Citation Nr: 1324648 Decision Date: 08/02/13 Archive Date: 08/13/13 DOCKET NO. 07-14 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for residuals of a head injury. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to September 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating action of the Department of Veterans Affairs Regional Office (RO) in Nashville, Tennessee. In July 2010, the Board remanded this matter for additional development and medical inquiry. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. No relevant evidence has been added to either claims file since the most-recent supplemental statement of the case (SSOC) in November 2011. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In its July 2010 remand, the Board requested that outstanding VA and Social Security Administration (SSA) medical records be included in the claims file, and that the Veteran be provided with VA compensation examination into his claims. The record indicates that treatment records from VA and SSA have been included in the claims file. However, the record does not indicate that VA has substantially complied with the Board's request to provide the Veteran with VA medical examinations. Stegall v. West, 11 Vet. App. 268 (1998). The November 2011 SSOC indicates that scheduled VA examinations were canceled due to "undelivered notification." However, the record contains no evidence substantiating VA's efforts to notify the Veteran of the scheduled examinations. As such, an additional effort should be made to contact the Veteran and offer him the requested VA medical examinations. Since the development being requested may reveal entitlement to a TDIU, the claim for assignment of a TDIU is inextricably intertwined with the remanded issue and must be deferred and reconsidered on remand. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims folder any outstanding VA treatment records. The most recent VA treatment records of file are dated in October 2011. If no additional VA treatment records exist, the claims file should be documented accordingly. 38 C.F.R. § 3.159. 2. Schedule the Veteran for an appropriate VA examination to determine the etiology of his brain tumor, and any other diagnosed brain disability. Any indicated tests should be accomplished. The examiner should review the claims folder prior to examination, to include any newly associated records obtained as a result of this remand. The examiner is asked to opine as to the following question: Is it at least as likely as not that the Veteran's brain tumor, and any other current disability, is causally related to the Veteran's service. Note that the Veteran claims that he developed a brain disorder as the result of a kick to the head during service. The examiner should assume the Veteran was kicked in his head in service sometime between May and September 1972 unless there is some reason to doubt his credibility in that regard. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner is further reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Review the medical opinion obtained above to ensure that the remand directives have been accomplished. If the question posed is not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. After all the above development has been completed, readjudicate the claims on appeal. If an issue remains denied, the Veteran should be provided with a SSOC, and afforded a reasonable period of time within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ BETHANY L. BUCK 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).