Citation Nr: 1302252 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-28 280 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a left heel disability. 2. Entitlement to service connection for residuals of a perforated left eardrum. 3. Whether new and material evidence to reopen a claim for service connection for residuals of right knee fracture has been received. 4. Whether new and material evidence to reopen a claim for service connection for residuals of left knee fracture has been received. 5. Entitlement to service connection for residuals of traumatic brain injury (TBI), also claimed as closed head injury. 6. Entitlement to service connection for residuals of whiplash trauma, also claimed as cervical spine injury and neck disability. 7. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1967 to March 1971. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO, inter alia, declined to reopen the Veteran's claims for service connection for right and left knee fracture residuals, as well as denied service connection for a left heel disability, residuals of perforated left eardrum, TBI, residuals of whiplash, and migraine headaches. In March 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in May 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in July 2009. Supplemental SOCs (SSOCs)were issued in January 2011 and February 2012. In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge (VLJ) at the RO. A copy of the transcript is of record. At the June 2012 hearing, the Veteran's representative submitted additional evidence to the Board, with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Regarding characterization of the matters on appeal, the Board notes that the RO characterized the Veteran's appeal as encompassing matters of entitlement to service connection for residuals of whiplash injury and service connection for a neck disability. However, the Veteran did not claim service connection for these two separate disabilities. See October 2006 claims form (Requesting service connection only for "neck condition."). Further, he clarified at the June 2012 hearing that his claimed neck disability was the residual of whiplash; the evidence of record does not indicate otherwise. In this case, the Veteran's claim of entitlement to service connection for residuals of whiplash injury encompasses his claim for a neck disability. Thus, consistent with the current record, the Board has recharacterized the appeal as set forth on the title page. See 38 C.F.R. § 19.35 (2012) (certification is for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction of an issue). As for the Veteran's petitions to reopen his claims for service connection for residuals of fractures to the right and left knees, these matters were characterized in the May 2009 SOC and subsequent SSOCs as claims for service connection. However, the record plainly reflects that the RO denied entitlement to service connection for these disabilities in a July 2004 rating decision. Inasmuch as the Veteran did not appeal the July 2004 rating decision, the matters involving service connection for knee disabilities must be addressed as petitions to reopen claims for service connection. See Jackson v. Principi, 265 F.3d 1366 (Fed.Cir. 2001). As a final preliminary matter, the Board notes that although the RO denied, and the Veteran also appealed, claims of entitlement to service connection for tinnitus and bilateral hearing loss, the RO granted these claims in a January 2011 rating decision issued during the pendency of the appeal. Hence, the claims involving hearing loss and tinnitus are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed.Cir. 1997). The Board's d disposition of the claims for service connection for a left heel disability and for residuals of a perforated left eardrum is set forth below. For the reasons expressed below, the matters remaining on appeal are, again, being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. FINDINGS OF FACT 1. In May 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw from appeal the outstanding claim for service connection for a left heel disability. 2. During the June 2012 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran testified on the record that he wished to withdraw from appeal the outstanding claim for service connection for residuals of a perforated left eardrum. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant (or his or her authorized representative) as to the issues of service connection for a left heel disability and for residuals of perforated left eardrum have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In May 2012, the Board received notification from the Veteran that he wished to withdraw from appeal the claim for service connection for a left heel disability. During the June 2012 Board hearing, the Veteran indicated that he wished to withdraw from appeal the claim for service connection for residuals of a perforated left eardrum. Thus, no allegations of errors of fact or law remain for appellate consideration with respect to these matters. Accordingly, the Board does not have jurisdiction to review these matters, and they must be dismissed. ORDER The appeal as to the claims for service connection for a left heel disability and for residuals of a perforated left eardrum is dismissed. REMAND The Board's review of the claims file reveals that additional RO action on the matters remaining on appeal is required. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet.App. 303, 311 (2007). Regarding the Veteran's claims for service connection for residuals of whiplash and TBI, and for migraine headaches, the RO afforded him VA examinations in November 2006 and November 2010. The 2006 examiner opined that the Veteran's claimed headache disability likely pre-existed service. That opinion was reiterated by a 2010 neurological disorders examiner whose report also indicated that the Veteran experienced TBI prior to service. A 2010 spinal disorders examiner opined that the record was devoid of evidence indicating that any neck disorder was attributable to an in-service incident, but acknowledged that cervical degeneration could result from "an axial loading type injury during [a] driving accident." As the claims file reflects evidence of pre-service injury, including motor vehicle injury, the theory of entitlement to service connection for TBI, headaches, and neck disability on the basis of aggravation of pre-existing injury has been raised by the record. Unfortunately, the prior examiners' opinions are inadequate as they do not address the issue of in-service aggravation of any pre-existing disability. Pursuant to 38 C.F.R. § 4.2, it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail. Accordingly, the RO should return the claims file to the November 2010 VA examiners for addendum opinions. The RO should only arrange for further examination of the Veteran if any prior examiner(s) is/ are unavailable or if either examiner determines that further examination of the Veteran is necessary. The Veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may result in denial of the claim(s) for service connection (as the original claim(s) will be considered on the basis of the evidence of record). See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. While these matters are on remand, to ensure that all due process requirements are met, and that the record before each physician is complete, the RO should undertake appropriate action to obtain all outstanding, pertinent records. The Board points out that, in addition to the above-noted claims, any outstanding records received may also have a bearing on the requests to reopen on appeal. As for VA records, the claims file reflects that the Veteran receives ongoing VA care from the Portland VA Medical Center (VAMC) and the North Coast Community Based Outpatient Care Clinic (CBOC); however, as the last VA treatment record associated with the claims file is dated July 10, 2012, more recent records from these facilities may exist. VA medical records not in the claims file are considered part of the record on appeal as they are within the VA's constructive possession. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO must attempt to obtain more recent treatment notes. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). As the record specifically reflects sources of outstanding private treatment records pertinent to the Veteran's claimed knee disabilities, in its letter, the RO should request that he submit copies of, or authorizations for the release of records from, Oregon Health and Science University (see September 2005 VA treatment record reflecting pending knee MRI and ultrasound at this facility), St. John's Hospital in Longview, Washington (see August 2003 statement reporting emergency treatment at this hospital for injuries resulting from hyper-extended knee joints), and Kaiser Permanente in Longview, Washington (although some records from this source are of record, the Veteran reported in August 2005 that he underwent a 2001 left knee surgery that is not yet documented). The RO should also request that the Veteran submit copies of, or authorizations for the release of, records pertaining to treatment from the following: GTE/Verizon (see September 2005 VA treatment record indicating retirement due to multiple medical problems and October 2006 treatment note reflecting that the Veteran reported being struck with a wire on the back of his neck while at work); Columbia Memorial Hospital (see August 2009 and January 2011 VA treatment notes reflecting emergency treatment from this facility including treatment for a fall from a deck resulting in neck pain), Northwest Pain Network (see November 2004 VA treatment note reflecting evaluation by this facility for the Veteran's complaints of orthopedic pain), Dr. Judison Guitteau in Longview, Washington (see January 2008 statement identifying Dr. Guitteau as a physician who conducted "extensive" tests on his claimed neck and headache disabilities), and Dr. Lance Bergman in Longview, Washington (see Veteran's August 2003 statement identifying Dr. Bergman as the last private physician who treated him prior to commencing VA care); and a rehabilitation specialist (see January 2011 VA treatment note stating that VA health care providers were deferring further evaluation of residuals of the Veteran's fall from a deck to a rehabilitation specialist in the private sector). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. Obtain from the Portland VAMC and North Coast CBOC outstanding, pertinent records of evaluation and/or treatment of the Veteran generated after July 10, 2012. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran provide, or provide appropriate authorization for the RO to obtain, records from GTE/Verizon, Columbia Memorial Hospital, Northwest Pain Network, Oregon Health and Science University, St. John's Hospital, Kaiser Permanente, Dr. Judison Guitteau, Dr. Lance Bergman, and any private rehabilitation specialists. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy or this REMAND, to the physician who conducted the November 2010 neurological disorders examination for an addendum opinion. The examiner should review the claims file, with particular attention to the evidence of pre-service injuries (June 1967 self report of medical history; February 1971 self report of medical history; January 2008 Veteran statement). With respect to diagnosed TBI and headache disorder, for each, the examiner should opine whether any such disability clearly and unmistakably existed prior to service; and, if so, whether the disability clearly and unmistakably was not aggravated (i.e., permanently worsened beyond natural progression) during or as a result of in-service injury-in particular, the January 1968 in-service motor vehicle accident. If the examiner determines that the disability did not clearly and unmistakably pre-existed service, and/or cannot state that the disability clearly and unmistakably was not aggravated during or as a result of service, the examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any disability is attributable to any in-service injury-in particular, the January 1968 motor vehicle accident. The examiner's report should include discussion of the Veteran's documented medical history and assertions. If the prior examiner is not available, or another examination is deemed warranted, the RO should arrange for the Veteran to undergo VA examination, by a physician, to obtain an opinion responsive to the questions posed above. The entire claims file, to include complete copy of the REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions The examiner should set forth all examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate), in a printed (typewritten) report. 5. Thereafter, forward the Veteran's entire claims file, to include a complete copy of this REMAND, to the November 2010 VA spinal disorders examiner for an addendum opinion. The examiner must again review the entire record. The examiner's attention is drawn to the evidence of pre-service injuries (June 1967 self report of medical history; February 1971 self report of medical history; January 2008 Veteran statement). With respect to the Veteran's complaints allegedly associated with whiplash injury, for each identified complaint, the examiner is asked to specifically opine whether any such complaint constitutes a disability that clearly and unmistakably existed prior to service: and, if so, whether the disability was clearly and unmistakably not aggravated (permanently worsened beyond natural progression) during or as a result of service, to specifically include the January 1968 in-service motor vehicle accident. If the examiner determines that the disability did not clearly and unmistakably pre-existed service, and/or cannot state that the disability clearly and unmistakably was not aggravated during or as a result of service, the examiner should opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that any disability is attributable to any in-service injury-in particular, the January 1968 motor vehicle accident. The examiner's report should include discussion of the Veteran's documented medical history and assertions. If the prior examiner is not available, or another examination is deemed warranted, the RO should arrange for the Veteran to undergo VA examination, by an appropriate physician, to obtain opinions responsive to the questions posed above. The entire claims file, to include complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached (to include citation to specific evidence and/or medical authority, as appropriate), in a printed (typewritten) report. 6. If the Veteran fails to report to any scheduled examination(s), obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination(s) sent to him by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall, 11 Vet.App. at 268. 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence and legal authority. 9. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet.App. 369 (1999); Colon v. Brown, 9 Vet.App. 104, 108 (1996); Booth v. Brown, 8 Vet.App. 109 (1995); Quarles v. Derwinski, 3 Vet.App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). ______________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs