Citation Nr: 1309918 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-24 201 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for residuals of traumatic brain injury (TBI). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967, to include service in Vietnam. His decorations include the Purple Heart Medal. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO in St. Louis, Missouri, inter alia, denied service connection for residuals of traumatic brain injury. That same month, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in April 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in June 2010. During the pendency of the appeal, the Veteran's claims file was transferred to the jurisdiction of the RO in New Orleans, Louisiana, which has certified the appeal to the Board. In November 2011, the Veteran and his wife testified during a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. During the hearing, the Veteran requested, and the undersigned granted, a 60-day abeyance period for submission of additional evidence in support of the claim. To date, no additional evidence has been received. For the reasons expressed below, the matter on appeal is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action in this appeal is warranted. In October 2009, the Veteran underwent a VA TBI examination. He reported that he had been injured in a mine explosion in Vietnam; that he had sustained injuries to his chest, extremities, and head; and that, as he was being evacuated, he slid out of an open door on a helicopter, fell a distance of about 60 feet, and sustained a further head injury in the fall. At the time of the October 2009 examination, the Veteran's complaints included daily headaches, dizziness, decreased concentration, memory loss, and an inability to control his emotions, rage, and anger. It was noted at that time that he denied visual change/diplopia, nausea, vomiting, weakness, numbness, paresthesia, and speech, swallowing, or gait change. However, elsewhere in the record, to include in a March 2010 VA TBI clinic progress note, the Veteran appears to assert that the symptoms he attributes to in-service TBI include blurring of vision, nausea, decreased strength in joints, sensitivity to light and noise, numbness or tingling of body parts, occasional problems with swallowing, bladder problems, change in sense of smell, change in appetite, slowed thinking, decreased sexual function, trouble with sleep, fatigue, and "snapping" of his jaws. In a February 2010 addendum report, following a computed tomography (CT) scan of the head and an electroencephalogram (EEG), the October 2009 VA TBI examiner opined that the Veteran's headaches were likely related to psychogenic factors (service-connected PTSD), rather than TBI. However, the examiner did not provide an opinion with respect to the likelihood that any of the Veteran's other complaints or manifestations could be attributed to in-service head injury, as alleged. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303 (2007). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because the February 2010 opinion does not address the likely etiology of all symptoms the Veteran asserts to be residuals of TBI, the Board finds that the opinion is inadequate, and that a new examination and opinion-based on full review of the record and supported by stated rationale-is needed to fairly resolve the Veteran's claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Accordingly, the RO should arrange for the Veteran to undergo VA examination, by a physician with expertise in TBI, with appropriate testing, at a VA medical facility. The Veteran is hereby advised that failure to report to the scheduled examination and/or testing, without good cause may result in denial of his claim for service connection for residuals of TBI (as the original claim will be adjudicated on the basis of 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 the scheduled examination and/or testing, the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the appointment(s) sent to him by the pertinent medical facility. Prior to arranging further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should obtain and associate with the claims file all outstanding pertinent records. The Veteran has testified that he has received regular, ongoing and relevant treatment at the VA Medical Centers (VAMCs) in New Orleans, Louisiana and/or Biloxi, Mississippi, since 1999. His claims file presently contains a number of VA treatment reports dating from that time. However, there appear to be significant gaps in the record. The claims file does not contain, for example, any VA clinical records dated between September 18, 2000 and October 5, 2006. Nor does it contain any records dated between September 8, 2008 and July 27, 2009, or after March 14, 2011. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO should obtain from the above-noted facilities all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated between September 18, 2000 and October 5, 2006, between September 8, 2008 and July 27, 2009, and after March 14, 2011. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The RO should also obtain other Federal records. It appears that the Veteran may have applied for disability benefits from the Social Security Administration (SSA), inasmuch as the record contains February 2009 correspondence from the State of Louisiana seeking copies of VA medical reports in connection with a disability determination. While SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the possible existence of relevant SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the RO should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, if any, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim 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). Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). 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 (2012). 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 claim on appeal. As indicated, the RO's adjudication of the claim should include consideration of all evidence added to the record since the RO's last adjudication of the claim. Accordingly, this matter is hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Biloxi and New Orleans VAMCs all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran dated since 1999, to particularly include all relevant records dated between September 18, 2000 and October 5, 2006, between September 8, 2008 and July 27, 2009, and after March 14, 2011. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. The RO should request from SSA a copy of its determination on the Veteran's apparent claim for disability benefits, if any, as well as copies of all medical records underlying its determination. In requesting these records, 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. 3. The RO should furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim on appeal that is not currently of record. The RO should 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). 4. If the Veteran responds, the RO should obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record, following the procedures set forth in 38 C.F.R. § 3.159 (2012). All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should 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. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo examination by a physician with expertise in TBI, at a VA medical facility. The entire claims file must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The physician should clearly identify all symptoms and manifestations asserted by the Veteran to be attributable to the in-service head injury, to particularly include reported symptoms of headache; dizziness; decreased concentration; memory loss; inability to control his emotions, rage, and anger; blurring of vision; nausea; decreased strength in joints; sensitivity to light and noise; numbness or tingling of body parts; occasional problems with swallowing; bladder problems; change in sense of smell; change in appetite; slowed thinking; decreased sexual function; trouble with sleep; fatigue; and "snapping" of his jaws. Then, with respect to each such symptom or manifestation, the physician should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., whether there is a 50 percent or greater probability) that the claimed symptom or manifestation is attributable to in-service head injury. In so doing, the physician should assume, for purposes of offering the opinion, that the in-service head injury occurred as alleged. The physician should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 6. To help avoid future remand, the RO must 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 v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims remaining on appeal in light of all evidence (to particularly include all that added to the claims file since the RO's last adjudication of the claims) and legal authority. 8. If the benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative an appropriate supplemental SOC 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 benefit requested should be granted or denied. The appellant 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 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).