Citation Nr: 1312445 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 08-38 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for the residuals of a traumatic brain injury. 2. Entitlement to an increased rating in excess of 10 percent for the residuals of a left knee injury. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD J. W. Kim, Counsel INTRODUCTION The Veteran served on active duty from September 1972 to October 1974. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the Baltimore, Maryland, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran subsequently relocated, and jurisdiction of his appeal was transferred to the RO in Atlanta, Georgia. Initially, the Board notes that a previous unappealed rating decision had denied the Veteran's claim for service connection for headaches as a residual of a head injury. He now claims service connection for the residuals of a traumatic brain injury. Typically, when a service connection claim is raised following a prior final denial on the same issue, new and material evidence is required in order for VA to again consider the merits of the claim. 38 C.F.R. § 3.156 (2012). However, a claim based on a new diagnosis is treated as a new claim, obviating the need for new and material evidence. Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). In this case, the prior adjudication was essentially for only one of the many possible residuals of a traumatic brain injury. As such, the Board finds that new and material evidence to reopen service connection is not required in this case. In July 2012, the Board remanded the appeal to afford the Veteran an opportunity to present testimony at a hearing before a Veterans Law Judge (VLJ). In September 2012, the Veteran and his wife testified at a hearing before the undersigned VLJ at the RO. Although the Veteran requested a videoconference hearing, the Board finds no prejudice in having afforded him a more favorable in-person hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND With respect to the residuals of a traumatic brain injury, the Veteran contends that he was hit on the head by scaffolding during service. His service treatment records show that his duties included painting. In July 1973, he suffered lacerations to the forehead and below the right eye orbital that required stitches. X-rays were normal. On the following day he complained of headaches, dizziness, and loss of balance. In October 1973 he complained of headaches and facial pain since a blow to the left side of the head. X-rays were again normal. The examiner diagnosed him with headaches of questionable etiology and noted a posttraumatic injury in July. Five days later he again complained of headaches and was diagnosed with headaches of questionable etiology. The plan was to obtain a neurological evaluation but no such evaluation is of record. Given the above, the Board finds that the Veteran sustained a traumatic brain injury during service. Thus, the question is whether he has any residuals from that injury. In March 1976 the Veteran filed a claim for service connection for headaches and blurred vision in the left eye as a result of being hit on the head by scaffolding during service. A January 1975 treatment note from the Washington VA Medical Center (VAMC) reflects complaints of blurry watery eyes in the morning for the past seven months. A May 1978 treatment note reflects a history of intravenous drug use, complaints of headaches with seizures, and a diagnosis of rule out SBE. A January 2000 treatment note from the Atlanta VAMC reflects a history of a head injury in 1973 without loss of consciousness but with blurred vision briefly, and a denial of any history of chronic or recurrent headaches. A November 2003 note reflects complaints of a right-sided headache since noon that day that was better that evening, seeing black spots at its peak, the Veteran's report that he also had some bad teeth on that side but has never had such a headache in the past, and diagnoses of tension headache and odontalgia. A February 2007 note reflects a history of schizoaffective disorder with auditory hallucinations and polysubstance abuse. A March 2008 MRI of the brain shows impressions of no acute intracranial findings or evidence for intracranial mass lesion, and findings suggestive of minimal small vessel ischemic change in the periventricular hemisphere white matter bilaterally. In August 2008, the Veteran reported a head injury in service after which he saw dots and began to have auditory hallucinations. In October 2008, he complained of bilateral hearing loss that he related to a head injury in service and was assessed with asymmetrical sensorineural hearing loss, left worse than right. A January 2010 note reflects that it is possible that the Veteran has atypical migraines or atypical cluster headaches. At the September 2012 hearing, the Veteran reported having loss of balance and seeing dots as residuals of his traumatic brain injury. Hearing Transcript, 5-6. Given the above, the Veteran should be afforded an examination to determine whether he has any residuals of the in-service head injury, to include headaches, visual impairment including seeing dots, a psychiatric disorder, hearing loss, and loss of balance. With respect to the evaluation of the residuals of a left knee injury, the Board initially finds that a remand is required to address a procedural deficiency. In the November 2006 rating decision, the RO denied an increased rating for the residuals of a left knee injury with instability, noting that the Veteran did not report to a scheduled VA examination. The Veteran then underwent an examination of his left knee in September 2007. After examining the Veteran, the examiner provided a diagnosis of osteoarthritis and internal derangement of the left knee. The Veteran underwent another examination in October 2009. After examining the Veteran, the examiner noted the prior diagnosis of internal derangement of the left knee and changed the diagnosis to internal derangement of the left knee with degenerative joint disease. The examiner noted that this was a progression of the previous diagnosis and that X-ray evidence of degenerative joint disease was now present. In a September 2008 statement of the case (SOC), the RO in Roanoke, Virginia, recharacterized the Veteran's disability as osteoarthritis and internal derangement of the left knee. In a January 2010 supplemental statement of the case (SSOC), the Atlanta RO continued to characterize the disability as osteoarthritis and internal derangement of the left knee. However, the record is unclear as to whether the ROs granted service connection for osteoarthritis and internal derangement of the left knee. Thus, readjudication of the increased rating claim on appeal is required. Specifically, if the RO intended to grant service connection for osteoarthritis and internal derangement of the left knee, it should properly do so in a rating decision. In this regard, the RO previously denied service connection for arthritis of the left knee in a December 1997 rating decision. Thus, to grant service connection, the RO must first reopen the previously denied claim and then grant service connection for the disability. Even if the grant of service connection was not intended, based on the October 2009 VA examination report, indicating that the diagnosis of osteoarthritis and internal derangement of the left knee represents a progression