Citation Nr: 1300352 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 08-09 834A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Francis M. Jackson, Attorney at Law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to May 1977. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Togus, Maine, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO, among other things, denied entitlement to service connection a low back disorder and head injury residuals. In June 2009, the Veteran testified at a videoconference hearing before the undersigned. A transcript of that hearing is of record. In November 2009, the Board, inter alia, denied entitlement to service connection for a low back disorder and for residuals of a head injury. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2011 memorandum decision, the Court vacated the Board's November 2009 decision with respect to the issues of entitlement to service connection for a low back disorder and for head injury residuals, and remanded these claims for further development and adjudication that was consistent with that decision. In June 2012, the Board remanded the claims to the RO for a Board hearing. In August 2012, the Veteran testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. During the Board hearing, the Veteran testified to symptoms that raise claims that have not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Those claims will be discussed below and will be referred to the AOJ for appropriate action. During an August 2012 Board hearing, the Veteran reported symptoms which he attributes to his in-service injury. These symptoms included headaches, vertigo and dizziness, the latter of which purportedly caused him to fall and break his ankle. He also reported light sensitivity, anxiety and depression. Further, he described symptoms that he suggested may be related to his service-connected cervical spine disability, to include upper extremity numbness. Finally, he raised several contingent claims based upon the issues addressed below. Hence, the issues of entitlement to service connection for an acquired psychiatric disorder secondary to in-service head injury, entitlement to service connection for residuals of a traumatic brain injury, and entitlement to an increased rating for cervical spine disability to include upper extremity peripheral neuropathy have been raised by the evidence of record, but have not been adjudicated by the AOJ. Should service connection be granted for residuals of a head injury to include vertigo, the RO must adjudicate the issue of entitlement to service connection a right ankle disorder secondary to vertigo. Should service connection be granted for a low back disorder the RO must specifically address the appellant's entitlement to service connection for lower extremity radiculopathy secondary to the low back disorder. All of these claims are therefore referred to the AOJ for appropriate and prompt action. Based on the instructions in the Court's October 2011 decision, the claims of entitlement to service connection for a low back disorder and head injury residuals are REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND As noted by the Court, the Veteran described an in-service head injury. He reported being treated for the injury at a Fallon Naval Air Station medical facility, and he provided a relatively small window of time during which he believed that he received this treatment. He requested that VA attempt to obtain all records of his admission and treatment at Fallon Naval Air Station. Thereafter, the RO initially requested from the National Personnel Records Center any records from the Fallon Naval Air Station medical facility pertaining to the Veteran, whose service number was provided, and "head and spine injuries-barracks injury" between January 21, 1973, and February 13, 1973. In May 2006, the National Personnel Records Center responded that the Fallon Naval Air Station appeared to have an outpatient medical facility and that no search was possible based on the information furnished. According to the Court, it did not appear that the RO followed up with the National Personnel Records Center in an effort to resolve this ambiguity so that a search for the records could be conducted. Instead, the RO directly contacted the Fallon Naval Air Station medical facility in an effort to obtain the records, but was informed that any such records from 1973 would have been sent to the National Personnel Records Center. According to the Court, this information should have directed the RO's efforts back to the National Personnel Records Center in an effort to determine what additional information was needed to conduct a search. Instead, the RO made a formal finding that the records were unavailable and that further efforts to obtain them would be futile. Considering that the Fallon medical facility also informed the RO that any such records would have been sent to the National Personnel Records Center, and that the National Personnel Records Center previously indicated it had not been supplied with sufficient information to enable it to conduct a search for the records, the Court found that additional efforts are required to fulfill VA's duty to assist. The RO must therefore again request the Fallon Naval Air Station records from the time frame identified by the Veteran from the National Personnel Records Center and that all available information regarding those records is provided to the National Personnel Records Center. If the National Personnel Records Center is still unable to conduct a search based upon the information provided, the RO must determine what additional information is necessary, seek such information from the Veteran, and provide it to the National Personnel Records Center. If the National Personnel Records Center is ultimately able to conduct a search but determines that the records are unavailable or do not exist, a formal finding to that effect must be made by VA and the Veteran must be provided with the notice described in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). The Veteran submitted a November 2010 statement from fellow service member "J.B." regarding the purported in-service incident. The Court, which did not have this evidence before it, instructed that the RO suggest that the Veteran submit other forms of evidence that could support his allegation of an in-service injury as he has described, including statements from fellow service members. The RO should therefore again inform the Veteran that he can submit other forms of evidence that could support his allegation of an in-service injury, to include statements from any fellow service members who may have witnessed the incident, the severity of his resulting injury, and the treatment he received thereafter, in addition to the buddy statement already submitted. Further, based on the Court's October 2011 decision, the Veteran is entitled to a VA examination addressing the etiology of any low back disorder and any head injury residuals. Accordingly, the claims for service connection for a low back disorder and head injury residuals are REMANDED for the following action: 1. The RO should again request from the National Personnel Records Center any and all Fallon Naval Air Station records dating between January 21 and February 13, 1973 relating to the Veteran, to specifically include any pertaining to head or spine injuries allegedly suffered by the appellant. The RO must ensure that all available information regarding those records is provided to the National Personnel Records Center. If the National Personnel Records Center remains unable to conduct a search based upon the information provided, the RO must determine what additional information is necessary, seek that information from the Veteran, and provide it to the National Personnel Records Center. If the National Personnel Records Center is ultimately able to conduct a search but determines that the records are unavailable or do not exist, a formal finding to that effect must be made by VA and the Veteran must be provided with the notice described in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Send the Veteran a letter informing him that he can submit other forms of evidence that could support his allegation of an in-service injury as he has described, to include statements from any fellow service members who may have witnessed the incident, the severity of his resulting injury, and the treatment he received thereafter. This is in addition to the statement from J.B. already submitted. 3. Thereafter, schedule the Veteran for a VA orthopedic examination to address the etiology any diagnosed low back disorder. All necessary tests should be conducted. The examiner must be provided access to the claims file, Virtual VA and a copy of this remand. The examiner must first identify any low back disorder that has been diagnosed and/or any functional loss of the lumbar spine due to symptoms to include pain. With respect to any diagnosed lumbar disorder or loss of lumbar function, the examiner must opine whether it is as least as likely as not (50 percent probability or more) that such a disorder or functional loss is related to service, to include the alleged in-service fall described by the Veteran. A complete rationale must accompany any opinion provided. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with all of the other evidence of record, in formulating the requested opinion. 4. After completion of steps one and two schedule the Veteran for a VA neurological examination to address whether he has any residuals of an alleged in-service head injury. All necessary tests should be conducted. The examiner must be provided access to the claims file, Virtual VA and a copy of this remand. The examiner must address whether it is as least as likely as not (50 percent probability or more) that the Veteran has any head injury residual due to an alleged in-service fall of the type he has described, to include an acquired psychiatric disorder and/or residuals of a traumatic brain injury. A complete rationale must accompany the opinion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account, along with all of the other evidence of record, in formulating the requested opinion. 5. The Veteran is to be notified that it is his responsibility to report for all examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 , 3.655 (2012). 6. Upon completion of the foregoing and any additional development deemed appropriate, the RO/AMC must readjudicate the issues. If any benefit sought on appeal remains denied the RO must furnish the appellant and representative a supplemental statement of the case. If upon completion of the above action any benefit sought remains denied, the case should be returned to the Board after compliance with requisite appellate procedures, including issuance of a supplemental statement of the case. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).