Citation Nr: 1319716 Decision Date: 06/19/13 Archive Date: 06/27/13 DOCKET NO. 09-43 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial compensable rating for status post residuals of a head injury with post concussion headaches. 2. Entitlement to an initial rating in excess of 10 percent for residual scar, head injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from December 1966 to November 1969 and from October 1973 to January 1988. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran was scheduled for a March 2010 Travel Board hearing; however, he failed to appear. The Veteran did not appear for the hearing, nor did he provide good cause for his failure to appear. Therefore, his hearing request is considered withdrawn. 38 C.F.R. § 20.704 (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND With regards to the claim for an initial compensable rating for status post residuals of a head injury with post concussion headaches, reference is made to an April 2008 neurology consultation that indicated that the Veteran's complaints of dizziness could be attributable to his documented in-service TBI. A follow up was recommended. A September 2009 VA examination then refers to an August 2009 VA neurology clinic record that apparently included findings pertinent to the claim on appeal. However, the claims file only includes VA medical records dated from January 2006 to April 2008. VA has a duty to request all available and relevant records from federal agencies, including VA medical records. 38 C.F.R. § 3.159(c)(2012); Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is deemed to have constructive knowledge of all VA records and those records are considered evidence of record at the time a decision is made). Hence, a remand is warranted to obtain all outstanding pertinent VA medical treatment records dated from April 2008 to the present. In addition, the examiner who conducted the September 2009 VA examination opined that there was no objective evidence of traumatic brain injury in the Veteran. However, he failed to provide any rationale whatsoever for this conclusion. He also failed to address the potentially favorable findings of the April 2008 neurology consult. The examination is thereby inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Notably, it remains unclear whether the Veteran, in fact, suffered a traumatic brain injury in service and whether the criteria under Diagnostic Code 8045, pertaining to residuals of traumatic brain injury, are potentially applicable. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Hence, on remand, the Veteran should be afforded an additional VA examination to determine the nature and severity of his service-connected status post residuals of a head injury with post concussion headaches. In addition, the Board notes that in an August 2007 decision, VA granted service connection and assigned an initial 10 percent rating for residual scar, head injury. In June 2008 correspondence, the Veteran stated that "this letter is mine notice of appeal," and he specifically referenced VA's decision that granted him a 10 percent rating for a head injury as well as a noncompensable rating for the service-connected post concussion headaches discussed above. In an August 2008 correspondence, the RO informed the Veteran that his written disagreement concerning the issue of an evaluation above 10 percent disabling for residual scar from head injury and evaluation above zero percent for status post residuals of head injury with post concussion headaches had been received. The letter asked him to elect a traditional or Decision Review Officer (DRO) appeals process. Very clearly, VA accepted the June 2008 letter as a notice of disagreement (NOD) with the initial 10 percent rating assigned for residual scar, head injury. The Veteran responded and elected review by a DRO. Thereafter, the Veteran was afforded a VA examination to address the manifestations of both disabilities. However, when the RO issued an October 2009 statement of the case, only the issue of an initial compensable rating for status post residuals of a head injury with post concussion headaches was addressed. In December 2009 correspondence from the Veteran's representative, it was asserted that an SOC must be provided to address the issue of an evaluation above ten percent for residual scar from head injury. Then, in January 2010, the RO issued a letter to the Veteran advising him that he did not state in his June 2008 notice of disagreement that he disagreed with the evaluation of the scar and that the communication from his representative in December 2009 is not a timely NOD. The Board does not agree. The Veteran clearly expressed his disagreement with specific aspects of the August 2007 decision and sought appellate review. The NOD was clearly adequate. 38 C.F.R. § 20.201. Further, regardless of any deficiencies, the RO accepted the document and proceeded to process the appeal. Because the notice of disagreement placed that issue in appellate status, the matter must be remanded for the originating agency to issue a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA medical facility and obtain all outstanding pertinent medical records, dated from April 2008 to the present. All records obtained should be associated with the Veteran's claims file. 2. After completion of the above, schedule the Veteran for an appropriate VA examination to determine the nature and severity of the Veteran's service-connected status post residuals of a head injury with post concussion headaches. The entire claims file and any pertinent evidence in Virtual VA that is not contained in the claims file, must be made available and reviewed by the examiner. The report should note that review. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail All pertinent symptomatology and findings should be reported in detail utilizing the Compensation and Pension Examination TBI Examination Guidelines. The examiner should, to the extent possible, elicit a complete history from the Veteran, and specifically identify all neurological manifestations directly attributable to the Veteran's service-connected status post residuals of a head injury with post concussion headaches. The examiner should specifically identify the frequency and severity of his headaches, to include whether the Veteran's headaches are migraines, and whether these headaches are characteristic of prostrating attacks. The examiner should also address whether it is at least as likely as not (i.e., at least 50 percent probability) that the Veteran's post concussion headaches are the result of an in-service traumatic brain injury (TBI). If answered in the affirmative the examiner should also address the current severity of any residuals of TBI. All pertinent symptomatology and findings should be reported in detail utilizing the Compensation and Pension Examination TBI Examination Guidelines, before and after October 23, 2008. The examiner is asked to specifically address the degree to which the service-connected TBI disability is manifested by facets of cognitive impairment including to memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. In providing the above opinion, the examiner is requested to discuss and reconcile the September 2009 VA examiner's opinion that there was no objective evidence of traumatic brain injury in the Veteran and the April 2008 neurology report, which suggested that the Veteran's dizziness was due to a TBI. The 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). 3. Then, readjudicate the claim for an initial compensable rating for status post residuals of a head injury with post concussion headaches, to include consideration of all applicable rating criteria. If any action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 4. Issue a statement of the case on the issue of entitlement to an initial rating in excess of 10 percent for residual scar, head injury. Inform the Veteran of the requirements to perfect an appeal with respect to this issue. If the Veteran perfects an appeal, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MICHAEL A. HERMAN 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). Department of Veterans Affairs