Veteranclaims’s Blog

January 12, 2012

Single Judge Application, Case Similar to Shade v. Shinseki, 24 Vet.App.(2010)

Filed under: Uncategorized — veteranclaims @ 5:48 pm

Excerpt from decision below:
“If the Board construes “raises a reasonable possibility of substantiating
the claim” as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted).
This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant’s claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant’s PTSD claim because it relates to and serves to substantiate the claim’s unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant’s claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, “it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be
6

provided with a medical nexus examination by VA”).
The Secretary cites to no caselaw for the proposition that the Board’s
erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran’s lay testimony that the stressor is related to “fear of hostile military or terrorist activity”), and its impact on the disposition of the new-and-material- evidence issue in this case.
Irrespective of Ervin, the appellant has proffered sufficiently new and
material evidence to reopen his PTSD claim and obtain the full benefit of VA’s duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board’s finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0096
JOHN W. WILLIAMS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, veteran John W. Williams, appeals through
counsel a
September 29, 2009, Board of Veterans’ Appeals (Board) decision that
denied his claim for
entitlement to service connection for vision disorder, right ear hearing
loss, pinched nerves, gout,
and a disorder manifested by constipation. Record of Proceedings (R.) at 3-
19. The Board decision
also rejected the appellant’s claim for entitlement to service connection
for post-traumatic stress
disorder (PTSD) based on new and material evidence. R. at 16. This appeal
is timely, and the Court
has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a).
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
following reasons, the Court will affirm in part, reverse in part, and
vacate in part the Board’s
decision and remand the matter for further adjudication.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from February 1969 to
October 1970,
with service in Vietnam. R. at 529. In 1996, the appellant filed a claim
for entitlement to service
connection for a back injury. R. at 429-32. As evidence, the appellant
submitted private medical
records documenting treatment he received for various back ailments in
1990 and 1991. R. at 448,

455, 481. The VA regional office (RO) denied the appellant’s claim
because “th[e] condition neither
occurred in nor was caused by service.” R. at 418. The RO explained that
the appellant’s service
medical records did not indicate complaints of back problems or treatment
for a back injury. Id.
Instead, the relevant treatment reports, accordingto the RO, suggested
that the appellant first injured
his back when he slipped and fell on ice in January 1989. Id.; see also R.
at 448. The RO’s decision
became final after the appellant failed to appeal the RO’s September 1997
Statement of the Case
(SOC). R. at 379-85.
In May 2000, the appellant was hospitalized with complaints of nightmares,
auditory and
visual hallucinations, depression, and sleep disturbances. R. at 339-42,
351-65. The appellant
reported having suicidal and homicidal ideation less than two weeks prior.
Id. The appellant also
stated that he was previously diagnosed with PTSD. R. at 345; see also R.
at 350. The appellant
was referred to a psychiatrist for further evaluation. R. at 365.
Several times during his May 2000 hospital stay, the appellant reported
other ailments to his
examiners. The appellant reported bowel problems and sometimes bleeding
from his rectum. R. at
364. The appellant also stated that the sun hurt his eyes and that he saw
color spots. R. at 354, 365.
One physician speculated that the appellant’s color spots may be
considered a visual hallucination.
R. at 365.
In June 2000, the appellant filed a claim seeking service connection for
his PTSD. R. at 372-
76. The appellant submitted a letter from an acquiantance who described
his behavior upon
returning from Vietnam, his “hyper and paranoid” attitude, and sleeping
problems. R. at 330-31.
The appellant also submitted a PTSD questionnaire in which he identified
his drinking problem and
alcohol-related disciplinary action as having contributed to his PTSD. R.
at 318-19. The appellant
denied that any casualties or injuries caused his PTSD. R. at 319.
In September 2001, the RO denied entitlement to service connection because
no evidence
demonstrated an in-service stressor and “there [was] no evidence to show a
diagnosis of PTSD.” R.
at 263. The appellant failed to appeal this decision and thus it became
final.
InJuly2004,theappellantfiledanother claim,seekingserviceconnection
forpinchednerves
and gout. R. at 250. The appellant also sought to reopen his PTSD claim.
Id. The only location
for treatment of these conditions the appellant identified was the
Fayetteville, North Carolina VA
2

