from October 1997 to April 1999.
The Veteran appeals June 2011 and September 2013 rating decisions by the Agency of Original Jurisdiction (AOJ) denying service connection for vision impairment, right hip condition, and right shoulder condition.  The AOJ also did not reopen service connection for right hand condition, bilateral pes planus, and bilateral knee condition.
The June 2011 rating decision also continued the Veteran’s 10 percent disability rating for cervical strain and assigned a separate, 10 percent rating for thoracolumbar strain, effective September 14, 2010. 
In an October 2017 decision review officer (DRO) decision, the AOJ increased the Veteran’s disability rating for cervical spine arthritis to 30 percent effective November 13, 2016.  When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  
The Veteran requested a hearing before the Board.  See April 2015 VA Form 9.  However, in May 2015, the Veteran submitted a statement indicating she wished to withdraw her hearing request.  Accordingly, the Veteran’s hearing request is withdrawn.  38 C.F.R. § 20.702(d) (2017).
The Board notes that in November 2015, the AOJ denied entitlement to service connection for temporomandibular joint (TMJ) disorder and right ankle condition.  Further, in July 2017, the AOJ determined the Veteran was not competent to handle disbursement of funds.  After the Veteran submitted timely notices of disagreement (NOD), the AOJ issued two letters acknowledging receipt and have undertaken further development of the issues.  Therefore, no action is warranted by the Board under Manlincon v. West, 12 Vet. App. 238, 240-41 (1991).
The Board finds that the evidentiary record may not be complete.  In June 2015, VA obtained Social Security (SSA) records from the SSA National Records Center.  A notice of reconsideration showed the Veteran was denied SSA disability benefits.  Specifically, she stated she could not work because of disabilities such as “cervical thoracic sciatica, right knee pain, cataracts, photophobia, tinnitus, cervical spondylosis, torn tendon of right hand and right ankle.”  See March 2015 SSA notice of reconsideration.
However, the Veteran has since stated she appealed this decision and had a hearing before an SSA Administrative Law Judge (ALJ) in June 2016.  Specifically, she said she was “currently in the appeal status for Social Security (ALJ hearing schedule in June 2016) for Disability and Income benefits.”  See October 2015 Veteran correspondence.
Where the record contains factual notice to VA that a Veteran may receive SSA benefits, VA has the duty to acquire a copy of the SSA records, including the decision granting SSA benefits and the supporting medical documentation, if they are relevant.  SSA records are relevant if either (1) there is an SSA decision pertaining to a medical condition related to the one for which the Veteran is seeking service connection or (2) there are specific allegations “giv[ing] rise to a reasonable belief” that the SSA records may pertain to the claimed disability.  Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Baker v. West, 11 Vet. App. 163 (1998). 
Here, the SSA records may be relevant to the Veteran’s service connection, increased rating, and TDIU claims.  Thus, on remand, the AOJ is to obtain any outstanding SSA records and associate them with the evidentiary record.
The matters are REMANDED for the following action:
1. Obtain any outstanding SSA records pertaining to the Veteran’s claim for disability benefits.  All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and her representative should be notified and the record clearly documented.
2. After the above has been completed to the extent possible, readjudicate the claims.  If any benefit sought remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC), and return the case to the Board.

 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Salazar, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.