of the Veteran's service-connected disability, the record raises the issue of entitlement to service connection for osteoarthritis and internal derangement of the left knee. Therefore, the claim for an increased rating for the residuals of a left knee injury should be readjudicated following the proper adjudication of the claim for service connection for osteoarthritis and internal derangement of the left knee. Furthermore, the Veteran testified at the September 2012 hearing that his left knee disability had worsened since the last VA examination in October 2009. Hearing Transcript, 13-14. Thus, he should be afforded an examination to determine the current severity of his left knee disability. Prior to the examinations, any outstanding VA medical records should be obtained. The Veteran receives treatment at the Atlanta VAMC and the record, including his Virtual VA file, contains treatment notes dated through August 2012. Thus, any outstanding treatment notes since that time should be obtained. The Veteran also testified that he had received treatment at the Washington, D.C. VAMC from discharge from service to 1996 when he moved to Atlanta. Hearing Transcript, 10. The record contains treatment notes from the Washington, D.C. VAMC dated in May 1978 and then in 2007 when the Veteran returned to the area. Although the Veteran testified that some of his older records from the Washington, D.C. VAMC had been lost in a fire, Hearing Transcript, 7-8, the record does not reflect that an attempt was ever made to obtain any existing records. Thus, an attempt to obtain any records from the Washington, D.C. VAMC from May 1978 to December 1996 should be made. Lastly, a June 2007 VA treatment note reflects that the Veteran had applied for disability benefits from the Social Security Administration (SSA). As they may be relevant to the appeal, an attempt should be made to obtain any decisions and medical records relied upon. Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to provide any medical records not already in the claims file pertaining to post-service treatment and/or evaluation or to provide the identifying information and any necessary authorization to enable the AMC/RO to obtain such evidence on his behalf. [The Board is particularly interested in records of treatment and/or evaluation that the Veteran may have undergone at the Atlanta VAMC since August 2012 and at the Washington, D.C. VAMC from May 1978 to December 1996.] Document the attempts to obtain such records. If any pertinent evidence identified by the Veteran is unavailable, inform him and request that he obtain and submit it. If any records are unavailable/do not exist, and further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the physical VA claims folder or Virtual VA folder (as appropriate). 2. Contact the SSA and request a copy of any decision(s) pertaining to the Veteran and the medical records relied upon. All such available documents should be associated with the Veteran's physical VA claims folder or Virtual VA folder (as appropriate). All attempts to obtain these records-as well as the unavailability of any such documents-should be annotated in the Veteran's file. 3. Thereafter, schedule the Veteran for a VA traumatic brain injury examination to ascertain whether he has any current residuals of the in-service head injury. The claims folder must be made available to the examiner for review of the case, and a notation to the effect that this record review took place should be included in the report. In addition, the examination report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies are to be performed, and the examiner should review the results of any testing prior to completing the report. After examining the Veteran and reviewing the relevant evidence of record, the examiner should clearly identify all residual symptoms (including all subjective complaints) that are determined to be related to the in-service head injury. The examiner should then opine as to whether it is at least as likely as not (a probability of 50 percent or greater) that any claimed impairment, including but not limited to headaches, visual impairment including seeing dots, a psychiatric disorder, hearing loss, and loss of balance, is related to the in-service head injury. In rendering this opinion, the examiner should address the Veteran's reported history of the onset of relevant symptoms. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. Also, schedule the Veteran for a VA examination to determine the nature and severity of the residuals of his left knee injury. The claims folder must be made available to the examiner for review of the case, and a notation to the effect that this record review took place should be included in the report. In addition, the examination report should include a discussion of the Veteran's documented medical history and assertions. All indicated tests and studies, including X-rays and tests designed to assess ligament stability and strength (such as McMurray's, Lachman's, and anterior/posterior drawer tests), are to be performed, and the examiner should review the results of any testing prior to completing the report. All pertinent pathology associated with the service-connected residuals of a left knee injury should be noted in the examination report, including any limitation of motion, instability, or ankylosis of the Veteran's left knee that is associated with his service-connected disorder. If any instability of the Veteran's left knee is found, the examiner should indicate whether it is slight, moderate or severe. If arthritis of the left knee is shown on X-rays-and if internal derangement of this joint is shown on examination, the examiner should opine as to whether such pathology is associated with the service-connected residuals of a left knee injury. Also, the examiner should discuss whether the Veteran's left knee disorder exhibits weakened movement, excess fatigability, or incoordination that is attributable to his service-connected disorder. If feasible, this determination should be expressed in terms of the degree of additional range of motion lost. The examiner should also discuss the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran uses his left knee repeatedly over a period of time. The examiner should also discuss the impact (if any) of the service-connected left knee disability on the Veteran's ability to obtain and maintain employment. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After completing the above development, readjudicate the claims on appeal, as are listed on the title page of this Remand. [In adjudicating the issue of entitlement to an increased rating in excess of 10 percent for the residuals of a left knee injury, the agency of original jurisdiction should specifically set forth in a rating action whether this currently service-connected disability includes osteoarthritis and internal derangement of the left knee.] If any benefit sought on appeal remains denied, the Veteran and his representative should be provided an SSOC and given an opportunity to respond. No action is required of the Veteran until he is notified by the RO; however, he is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). He has the right to submit additional evidence and argument on the matter that 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 remanded by the Board or the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).