hospital. R. at 250, 254-55. The appellant also stated that he’d been
receiving Social Security
Administration (SSA) disabilitybenefits since 1997. R. at 240, 248; see
also R. at 175. The medical
records obtained from the Fayetteville VA hospital indicated that he had
been diagnosed with
depression and that his PTSD screen indicated PTSD. R. at 175, 205.
In November 2004, the RO denied the appellant’s claims. R. at 145-50. The
RO found no
evidence of a medical diagnosis or treatment for pinched nerves or gout. R.
at 146-48. The RO also
found that, although medical records from the Fayetteville VA hospital
were new, they were not
material because they failed to evidence a diagnosis of PTSD or
corroborate an in-service stressor.
R. at 149-50. In March 2005, the appellant asserted new claims for
constipation, right-ear hearing
loss, and poor vision. R. at 138. After the appellant failed to submit any
further evidence, the RO
adjudicated and denied all of his claims in December 2005. R. at 114-20.
The appellant filed a
Notice of Disagreement in April 2006. R. at 109. The RO in turn issued its
Statement of the Case
in January 2007. R. at 81-103.
That same month, the appellant filed an appeal to the Board and requested
a hearing. R. at
77-79. At the appellant’s July 2009 hearing, he stated that his right-ear
hearing loss “comes from
firing a weapon while [he] was in the war,” and that his hearing loss ”
progressed ever since I been
out of service.” R. at 28-29. The appellant confirmed that he had not been
provided an audiological
examination. Id.
When questioned about his vision disorder, the appellant exclaimed “I see
. . . blurry spots
sometime[s]. My sight goes almost blind and it comes back.” R. at 30. A
private physician,
according to the appellant, stated that his vision was “not good.” R. at
31. The appellant continued:
“I also have a sleeping disorder, I have nights w[h]ere I see different
things. I see different visions
and stuff in my sleep. I have nightmares.” R. at 30.
The appellant remarked that he did not know whether the blurry spots or
visions were due
to PTSD. Id. The appellant also admitted that he had no “other medical
diagnosis associated with
[his] eyes,” but he alleged that his current eye problems developed in
service. R. at 32.
The appellant also claimed that his constipation began in service and
continued to this day.
R. at 33. The appellant conceded, however, that no specific disorder was
diagnosed in connection
with his constipation. Id. The appellant also denied seeing a physician
for the problem, but testified
3

that he used Dulcolax to alleviate his symptoms. R. at 34.
Proceeding to the gout claim, the appellant testified that he was
diagnosed with gout in
service and has suffered with the pain since that time. R. at 40.
Regarding his pinched-nerves claim,
the appellant stated that “I got four pinched nerves and a twisted spine”
while in service. R. at 42.
The appellant confirmed that he was receiving treatment for his pinched
nerves at the Fayetteville
VA Hospital. R. at 43.
Turning to the PTSD claim, the hearing officer asked the appellant to
identify a specific
trauma or stressor. R. at 44. The appellant responded: “Well, well, just a,
just the total experience
of being over there in a, in a war zone and stuff and uh, the things I
seen, I guess I developed it like
that.” Id. When asked for specifics, he answered: “Dead bodies, uh a
bunch of bombing,
explosions.” Id. The appellant advised the Board member that, while in
Vietnam, he had been
stationed at Tiger Hill and Cam Ranh Bay. R. at 46.
The Board’s September 2009 decision denied all of the appellant’s claims.
R. at 3-19. The
Board concluded that the in-service and postservice records did not
establish a diagnosis for the
alleged right-ear hearing loss, constipation, gout, and pinched-nerve
conditions. R. at 9-11. Absent
evidence of such conditions, the Board found further development futile. R.
at 10. The Board also
determined apart from a notation of poor vision that in-service and
postservice medical records were
devoid of evidence of an eye injury. R. at 11.
Regarding the PTSD claim, the Board found that while the medical records
were new, they
were not material because “they provide[d] no support for the occurrence
of the claimed in-service
stressors or that PTSD has been definitively diagnosed.” R. at 15. With
regard to the notation of
PTSD by a Fayetteville VA hospital physician, the Board reasoned “that the
medical reference of
PTSD contained in the record is based solely on history reported by the
Veteran,” and that “the
primary psychiatric diagnosis [was] apparently associated with depression.”
Id.
The Board further explained that the appellant’s testimony was “vague
. . . (seeing dead
bodies and being near explosions during service),” and that he had not ”
revealed useful information
which would aid VA in verifying his claimed in service stressor.” Id.
Given that the appellant had
been found to have not engaged in combat, the Board viewed the appellant’s
statements as “not []
sufficient to establish the occurrence of the alleged stressor.” Id. This
appeal followed.
4

