Citation Nr: 1313306 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-47 118A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 2. Entitlement to a compensable rating for residuals of an open alveolar symphysis area mandible fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Philadelphia, Pennsylvania Department of Veterans Affairs (VA) Regional Office (RO). In February 2012, the Veteran testified before a Veterans Law Judge (VLJ) at a video conference hearing; a copy of the transcript of the hearing is associated with the claims file. The VLJ who conducted the hearing is no longer employed by the Board. The Board recognizes that the law requires the VLJ who conducts a hearing to participate in any decision made on the appeal. 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. In this case, the Veteran was notified that the VLJ who conducted his hearing was no longer employed by the Board in a February 2013 letter. He was offered the opportunity to have a new hearing. He was informed that he had 30 days from the date of the letter to respond; no response has been received. Thus, the Board will proceed with adjudication of the matters on appeal without additional hearing testimony. The Board also notes that in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of such file reveals VA treatment records which may be relevant to the issues on appeal. Thus, any future consideration of this appellant's case should take into account the existence of this electronic record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND By way of background, the Board notes that the Veteran's service treatment records show that in August 1968, he sustained a fracture of the mandible in an automobile accident, and underwent closed reduction of such fracture with Essig-type wires. He was placed on temporary assignment restrictions profile for 45 days, to include no contact sports, activities or duties. Despite the fact that the Veteran suffered a blow to the face resulting in the fracture, the record before the Board is inadequate to determine whether the Veteran has current residuals from a TBI during service. On this question, the Veteran testified at the February 2012 video conference hearing that he had symptoms such as headaches, memory problems, and a brain aneurysm. His service treatment records do not show treatment for or diagnoses of headaches, memory problems, or an aneurysm. On the Report of Medical History completed by the Veteran in September 1968 just prior to discharge from service, the Veteran denied having frequent or severe headaches, dizziness or fainting spells, periods of unconsciousness, epilepsy or fits, or loss of memory or amnesia. He noted that he was involved in a recent automobile accident resulting in a mouth injury. The clinician's summary noted the accident occurred approximately one month previously and resulted in a fractured lower jaw and knocked out teeth. Post-service treatment records include an April 1970 VA examination report wherein the head was normal. A December 2005 report from Dr. P. S. Holla noted that the Veteran passed out/fainted and lost track of time. MRI revealed an anterior communicating artery aneurysm. February 2006 CT of the head revealed an old right medial orbital wall fracture. In April 2006, the Veteran underwent a right pterional craniotomy for clipping of anterior communicating artery aneurysm. A May 2006 letter from Dr. E. L. Zager noted the Veteran was making a wonderful recovery from the surgical procedure, and also noted that the Veteran's headaches had resolved. On November 2009 VA TBI examination, the Veteran recalled having severe headaches after the accident during service. He also complained of short-term memory loss and cognitive impairment. The diagnoses included mild TBI, 1968, without long-term effects, and cerebral aneurysm, probably unrelated to prior head injury. The examiner opined that it was impossible at this distance in time from the original problem (in-service injury), and with the intervening brain problem (aneurysm), to give an opinion about any residual effects solely from the accident in 1968 without resorting to speculation. The examiner also noted that records from the neurosurgeon that performed the April 2006 surgical procedure were unavailable for review. Following the November 2009 VA TBI examination, the above-noted private treatment records were obtained and associated with the claims file. Those records, in addition to those already noted above, included a February 2012 letter by Dr. E. Serine that noted the Veteran has been his patient and been diagnosed, among other things, with memory loss and a brain aneurysm. X-rays show evidence of an old right medial orbital wall fracture which Dr. Serine stated was found to be incurred during active service. It was opined that the Veteran's aneurysm "is more than likely the result of the injury he sustained during his service." However, the Board notes that the service treatment records do not reflect that the Veteran suffered a fractured orbit (i.e. eye socket) during service; rather, they reveal a fracture of the lower jaw. The Board notes that the Veteran was hospitalized at Walter Reed Medical Center for his jaw fracture in August 1968. It is unclear whether additional hospital records from that hospitalization may exist. Thus, hospital records from that facility should be requested through official channels. In light of the foregoing, the Board also finds that a new TBI examination is necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). While the Veteran has recently reported that he experienced severe headaches since the accident in service, such assertion is contrary to information he provided on his Report of Medical History completed at separation from service, wherein he denied frequent or severe headaches, dizziness or fainting spells, periods of unconsciousness, epilepsy or fits, or loss of memory or amnesia. Moreover, there was no mention of headaches or a head injury on his initial claim for compensation in 1970, nor did he mention any such complaints on a VA general medical examination in 1970. The Board finds the contemporaneous service records to be more reliable and credible than the Veteran's current assertions being made 40 years after the fact and being made in conjunction with the Veteran's claim for compensation benefits. