Citation Nr: 1320817 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 10-17 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for residuals of head trauma. 2. Entitlement to service connection for an acquired psychiatric disorder to include as secondary to residuals of head trauma. 3. Entitlement to service connection for tinnitus to include as secondary to residuals of head trauma. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from December 1970 to November 1972, with additional service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from April 2007 and August 2008 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to service connection for tinnitus and denied entitlement to service connection for the residuals of head trauma and for an acquired psychiatric disability, to include as secondary to head trauma. In July 2011 the Board remanded this matter for the purposes of scheduling a hearing before a Veterans Law Judge at the RO (Travel Board hearing). In June 2012 the Veteran provided testimony at a Travel Board hearing. A transcript of the hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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's review of the claims file reveals that further RO action in this appeal is necessary. At his June 2012 hearing, the Veteran and his attorney have alleged that complete service treatment records have not been fully obtained. Although records from his service with the Michigan National Guard have been obtained, and primarily include treatment records addressing a thumb injury in 1999, the Veteran has alleged that the head injury occurred in December 1979 while he was in the Army Reserves. His attorney pointed out that the Reserve records have not been obtained by the VA. It was also pointed out that an apparent attachment to the December 28, 1979, National Guard entrance examination was a notation describing a head injury having taken place on December 19, 1979, while he was at his unit for a December drill. The injury was described as his having been struck in the head by an arms rack which caused him to briefly lose consciousness. He reportedly was taken to AFEES in Detroit for further treatment. No additional treatment records for this apparent head injury have been obtained, and the remainder of the National Guard records mostly focuses on a 1999 thumb injury. In light of the above, the Board finds that these matters should be remanded for the RO to attempt to obtain any outstanding service department records. While these matters are on remand, the RO should also obtain and associate with the claims file other potentially pertinent Federal records. A review of the records reveals that the Veteran is in receipt of Social Security disability (SSD) benefits. The reason for the grant of such benefits is not clear. The Veteran's attorney specifically pointed out at the June 2012 hearing that the records associated with this decision have not been associated with the claims file, and alleged that the SSD benefits were based on his claimed residuals of head injury and psychiatric disorder. Given that the SSD records may potentially pertain to the claims on appeal, the Board finds that it is necessary to obtain such records from the Social Security Administration (SSA). Finally the Board finds that examinations are indicated in this matter to address the etiology of the claimed disorders. Regarding the head injury, although there appears to be some incomplete evidence suggesting a head injury took place in active Reserve service, and there is a favorable opinion from a private neurologist in April 2008 stating that he has post-concussion syndrome with cognitive problems from the December 1979 injury, this matter is further complicated by evidence of a post-service head injury in a fall while working at a jail according to an August 2008 VA treatment record. Private records from 2003 suggest the work injury happened prior to 2003, and a February 2003 report documents cognitive and mental status issues following an accident at his place of employment. Thus further examination is indicated. Regarding the claimed tinnitus, although he underwent VA examination to address the etiology, the examiner did not address whether this was caused or aggravated by the claimed head injury. The Veteran's hearing testimony suggesting that tinnitus began after this injury raises a claim for secondary service connection, thus further examination is warranted to address this. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The RO should undertake all appropriate action to secure complete service treatment, personnel or alternative records for the Veteran through official channels, as well as from the appellant. Any and all records obtained, to include those records described by the Veteran as involving treatment for a head injury while serving in the Army Reserves December 19, 1979, while he was at his unit for a December drill, with further treatment at AFEES in Detroit, Michigan, should be associated with the claims file. In requesting the records, the RO should follow procedures prescribed in pertinent provisions of VA's Adjudication procedure manual, as well as 38 C.F.R. § 3.159(c)(2) (2012). 2. The RO should request from SSA a copy of any disability determination concerning the Veteran, as well as copies of all medical records underlying any such determination. In requesting these records, the RO should follow the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. The Veteran should be scheduled for a VA examination regarding his claimed head injuries, tinnitus, and psychiatric disorder. The Veteran's claims file must be provided to the examiner for review. All indicated studies should be performed. (a) The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran has residuals of a head injury that occurred during active service, to include as due to the head trauma documented in the service treatment records in December 1979. In addressing this matter, the examiner must consider the lay history provided by the Veteran regarding the onset of symptoms after the 1979 injury and the favorable medical evidence suggesting a post-concussion syndrome linked to service in the April 2008 private neuropsychiatric evaluation. (b) The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the tinnitus and a psychiatric disorder was caused by a head injury in service. If tinnitus and/or psychiatric disorder is not caused by a head injury, the examiner should provide an opinion as to whether is it at least as likely as not (50 percent or greater probability) that tinnitus and/or psychiatric disorder was aggravated (permanently worsened beyond normal progression) by a head injury. If the examiner finds tinnitus and/or psychiatric disorder is aggravated by a head injury, the examiner should provide an opinion as to the baseline level of severity of the tinnitus and/or psychiatric disorder prior to the aggravation. The examiner should provide a medical rationale for the opinions provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's service connection claims should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ James L. March 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).