II. ANALYSIS
A. New and Material Evidence: PTSD
The appellant contends that the Board erred in refusing to reopen his PTSD
claim.
Appellant’s Brief (Br.) at 6-8. First, the appellant argues that the Board
erred in deciding that the
positive PTSD screen was not material because the primary psychiatric
diagnosis of the report in
question was depression. Appellant’s Br. at 7; see also R. at 15. In
essence, the appellant maintains
that the positive PTSD screen was sufficient to reopen the claim because
it related to an
unestablished fact necessaryto substantiate the claim. See 38 C.F.R. § 3.
156(a) (2011). Second, the
appellant maintains that the Board erred in finding that his lay testimony
was vague, unhelpful, and
ultimately would not “aid in the verification of any claimed in-service
stressor.” R. at 15; see also
Appellant’s Br. at 7. The appellant submits that corroboration does not
require an overly detailed
account of a stressor event, contrary to the Board’s prescription.
Appellant’s Br. at 8.
In response, the Secretary acknowledges that the Board “impermissibly”
skipped “the
reopening phase and [went] straight to adjudication on the merits,” but
argues that such “error is
immaterial[] because the evidence submitted does nothing to corroborate
any purported in-service
stressor.” Secretary’s Br. at 12. Specifically, the Secretary asserts that
the appellant’s lay testimony
of an in-service stressor – his observance of “dead bodies, uh a bunch
of bombing, explosions” and
the “total experience of being over there in a, in a war zone” – was
insufficiently precise to
demonstrate an in-service stressor, and therefore to prompt additional
development to determine
whether an in-service stressor occurred. Secretary’s Br. at 13. Without
such precise evidence, the
Secretary reasons, any error by the Board in evaluating the positive PTSD
screening is immaterial.
Secretary’s Br. at 12-13.
To be eligible for service connection for PTSD, a claimant must satisfy”
three elements”: (1)
A medical diagnosis of PTSD; (2) credible supporting evidence that the
claimed in-service stressor
actually occurred; and (3) medical evidence of a causal nexus between
current symptomatology and
the specific claimed in-service stressor. Cohen v. Brown, 10 Vet.App. 128,
138 (1997). In this case,
the original decision denying service connection for PTSD explained that
the appellant failed to
provide evidence of an in-service stressor, but also that the “there [was]
no evidence to show a
diagnosis of PTSD.” R. at 263. As the Secretary would have it, the Board
need not reopen this
5

