Citation Nr: 1315447 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-30 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for a joint condition, to include as due to an undiagnosed illness. 2. Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from June 1986 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In June 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. In June 2011, the Board received Indian Health Service records from the appellant. VA regulations require that pertinent evidence submitted by the appellant must be referred to the agency of original jurisdiction for review and preparation of a supplemental statement of the case (SSOC) unless this procedural right is waived in writing by the appellant or representative. 38 C.F.R. §§ 19.37, 20.1304 (2009). In a written statement dated in June 2011, the appellant waived RO consideration of the new evidence. Thus, the Board finds no prejudice to the appellant in proceeding to adjudicate this appeal. 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 Board finds that the claims must be remanded for additional development. The appellant contends that he has a traumatic brain injury due to a June 1991 car accident that occurred while he was in service in Germany. The appellant was afforded a VA examination in April 2010. The VA examiner noted that the claims file contained a one page document in German with a diagnosis listed as "multiple Prellungen" which he translated as multiple bruises. The examiner stated that there was a second diagnosis and one page of text in German that appeared to refer to the abdominal symptoms the appellant recalled. In the VA opinion, the examiner stated that the records in the claims folder did not indicate that any TBI occurred. The examiner noted that the limited translation of the German hospital discharge record did not discuss any TBI/head injury or residuals. Since the VA examination, the German discharge report has been translated. The discharge report indicates that the appellant had diagnoses of multiple contusions and a large hematoma on the right side of the face. The Board also notes that the appellant was diagnosed with a cognitive disorder from mild traumatic brain injury in June 2008 by a VA psychiatrist. An October 2008 VA treatment record noted that an MRI of the brain showed a few small area in the frontal lobes of high signal intensity. The physician noted "this may be result of brain injury, not certain of etiology." As the VA treatment records indicate the appellant may have symptoms relating to a TBI and the translated German discharge accident indicates the appellant's face was injured in the car accident, the April 2010 opinion is inadequate. The April 2010 VA examiner based his opinion on the incomplete information of record at the time of the VA examination. If VA provides the claimant an examination in accordance with the duty to assist, the examination must be adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, the claim must be remanded for a new VA examination regarding the appellant's claim for service connection for a TBI. In regard to the appellant's joints, he was evaluated at a VA examination in April 2010 and an addendum VA opinion was obtained in July 2010. The appellant's service treatment records reflect that he was treated for left knee pain in June 1989 and right ankle pain in January and August 1990. The April 2010 VA examiner found the appellant had patellofemoral pain syndrome of the knees. The VA examiner did not note that the appellant had reported left knee pain in service. Additionally, since the examination, the appellant has asserted that he has had symptoms of knee pain since service. Thus, the Board finds that the rationale for the April 2010 and July 2010 opinions is inadequate and a new VA opinion should be obtained. The appellant reported that he was treated at the German Hospital for a week and then he was released to his unit to see if he could get seen at the Army Hospital. (Tr. at 8) The appellant's claims file does not contain any other records from the German Hospital or service treatment records regarding the incident. A separation examination from the time of his discharge from service in December 1991 has not been associated with the claims file. Therefore, an attempt should be made to obtain the records from the German Hospital and any missing service treatment records, including a separation examination. At the June 2011 hearing, the appellant reported that he provided records from the Indian Health Service (IHS) from 2006. He stated that he had been treated a few times before that. (Board Hearing Transcript (Tr.) at 6) He also testified that the IHS first diagnosed him with fibromyalgia and prescribed Lyrica. (Tr. at 5) A review of the claims file reflects that Indian Health Service records from prior to July 2007 have not been associated with the claims file. The Indian Health Service is a federal health program under the United States Department of Health and Human Services (HHS). VA will make attempts to obtain records in the custody of a Federal department until it is determined that the records do not exist or that further efforts would be futile. 38 C.F.R. § 3.159(c)(2). As the records are relevant to the appellant's claims, the records of the appellant's treatment at the Indian Health Service facility in Pine Ridge from prior to July 2007 should be associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Indian Health Service facility in Pine Ridge, South Dakota, and request that all records of the appellant's treatment at that facility prior to July 2007 be provided for inclusion with the claims folder. If any records cannot be obtained after reasonable efforts have been made, notify the appellant and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Attempt to obtain the appellant's complete service treatment records, including a separation examination report from the time of his discharge from service in December 1991, records regarding the July 1991 car accident, and any records from the German Hospital where the appellant received treatment for the car accident. 3. After completion of the above, schedule the appellant for a VA examination to obtain an opinion as to whether it is at least as likely as not (50 percent probability) that the appellant has a traumatic brain injury that is related to service, to include the 1991 car accident. The VA examiner should consider the July 1991 translated discharge report which indicates the appellant had a large hematoma on the right side of the face. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 4. After completion of steps 1 and 2 above, provide the claims file to an appropriate VA clinician to provide an opinion as to whether it is at least as likely as not (50 percent probability) that the appellant has a joint condition that is related to service, to include due to an undiagnosed illness. The VA clinician should consider that the appellant's complaints of knee and ankle pain in service. If the clinician determines that a VA examination is necessary to provide an opinion, such should be accomplished. The VA clinician is requested to provide a thorough rationale for any opinion provided. The clinician should review the claims folder and this fact should be noted in the accompanying medical report. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 5. Thereafter, readjudicate the issues on appeal of entitlement to service connection for a joint condition, to include as due to an undiagnosed illness, and entitlement to service connection for a traumatic brain injury. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. 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). _________________________________________________ MILO H. HAWLEY 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).