Citation Nr: 1300407 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 07-22 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial disability rating in excess of 10 percent disabling, for the period prior to January 23, 2009, and in excess of 70 percent disabling, for the period beginning January 23, 2009, for residuals of traumatic brain injury. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1988 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Jurisdiction over the Veteran's case was subsequently transferred to the St. Louis, Missouri RO. This case was previously before the Board in March 2010 and February 2012 when the case was remanded for further development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. For the reasons set forth below, the Board finds that additional development is required in this case. Review of the claims file reveals that in a psychological treatment note dated in July 2006 the Veteran was noted to be "treated/followed by a private sector physician for his medical problems, eg thyroid dysfunction." Review of the claims file does not reveal that private treatment records regarding the Veteran's medical problems dated subsequent to February 2003, with the exception of a Department of Labor assessment, have been obtained and associated with the claims file. In a VA treatment note dated in April 2009 the Veteran was noted to have been treated by a rehabilitation physician on January 23, 2009. Review of the claims file does not reveal that this treatment record has been obtained and associated. A VA Compensation and Pension (C&P) examination report dated in September 2009 provides a report of a September 2009 speech therapy evaluation. However, review of the claims file does not reveal that the treatment notes regarding the September 2009 speech therapy evaluation have been obtained and associated. In a Supplemental Statement of the Case, dated in December 2011, the evidence was noted to include VA Treatment Reports from the VA Medical Center in Kansas City, from November 1998 through November 2011. In addition, a VA C&P examination report, dated in August 2011 and signed in October 2011, indicates that the Veteran underwent separate neuropsychological testing in October 2011. However, review of the claims file does not reveal VA treatment records dated subsequent to October 2009. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United State Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts must be made to obtain complete VA treatment records regarding the Veteran. In addition, the Veteran should be asked to identify all private treatment and, after obtaining adequate authorization, attempts must be made to obtain and associate with the claims file all identified treatment. The VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, if an only if additional evidence not previously considered by the VA examiner in the VA examination report dated in August 2011 as amended in October 2011 and November, the Veteran should be afforded another VA medical examination regarding his traumatic brain injury. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain complete VA treatment records pertaining to the Veteran. 2. Contact the Veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claim. After obtaining any necessary authorizations from the appellant, attempt to obtain and associate with the claims folder any medical records identified by the Veteran. 3. Thereafter, if and only if additional treatment records are associated with the claims file, schedule the Veteran for an examination with regard to his claim for a higher evaluation for traumatic brain injury residuals. The claims folder must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests MUST be performed, and all findings reported in detail. The examiner is specifically requested to identify all brain injury residuals, and then to opine as to whether any brain injury residuals other than the Veteran's service-connected vascular headaches and migraines and panic disorder with agoraphobia, if found, are related to his head injury described in service treatment records. 4. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue the Veteran a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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). _________________________________________________ ROBERT E. SULLIVAN 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).