Citation Nr: 1317403 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 06-31 577 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for the residuals of a cerebrovascular accident (CVA), to include as a residual of a head injury during service, or as secondary to service-connected depressive neurosis, organic brain disorder and dementia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The Veteran served on active duty from January 1961 to October 1981. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2005 rating decision in which the RO denied service connection for residuals of stroke as well as denied entitlement to compensation under 38 U.S.C. § 1151 for the residuals of sinus surgery. In May 2005, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in March 2009. In October 2009, the Board remanded the claims on appeal to the RO to afford the Veteran a requested Board hearing. In March 2010, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of the hearing is of record. During the hearing, the Veteran requested, and the Veterans Law Judge granted, a 60-day abeyance to submit additional evidence. The Board notes that a claim for service connection for focal seizures, to include as a residual of a head injury during service, or as secondary to service-connected depressive neurosis, organic brain disorder and dementia, is the subject of a separate decision as the Veteran presented testimony on this issue before a different Veterans Law Judge. The Veteran was previously represented by The American Legion. However, in October 2011, the RO received from the Veteran an Appointment of Individual as Claimant's Representative (VA Form 21-22) designating Disabled American Veterans (DAV) as his representative. The Board has recognized the change in representation. In February 2012, the Board remanded this claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. After completing the requested development, the RO granted the claim for compensation under 38 U.S.C. § 1151 for the residuals of sinus surgery in a November 2012 rating decision. This decision terminated the Board's jurisdiction on the sinus disability issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Additionally, the RO continued to deny the claim for service connection for the residuals of CVA (as reflected in a March 2013 supplemental SOC (SSOC)). This issue has been returned to the Board for further appellate review. A review of the Virtual VA electronic records storage system reveals VA clinic records which are not associated with the paper claims file. The RO has reviewed these records in the March 2013 SSOC. For the reasons expressed below, the matter on appeal is again being remanded to the RO, via the AMC. VA will notify the Veteran when further action, on his part, is required. REMAND The Board regrets any further delay in adjudicating this claim, but finds that there is additional evidence pertinent to the claim which is not currently associated with the claims file. The Veteran claims that his CVA results from residuals of a head injury during active service, which has resulted in his service-connected depressive neurosis, organic brain disorder and dementia. A January 2006 medical opinion determined that the Veteran's CVA, which occurred approximately 15 years after his service-connected head injury, is more likely than not the result of the head injury. This examiner relied, in part, on an assumption that the Veteran had no history of hypertension prior to the CVA-which is incorrect according to medical records associated with the claims file. See generally Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (a physician opinion based upon an inaccurate factual premise has reduced probative value). In August 2012, a VA examiner provided an opinion based upon review of the claims file that the Veteran's CVA was not caused or aggravated by his service-connected head injury. In providing this opinion, the examiner commented that the claims file did not contain any medical records or testing procedures relating to the CVA in 1994. The examiner assumed that the Veteran's CVA was embolic in nature due to him being placed on Coumadin after the CVA. Here, the record reflects a difference of medical opinion as to the etiology of the Veteran's CVA in 1994. The August 2012 VA opinion reflects that there is additional procurable data-the treatment records relating to the 1994 CVA - which may be relevant to this determination. See generally Jones (Michael) v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board is remanding this case to obtain complete records related to the Veteran's CVA in 1994. The Board also notes that the Veteran's spouse has reported that the Veteran receives disability benefits from the Social Security Administration (SSA) due to his CVA. See Transcript of August 2008 RO hearing. These records, which are potentially relevant to the appeal and may contain the 1994 CVA treatment records, should be obtained on remand. See Golz v. Shinseki, 590 F.3d 1343 (Fed. Cir. 2010) (finding that VA must assist the Veteran in obtaining identified records, such as SSA records, "[a]s long as a reasonable possibility exists that the records are relevant to the [V]eteran's claim.") The Board further notes that the Veteran currently receives private treatment for his cardiac disability. VA clinic records reflect that some of these records have been scanned into the Veterans Health Information Systems and Technology Architecture (VistA) which are not part of the VA clinic records associated with the claims file. See VA clinic records dated January 19, 2011 and February 14, 2011. These records should be associated with the claims file. Additionally, the Veteran has described to VA clinicians additional records which may be pertinent to his claim, to include treatment records from North Oaks Medical Center, Dr. Delaney, Dr. Ochsner, Our Lady of the Lake, and Dr. Mussarat. The RO should assist the Veteran in obtaining and associating these records with the claims file. Also, on remand, the RO should obtain and associate with the claims file all outstanding VA treatment records since August 22, 2012. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain any records from the New Orleans VAMC all records of evaluation and/or treatment of the Veteran following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. Upon receipt of any additional evidence, the claims file should be returned to the August 2012 VA examiner for an addendum opinion to ensure that all procurable data has been reviewed. The RO should arrange only for the Veteran to undergo further examination if the prior examiner is not available, or further examiner is deemed necessary. To ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal, notifying him that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In the letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization, to obtain all outstanding, pertinent private records, to include those identified above. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the New Orleans VAMC all records of evaluation and/or treatment of the Veteran since August 22, 2012. Additionally, associate with the claims file the private records scanned into VistA as mentioned in VA clinic records dated January 19, 2011 and February 14, 2011. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 2. Obtain all medical and legal documents pertaining to the Veteran's application for disability benefits with the Social Security Administration. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records/responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. In particular, request that the provide medical records of treatment or appropriate authorization to obtain records relating to his treatment for CVA in 1994 and all records from North Oaks Medical Center, Dr. Delaney, Dr. Ochsner, Our Lady of the Lake, and Dr. Mussarat. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's claims file (paper and electronic) to the August 2012 examiner for an addendum opinion. The physician should identify all residuals of, or disability associated with, the Veteran's 1994 cerebrovascular accident. Then, for each such diagnosed disability, the physician should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the disability (a) had its onset in or is medically related to in-service injury or disease-in particular, the April 1979 assault and resulting head injury; and, if not (b) whether the disability was caused or is aggravated (worsened beyond natural progression) by the Veteran's service-connected service-connected depressive neurosis, organic brain disorder and dementia. If aggravation is found, the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In rendering the requested opinion, the physician should specifically consider, discuss, and attempt to reconcile or resolve the conflicting medical opinions of record-namely, the January 2006 opinion by the treating VA physician and the June 2006 opinion by the VA examiner. The physician should also consider all lay assertions of record, to include those advanced cases the Veteran and his wife during the Board hearing. If the August 2012 J examiner is not available, or further examination of the Veteran is deemed necessary, forward the claims file to another appropriate physician for examination of Veteran and opinions responsive to the questions and comments noted above. The entire claims file, to include a complete copy of the REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. The physician should set forth all examination finding (if any), along with complete rationale for the conclusions reached, in a printed (typewritten) report. 6. If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 7. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 8. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for the residuals of CVA, to include as a residual of a head injury during service, or as secondary to service-connected depressive neurosis, organic brain disorder and dementia, in light of all pertinent evidence and legal authority. 9. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative (DAV) an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The appellant need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).