Citation Nr: 0007087 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 94-32 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of a neck injury with associated headaches. 2. Entitlement to service connection for a bilateral knee disorder. 3. Entitlement to service connection for hearing loss in the left ear. 4. Entitlement to a higher initial evaluation for post- traumatic stress disorder (PTSD), rated as 10 percent disabling from September 8, 1992, and rated as 30 percent disabling effective from April 23, 1999. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from April 1966 to February 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of January 1993 by the Department of Veterans Affairs (VA) St. Louis, Missouri, Regional Office (RO). The Board notes that in a letter dated in October 1999 the veteran presented argument pertaining to a claim for an earlier effective date for restoration of benefits which were affected by his recent incarceration. However, the Board notes that this matter is not before the Board at this time and is referred to the RO for any appropriate action. REMAND The Board finds that there may be additional evidence available which is relevant to the issues on appeal. The Board notes that the veteran submitted a notification letter from the Social Security Administration (SSA) dated in November 1998 which shows that he was denied Supplemental Security Income benefits on the basis that the veteran was not found to be disabled. The letter indicates that the decision was based on VA medical records and on a report dated in October 1998 by James Armstrong, M.D. The latter medical evidence from Dr. Armstrong has not been presented or secured. During a hearing held in December 1998, the veteran indicated that he believed that a copy of the Social Security examination report which was prepared by Dr. Armstrong had been forwarded to the VA Medical Center in Kansas City. The RO subsequently requested medical records from that medical center; however, the records which were obtained did not include the report by Dr. Armstrong. No further efforts were made to obtain the report, such as contacting Dr. Armstrong directly or attempting to obtain a copy from the Social Security Administration. A person who submits a claim for benefits under a law administered by the VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Where service connection has already been established for a disability and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board finds that the veteran's claim for an increased rating for PTSD is well grounded within the meaning of 38 U.S.C.A. § 5107(a). Consequently, VA has a statutory duty to assist the veteran in the development of his claim mandated by 38 U.S.C.A. § 5107(a). Decisions of the Board must be based on all of the evidence that is known to be available. 38 U.S.C.A. §§ 5103(a), 7104(a) (West 1991 & Supp. 1999); see also Franzen v. Brown, 9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to assist claimant in filing his claim pertains to relevant evidence which may exist or could be obtained) and Epps v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches in cases where the record references other known and existing evidence that might pertain to the claim under consideration). As noted, the duty to assist the appellant in the development of his claim includes the duty to request information which may be pertinent to the claim. 38 U.S.C.A. §§ 5106, 5107(a) (West 1991). The duty to assist is particularly applicable to records which are known to be in the possession of the Federal Government, such as military service department and Social Security Administration records. See Counts v. Brown, 6 Vet. App. 473 (1994); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (in deciding a claim for an increased rating, SSA's decision is "pertinent" to a determination of a veteran's ability to engage in substantially gainful employment, quoting Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992)). As such, the Board must obtain all of the medical records upon which the SSA decision was based as such records may be relevant to the claim for an increased rating for PTSD. See Collier v. Derwinski, 1 Vet. App. 413 (1991). Moreover, in a written statement dated in June 1999, the veteran indicated that the SSA evidence would help to substantiate his service connection claims. As noted, the Board recognizes that there is some duty to assist the veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103 (West 1991 & Supp. 1999) even where his claims appear to be not well-grounded where a veteran has identified the existence of evidence that could plausibly well-ground the claim. See generally, Beausoleil v. Brown, 8 Vet. App. 459 (1996); and Robinette v. Brown, 8 Vet. App. 69 (1995), as modified in this context by Epps v. Brown, 9 Vet. App. 341, 344 (1996). In the instant case, however, the veteran has identified the medical records upon which the SSA decision was based as records which would support a well- grounded claim. Thus, the VA, at the least, has a duty to inform the veteran under 38 U.S.C.A. § 5103(a) to submit such records on his behalf. See Slater v. Brown, 9 Vet. App. 240, 244 (1996). However, since such records must be obtained in the context of the veteran's increased rating claim, the veteran need not necessarily be informed that he must submit such records. In any event, a Board decision on the service connection claims will be deferred at this time in light of these factors. Accordingly, the case is REMANDED to the RO for the following development: 1. The RO should obtain from the Social Security Administration the records pertinent to the appellant's claim for Social Security benefits and especially the examination report prepared by James Armstrong, M.D. in October 1998. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. After completing any additionally indicated action, and if any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action until notified. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. See Kutscherousky v. West, 12 Vet. App. 369 (1999). S. L. KENNEDY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1999).