Citation Nr: 1314099 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-07 435 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to increases in the ratings assigned for residuals of a head injury, to include headaches with temporal vision loss and distortion (TBI residuals), currently assigned staged ratings of 10 percent prior to August 18, 2011, and 40 percent from that date. [A claim for reimbursement of unauthorized medical expenses is the subject of a separate Board decision.] REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1965 to February 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for post concussion headaches and temporal vision loss and distortion, rated 10 percent, effective November 3, 2006. The matter was previously before the Board in June 2011, when it was remanded for further development and readjudication. In April 2012, the Appeals Management Center (AMC) awarded an increased (to 40 percent) rating, effective August 18, 2011. As the Veteran is presumed to be seeking the maximum benefit allowed by law (and has not expressed satisfaction with the rating assigned), the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The appeal is being 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 A preliminary review of the record found that this matter is not ready for appellate review. First, clarification of AMC/RO action is necessary. The January 2008 rating decision on appeal awarded the Veteran a 10 percent rating for TBI residuals, and also denied him service connection for residuals of a stroke (to specifically include memory loss). The Veteran did not appeal the denial of service connection for residuals of a stroke, and any symptoms attributable to stroke residuals (but not to TBI residuals) may not be considered in rating the TBI residuals. The April 2012 AMC action awarded an increased 40 percent rating effective August 18, 2011, based in part on memory loss, but left intact the prior denial of service connection for memory loss, creating an inconsistency that must be resolved. Furthermore, the initial 10 percent rating for TBI residuals was based on criteria for rating residuals of brain disease due to trauma that have now been revised (effective October 23, 2008). See 38 C.F.R. § 4.124, Note (5). Prior to October 23, 2008, Diagnostic Code 8045 rated purely neurological disability, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc, following trauma to the brain, under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated code. 38 C.F.R. § 4.124a Code 8045 (2008). The revised Code 8045 provides for rating TBI residuals based on three main areas of dysfunction that may result from TBI. 38 C.F.R. § 4.124a, Code 8045 (2011). The Veteran was afforded VA examinations in 2007, 2009, 2010 (neuropsychological evaluation), and 2011; the 2011 examination involved various separate evaluations/components (TBI, brain, and eye). The 2011 VA brain examiner specifically indicated that the claims folder was not available for review, and that she did not review service, VA, or private records. As it is essential that each disability be viewed in relation to its history (particularly in a case as here where a veteran has both service connected and nonservice-connected disabilities that may account for various symptoms found), the examination is inadequate for rating purposes. Notably, the VA brain examination did not delineate what symptoms/impairment are clearly due solely to the non-service connected residuals of a stroke, and which are due to the service-connected TBI residuals. The opinion expressed by the VA eye examiner was also clearly based on the Veteran's report (versus familiarity with the entire record), and likewise is inadequate. Accordingly, another examination by an examiner who becomes familiar with the entire history of the disability is necessary. In addition, the record compiled for appellate review of this matter to this point is incomplete. The Veteran is separately pursuing a claim for reimbursement of unauthorized medical expenses (for private treatment of a stroke), and (at least) two volumes of claims file records (not duplicated in the record considered by the RO) have been compiled in connection with such claim. Those records contain information pertaining to the questions that remain unresolved, and must be associated with the appellate record in the matter at hand. Finally, the most recent [VA] treatment records associated with the record [from the Oakland VA Medical Center (VAMC)] are dated in June 2011. Updated records of any treatment the Veteran has received for symptoms/impairment that may be related to TBI residuals since June 2011, as well as any records of private treatment for such symptoms, are pertinent evidence that must be secured. Accordingly, the case is REMANDED for the following action: 1. The RO should secure for association with the record on appeal all medical records in possession of VA pertaining to any treatment the Veteran has received for symptoms/impairment that might be related to TBI residuals, specifically including all records compiled in connection with his concurrent claim/appeal seeking reimbursement of unauthorized medical expenses 2. The RO should ask the Veteran to identify any (and all) providers of any evaluation or treatment he has received for symptoms/impairment that might be considered/are alleged to be TBI residuals since June 2011, and to provide releases for VA to obtain records of any such private evaluation or treatment. The RO should secure for the record copies of the complete clinical records from all providers identified (to specifically include any updated, since June 2011, records of treatment at the Oakland VAMC). 3. After (as any earlier examination would be based on an incomplete record) the development sought above is completed, the RO should arrange for the Veteran to be scheduled for a VA TBI protocol examination to determine the current severity of his service-connected TBI residuals. The Veteran's entire claims file (i.e. the paper claims file, including the two separate volumes of private treatment records for residuals of stroke noted above, and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner before the examination. If the examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests or studies must be completed. The examiner should describe all findings (cognitive, emotional/behavioral, and/or physical) in detail specifically identifying any symptoms/impairment that are clearly due solely to the non-service connected residuals of a stroke (versus any such symptoms that may not be disassociated from the TBI residuals). The examiner must explain the rationale for all opinions, citing to supporting factual data/clinical findings. 4. After ensuring the examination report is adequate for rating purposes, the RO should readjudicate the issue on appeal. [The readjudication must specifically reconcile the current contradictory rating decision conclusions that memory loss is both service-connected and not service-connected.] If the benefit sought remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). _________________________________________________ GEORGE R. SENYK 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) (2011).