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Regarding the claim for a compensable rating for residuals of a jaw fracture, the Veteran was afforded a VA dental examination in September 2009. On September 2009 examination, the Veteran complained of some difficulty with lateral movement of the mandible. He had normal opening ability and no complaints regarding eating. The temporomandibular joint (TMJ) was not manifested by clicking, popping or crepitus. It was noted he declined a panoramic radiograph, and a determination of any bone loss due to disease, or any traumatic bone loss, was not possible. In August and October 2010 correspondence, the Veteran stated that he did not decline panoramic radiograph testing, but that he expressed uncertainty on examination whether the testing could be performed due to the aneurysm clips in his brain. If he was physically able to have such testing, he was willing to have the testing performed. In November 2011, a VA addendum examination was performed. It was noted that he had malunion of the mandible with slight displacement. At the February 2012 video conference hearing, the Veteran testified that food has to be chopped up for him and that it has to be soft in order for him to eat food. He also reported that he feels food getting stuck in his throat when he swallows. In addition, he testified that he has clicking of the jaw with associated pain which occurs all day. In light of the Veteran's hearing testimony which suggests possible worsening of symptoms, the Board finds that the Veteran should again be given an examination to address the severity of residuals of his jaw fracture. Relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, although Dr. Serine provided a medical opinion in this case, it does not appear that treatment records from that physician have been obtained. Accordingly, such records should be requested. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dating since November 2011 from the Wilkes Barre VA Medical Center. If no relevant records are available, the Veteran should be notified of such. 2. Ask the Veteran to complete an appropriate release form so that treatment records from Dr. E. Serine can be requested. Once the completed form is received, all treatment records from Dr. Serine should be requested. If no records are available, the Veteran should be notified of such. 3. Request hospital treatment records through official sources for the Veteran's hospitalization at Walter Reed Army Medical Center in August 1968. If no records are available the Veteran should be notified of such. 4. After the above has been completed to the extent possible, the Veteran should be afforded a VA TBI evaluation by a neurologist to determine whether he suffers from any current residuals of a TBI, and if so, to obtain an opinion from a neurologist whether such is related to events in service. The Veteran's claims folder and electronic VA treatment records should be reviewed by the examiner. Following review of the claims file and evaluation of the Veteran, the neurologist should respond to the following: a. Indicate whether the Veteran suffers from residuals of a head injury, and if so, provide an opinion as to whether it is more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (a 50/50 probability) that any current head injury residual disability is related to a car accident in service wherein he suffered an alveolar symphysis fracture of the mandible. In rendering this opinion, the examiner should note that the Board finds the denial of frequent or severe headaches on the Veteran's separation examination more credible than the Veteran's current assertion of having headaches since the accident. The neurologist should explain the reasoning for the opinion provided. b. Is the aneurysm found in 2006 more likely (greater than 50% probability), less likely (less than 50% probability), or at least as likely as not (a 50/50 probability) related to the accident in service and/or the lower jaw fracture therein, versus other factors such as the Veteran's prior smoking history, hypertension, and/or a right medial orbit fracture that was not noted during service? The neurologist should explain the reasoning for the opinion provided. 5. The RO/AMC should also arrange for a VA dental examination to determine the current severity of the Veteran's service-connected residuals of an open alveolar symphysis area mandible fracture. All indicated tests and studies are to be performed. The Veteran's claims folder (to include relevant electronic VA treatment records) must be made available to and reviewed by the examiner. The examiner should specifically describe all symptoms associated with the service-connected residuals of a jaw fracture, including whether it results in slight, moderate, or severe displacement of the mandible, and discuss the impact, if any, of pain and soreness on loss of motion or masticatory function. The examiner should consider the Veteran's subjective complaints (to include popping of the jaw, and needing food to be chopped up and be soft in order to eat). 6. The RO/AMC should then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. A. BANFIELD 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).