claim unless the appellant proffers new evidence that relates to both
unestablished elements
identified by the original decision as the basis for denial: (1) Evidence
of a PTSD diagnosis; and (2)
evidence of an in-service stressor. Secretary’s Br. at 12. This is not the
law.
In Shade v. Shinseki, 24 Vet.App. 110, 119-20 (2010), the claimant
submitted evidence of
a present diagnosis of a chronic skin disorder as qualifying to reopen his
claim for service connection. The Board there reasoned that “because the newly submitted evidence pertained only to the unestablished fact of a current diagnosis, but not to the other unestablished fact of a nexus between that diagnosis and service, the evidence submitted by the appellant was not new and material.” Id. The Shade court disabused the Board of this faulty logic:
The threshold established by § 3.156(a) requires the Board to analyze
whether the new evidence presented “raises a reasonable possibility of substantiating the claim.”
If the Board construes “raises a reasonable possibility of substantiating
the claim” as a requirement that the appellant submit his own medical nexus evidence to reopen his claim, even though he has provided new and material evidence concerning any other missing element, it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be provided with a medical nexus examination by VA. Id. at 119-21 (emphasis supplied) (citations omitted).
This case presents a situation similar to the facts of Shade itself. See id. at 119-22. As in Shade, the RO originally denied the appellant’s claim for failing to establish two of three necessary elements. See id. at 111; R. at 263. Thereafter, as in Shade, the appellant proffered new, competent evidence to establish the element of a current PTSD diagnosis – a positive PTSD screen – which was one of the reasons the claim was originally denied. R. at 205, 263. Such evidence, as explained in Shade, 24 Vet.App. at 121, suffices to reopen the appellant’s PTSD claim because it relates to and serves to substantiate the claim’s unestablished present diagnosis element. See Cohen, 10 Vet.App. at 138; see also 38 C.F.R. § 3.156(a). By effectively proceeding directly to the merits of the appellant’s claim, the Board not only fails to correctly apply the mandate of section 3.156(a), but it also deprives the appellant the opportunity to further develop evidence of the unestablished in-service stressor element. Cf. Shade, 24 Vet.App. at 120 (reasoning that if a claimant is required to submit his own medical nexus evidence to substantiate an unestablished element of the claim, “it would force the veteran to provide medical nexus evidence to reopen his claim so that he could be
6

provided with a medical nexus examination by VA”).
The Secretary cites to no caselaw for the proposition that the Board’s
erroneous analysis of the materiality of the positive PTSD screening is nonprejudicial because the appellant purportedly failed to proffer sufficient material evidence to advance a separate element of his PTSD claim. What is more, the Secretary failed to acknowledge or notify the Court of the intervening authority in Ervin v. Shinseki, 24 Vet.App. 318, 324 (2011)(applying to pending cases an amendment that permitted establishment of an in-service stressor via a veteran’s lay testimony that the stressor is related to “fear of hostile military or terrorist activity”), and its impact on the disposition of the new-and-material- evidence issue in this case.
Irrespective of Ervin, the appellant has proffered sufficiently new and
material evidence to reopen his PTSD claim and obtain the full benefit of VA’s duty to assist. See Shade, 24 Vet.App. at 119-21. Accordingly, the Court will reverse the Board’s finding on this issue and remand the matter to permit further development and evaluation of the merits in accordance with Ervin.

B. Disorder Manifested by Constipation
The appellant contends that the Board failed to provide adequate reasons
or bases for its decision to deny service connection for a disorder manifested by constipation. Appellant’s Br. at 10-12. Specifically, the appellant contends that the Board failed to explain why he was not competent to observe and therefore diagnose constipation. Appellant’s Br. at 10-11.
Furthermore, the appellant
argues that, because he was referred to a psychiatrist on the same dayhe
complained of constipation,
“[t]he record raises some question as to whether gastrointestinal
complaints may be related to” his
PTSD claim, and thus such claims should be remanded together. Appellant’s
Br. at 11.
In response, the Secretary argues first that, although constipation is a
disorder capable of
being observed bya layperson, it is not a “disability” for which a
claimant maybe service connected.
Secretary’s Br. at 19-20. Second, the Secretary notes that the physician
who referred the appellant
to a psychiatrist did not connect his constipation to his psychiatric
symptoms and, in any event,
constipation may be considered separately from PTSD and therefore should
not be remanded for
joint consideration. Secretary’s Br. at 20-21.
The Board determined that service connection for a disorder manifested
byconstipation was
unwarranted because the appellant “[n]ever received [a] competent medical
diagnos[i]s” and also
7

