Citation Nr: 1322872 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 07-22 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an initial disability rating in excess of 10 percent, for the period prior to January 23, 2009, and in excess of 70 percent disabling, for the period beginning January 23, 2009, for residuals of traumatic brain injury. ATTORNEY FOR THE BOARD Robert J. Burriesci, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1988 to September 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was previously before the Board in March 2010, February 2012, and January 2013 when the case was remanded for further development. 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 Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. For the reasons set forth below, the Board finds that additional development is required in this case. In March 2013 the Veteran underwent a VA medical examination regarding his traumatic brain injury. The examination report was completed in April 2013. In the examination report, the examiner stated that the Veteran had undergone neuropsychological testing on an earlier date in April 2013, and that the results were reviewed. The examiner thereafter discussed the results of the testing. However, review of the claims file does not reveal the report of the neuropsychiatric testing performed in April 2013. The Board notes that the Veteran also underwent a VA medical examination regarding his headaches in March 2013 and the examination report was completed in March 2013. The Veteran also underwent a VA reproductive systems examination in April 2013. VA is required to make reasonable efforts to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. See 38 U.S.C.A. § 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2012). In Bell v. Derwinski, 2 Vet. App. 611 (1992), the United State Court of Appeals for Veterans Claims (Court) held that VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record, and that such documents are thus constructively part of the record before the Secretary and the Board, even where they are not actually before the adjudicating body. Accordingly, attempts must be made to obtain the report of the April 2013 neuropsychological testing identified and discussed by the VA medical examiner. Since the claims file is being returned it should be updated to include VA treatment records compiled since November 2012. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The VA's duty to assist includes the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, if an only if additional evidence not previously considered by the VA examiner in the VA examination report dated in April 2013, the Veteran should be afforded another VA medical examination regarding his traumatic brain injury. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain complete VA treatment records pertaining to the Veteran dated subsequent to November 2012, including the report of the April 2013, neuropsychological testing. 2. Thereafter, if and only if additional treatment records are associated with the claims file, schedule the Veteran for an examination with regard to his claim for a higher evaluation for traumatic brain injury residuals. The claims folder must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests MUST be performed, and all findings reported in detail. The examiner is specifically requested to identify all brain injury residuals, and then to opine as to whether any brain injury residuals other than the Veteran's service-connected vascular headaches and migraines and panic disorder with agoraphobia, if found, are related to his head injury described in service treatment records. 3. Thereafter, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, issue the Veteran a supplemental statement of the case and provide the Veteran an opportunity to respond. 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). _________________________________________________ ROBERT E. SULLIVAN 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).