Citation Nr: 1311544 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-30 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of traumatic brain injury (TBI). 2. Entitlement to service connection for tinnitus to include as secondary to TBI. 3. Entitlement to service connection for headaches with light sensitivity to include as secondary to TBI. 4. Entitlement to service connection for chronic sinusitis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from July 1978 to May 1984. This matter comes before the Board from a March 2010 rating decision which in part denied these claims. The Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing held in January 2012. A transcript of the hearing is associated with the claims file. 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 The Veteran claims entitlement to service connection for residuals of TBI and for tinnitus and headaches with light sensitivity as secondary to the TBI. The Veteran also claims entitlement to service connection for sinusitis, however at his hearing he specified that this disability is claimed on a direct basis, not as secondary to his TBI. The Board finds that further development is necessary to afford proper adjudication of these claims. The Veteran has claimed TBI resulted from 2 head injuries that took place in the service. First he alleged TBI took place from a football injury in 1979. Such injury is confirmed by service treatment records (STRS) that show he received emergency room treatment in June 1979 after being hit on the occipital area while playing football, and had amnesia to the incident along with frontal headache. He was assessed with a cerebral concussion. The second incident was claimed to have taken place around 1983, when he apparently fell from a chair at a bar and struck his head. He has claimed that he lost consciousness for 24 hours and he testified that the incident took place at a NCO club in Spain. There is no documentation of this second incident in the STRs or service personnel records. The records do reflect that following the first head injury, he had exhibited maladaptive behaviors including alcohol abuse and poor hygiene, that were not apparent prior to this injury. The report of a June 2009 VA examination is noted to have diagnosed TBI, mild, but determined that it is less likely as not that any of the Veteran's TBI symptoms documented (including subjective complaints of headaches with light sensitivity and tinnitus) are due to TBI. The examiner however failed to provide a rationale for this opinion, although the only noted head injury noted by this examiner was the 1979 football injury in service. The examination further suggests that the Veteran had cognitive impairment that existed prior to service, but did not address whether a TBI aggravated such impairment during service. Regarding the claimed tinnitus, a VA audiologist in a December 2009 VA examination deferred an opinion as to whether tinnitus was caused or aggravated by TBI to a physician. Subsequent to the June 2009 VA examination, a favorable opinion stating that the Veteran meets the diagnostic criteria for TBI was obtained from a September 2009 private neuropsychiatric evaluation. The Board finds in light of the inadequacies of the June 2009 examination and questions raised from the September 2009 private neuropsychiatric evaluation, that a more thorough VA examination is necessary. Although a December 2009 VA psychiatric examination was conducted, it does not address the etiology question of the TBI residuals. Further the Veteran has described currently being in receipt of Social Security disability (SSD) benefits, but the reason for the grant of such benefits is not clear. The December 2009 VA examination indicated that he was on SSD for congestive heart failure and sleep apnea. The September 2009 private neuropsychiatric evaluation indicated he was on SSD benefits for edema, arthritis in his knees and for 50 percent lung capacity. The Veteran has testified that he has been in receipt of SSD benefits since 2005 for TBI and headaches. Given that the SSD records may potentially pertain to the claims on appeal related to TBI, the Board finds that it is necessary to obtain such records from the Social Security Administration (SSA). Regarding the sinusitis, of which there is a single episode of treatment for this in service, the Veteran has not yet been examined for this disorder, as noted in his January 2012 hearing testimony. While he denied having received medical treatment for this claimed sinus disorder, the Board does note that he claimed having been unable to smell since he got out of service. Other records and reports from 2009, including the July 2009 TBI examination and an October 2009 TBI examination, suggest that he has been unable to smell for the past 4-5 years. Given that these records document a potential symptom of sinusitis, the Board finds that the Social Security records could potentially disclose symptoms of sinusitis, even if it isn't being directly treated. Given this history the Board additionally finds that the Veteran should be provided a VA examination to ascertain the nature and etiology of his claimed sinusitis. Accordingly, the case is REMANDED for the following action: 1. Obtain from the SSA a copy of any decision(s) adjudicating the Veteran's claim for disability benefits, as well as copies of all medical records underlying that claim. All records/responses received should be associated with the claims. 2. The Veteran should be scheduled for a VA examination before an appropriate specialist regarding his claimed TBI and the disorders of tinnitus and headaches with light sensitivity claimed as secondary to TBI. The Veteran's claims file and a copy of this remand must be provided to the examiner for review. All indicated studies should be performed. All manifestations of current disability should be described in detail. (a) The examiner is asked to opine as to whether it is at least as likely as not that the Veteran has a TBI disorder(s) manifested during, or as a result of, active military service, to include as due to the head trauma documented in the service treatment records in 1979. In addressing this matter, the examiner must consider not only the evidence shown in the service treatment records, that do include a positive history of head trauma in 1979, with subsequent evidence of maladaptive behaviors including alcohol abuse and poor hygiene, that were not apparent prior to this injury. The examiner should also consider the lay history provided by the Veteran regarding the onset of symptoms in service and the favorable medical evidence suggesting the presence of a TBI in the September 2009 private neuropsychiatric evaluation. The examiner should also address whether the Veteran had a cognitive impairment that existed prior to service, and if so, whether such impairment was aggravated beyond natural progression by the head trauma documented in service. (b) The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., a 50/50 probability or greater) that the tinnitus and/or headaches with light sensitivity was caused by a TBI. If tinnitus and/or headaches with light sensitivity is not caused by TBI, the examiner should provide an opinion as to whether is it at least as likely as not (i.e., a 50/50 probability or greater) that tinnitus and/or headaches with light sensitivity was aggravated (permanently worsened beyond normal progression) by a TBI. If the examiner finds tinnitus and/or headaches with light sensitivity is aggravated by TBI, the examiner should provide an opinion as to the baseline level of severity of the tinnitus and/or headaches with light sensitivity prior to the aggravation. The examiner should provide the medical basis for the opinions provided. A complete rationale for all opinions offered must be provided. 3. The Veteran should be scheduled for a VA examination before an appropriate specialist regarding his claimed sinus disorder. The Veteran's claims file and a copy of this remand must be provided to the examiner for review. All indicated studies should be performed. All manifestations of current disability should be described in detail. The examiner is asked to opine as to whether it is at least as likely as not that the Veteran has a sinus disorder that manifested during, or as a result of, active military service. In addressing this matter, the examiner must consider not only the evidence shown in the service treatment records, that do include a positive history of treatment for sinusitis but also the lay history provided by the Veteran regarding the onset of symptoms potentially related to sinus problems. A complete rationale for all opinions offered must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ J. A. MARKEY 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).