lacked “competent medical evidence which [would] causally relate[] [any
diagnosis] to service.” R.
at 9-10. However, the Board failed to acknowledge and discuss the
appellant’s lay testimony at the
July 2009 hearing that his constipation began “after basic training” and
continued to the present or
complaints of constipation the appellant registered during treatments
before he filed his claim. R.
at 33, 364; see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir.
2007) (holding that lay
evidence maybe used to diagnose a condition where a layperson is competent
to identifythe medical
condition). The Board did not address whether the appellant was competent
to identify his
constipation and whether his lay statements would be sufficient to
establish service connection.
The Secretary maintains that the Board’s failure was irrelevant because VA
does not
recognize a constipation “disability” for which the appellant may be
service connected. Secretary’s
Br. at 20. However, the Board did not articulate this position, either.
Instead, the Board treated the
claim as thoughit could be service connected, repeatedlyreferring to it as ”
residuals of constipation”
and “a disorder manifested by constipation.” R. at 9-10. Furthermore, as
the appellant submits, irritable bowel syndrome is a disability of which constipation is a symptom and which the appellant may presumably be competent to diagnose, see 38 C.F.R. § 4.114, Diagnostic Code 7319 (2011), but because the Board also failed to address this issue as well, the Court may not speculate. See Jandreau, 492 F.3d at 1377 (“Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans’ Court.”).
In any case, the Board failed to provide adequate reasons and bases for
its failure to discuss
this evidence, see Allday v. Brown, 7 Vet.App. 517, 527 (1995), and
vacatur and remand is
warranted. On remand, consistent with the duty to assist articulated in
McLendon v. Nicholson,
20 Vet.App. 79, 81 (2006), the Board must consider whether an examination
is warranted to dispose
of this claim. The Court will accordingly forego discussion of the
appellant’s remaining theory of Board error. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam).

C. Vision Disorder
The appellant next argues that the Board erred in failing to find that
VA’s duty to assist was breached when the Board hearing officer failed to suggest that the appellant obtain private medical records pertaining to his purported vision disorder. Appellant’s Br. at 12.
The Secretary responds
8

that, even assuming the Board member improperly failed to suggest
evidence, the appellant was not
prejudiced by any error because the private medical records only involved
poor eye sight and the
provision of reading glasses, neither of which are conditions eligible for
service connection.
Secretary’s Br. at 22-23.
While it is true, as the appellant notes, that the Board member did not
advise the appellant to obtain his private medical records pertaining to his vision problems, the appellant has not demonstrated that the Board member had a duty to suggest evidence. Since this Court decided
Bryant v. Shinseki, 23 Vet.App. 488, 498 (2010), VA amended 38 C.F.R. §§
3.103, 20.706 to reflect that the duty to suggest evidence was limited to “hearings conducted before the VA office having original jurisdiction over the claim.” The Board committed no error, in turn, in failing to ascribe a breach of the duty to suggest evidence to the Board hearing officer.
Even if the duty to suggest evidence remained binding on Board members,
however, the duty is nevertheless subject to the rule of prejudicial error. See Bryant, 23 Vet.App. at 498. As such, as the Secretary argues, the Court must consider “whether the appellant was prejudiced by the Board’s errors.” Id. Here, the appellant confirmed that his private physician merely advised that he would need glasses to assist with refractive error. R. at 30-31 (private
physician “said my vision [is] not
good” and that the appellant “need[ed] glasses”). Because refractive error
is not a “disease[] or
injur[y]” eligible for service connection, see 38 C.F.R. § 3.303(c) (2011
), the failure to suggest
evidence in support of such a condition does not prejudice the appellant.
See Bryant, 23 Vet.App. at 499 (indicating that the failure to suggest relevant evidence is the touchstone of prejudicial error).
Thus, even if the Board hearing officer were so obligated, any failure to
suggest evidence would not be a remandable error.
The appellant also claims that the record suggests that his claim for
vision disorder is inextricably intertwined with his PTSD claim, and therefore his vision disorder claim should be remanded along with his PTSD claim. Appellant’s Br. at 12-13. The appellant fails to explain how his vision claim is inextricably intertwined with his PTSD claim, however,and thus fails to carry his burden of providing adequate support for his argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments); Coker v.
Nicholson, 19 Vet.App. 439, 442 (2006), rev’d on other grounds sub nom.
Coker v. Peake, 310 F.
9

App’x 371 (Fed. Cir. 2008) (stating that an appellant must “plead with
some particularity the allegation of error so that the Court is able to review and assess the validity of the appellant’s arguments”). The Court must, therefore, reject this argument and affirm the portion of the Board’s
decision regarding the appellant’s claim for vision disorder.

D. Depression
The appellant argues that the Board failed to explain why his effort to
reopen his PTSD claim was not regarded as encompassing a new claim for service connection for depression in light of his acknowledged depression diagnosis. Appellant’s Br. at 10. Because, as discussed above, the Court is reversing the Board’s decision on the appellant’s PTSD claim and remanding the matter to allow adjudication on the merits, the Board must also determine whether the appellant in fact asserted a claim for entitlement to service connection for depression, consistent with Clemons v. Shinseki, 23 Vet.App. 1, 5 (2009). The Court will therefore forego discussion of this argument. See Best,15 Vet.App. at 20.

E. Pinched Nerves and Right-Ear Hearing Loss
The appellant argues that the Board failed to explain why the record
evidence of right-ear hearing loss does not entitle the appellant to a medical examination. Appellant’s Br. at 13-14. The
Secretary agrees with the appellant and argues in favor of remand.
Secretary’s Br. at 28-29.
Similarly, the parties agree that the Board failed to address whether the
appellant’s evidence of
treatment for various back ailments in 1990 and 1991 is relevant to his
claim for pinched nerves, and that the Board erroneously failed to procure his SSA records, which appear relevant to his pinched nerves claim. Appellant’s Br. at 14; Secretary’s Br. at 27. Accordingly, the Court will remand both claims.

F. SSA Records
The appellant argues that the Board erroneously failed to obtain his SSA
records with respect to his constipation, vision disorder, and gout claims.1
Appellant’s Br. at 14-15. The Secretary responds that the Board was not required to procure SSA records for claims other than those for

1 The appellant also seeks procurement of his SSA records to support his
PTSD, right ear hearing loss, and pinched nerves claims, but because the Court is remanding these claims, he is free to argue before the Board the relevance of his SSA records to such claims.

10

which the appellant was receiving benefits. Secretary’s Br. at 24-26.
The Board’s duty to obtain Federal records is limited to Federal records
for which there is reason to believe that such records “may give rise to pertinent information.” Golz v. Shinseki, 590 F.3d 1319, 1323 (Fed. Cir. 2010). The evidence demonstrates that the appellant received SSA benefits “for back problems” (R. at 175), but there is no indication that the Board evaluated whether the appellant’s SSA records may give rise to information pertinent to his constipation, vision disorder, and gout claims. Absent an adequate discussion by the Board of
the grounds for failing to
obtain the appellant’s SSA records for the aforementioned claims, a remand
is warranted. See
Allday, 7 Vet.App. at 527.

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the September 29, 2009, Board decision is AFFIRMED IN PART,
REVERSED IN PART,
VACATED IN PART and the reversed and vacated matters REMANDED for further
adjudication.
DATED: December 29, 2011
Copies to:
Jeany Mark, Esq.
VA General Counsel (027)
11

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