Citation Nr: 1328520 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 12-32 121 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran had active service from November 1950 to November 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 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, D.C. VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a TBI. For the reasons that follow, his claim must be remanded. Though the record contains a few service treatment records (STRs) and a Form DD-214, the National Personnel Records Center (NPRC) confirms that, regrettably, the remainder of the Veteran's STRs and service administrative personnel records were destroyed in the July 1973 fire in St. Louis, Missouri, and are therefore unavailable. When there is evidence that a Veteran's service records have been lost or destroyed, as is the case here, VA has a heightened duty to consider the applicability of the benefit of the doubt rule, to assist a claimant in developing a claim, and to explain its findings and conclusions. Russo v. Brown, 9 Vet. App. 46, 51 (1996); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board may order an examination when the record shows that the Veteran has a current disability, indicates that this disability may be associated with the Veteran's active service, and does not contain sufficient evidence for the Board to make a decision on the issue. 38 U.S.C.A. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has consistently and competently reported throughout the appeal period that he was wounded in September 1951 during an amphibious landing near Inchon, Korea. His Form DD-214 shows that he had 10 months and 21 days of foreign service, and his awards include the Korean Service Medal with one bronze service star. Thus, the Board finds his report competent and credible and consistent with the circumstances of his service. He reported that he sustained gunshot wounds (GSW) to his face when he was hit by two bullets. The first caused him to lose all his teeth on the left lower jaw. The second injured his forehead just above his left eye. He reports in several different submissions that he was immediately treated by a Navy corpsman and taken off the beach to a Navy ship for treatment. He was on the ship for four to five days, but does not recall the ship's name. In the Informal Hearing Presentation, his representative suggests it may have been the U.S.S. Consolation, U.S.S. Repose, or U.S.S. Haven. The Board finds the Veteran's account of his in-service injury and treatment both competent and credible. In this regard, the Board notes that service connection is already in effect for PTSD, and for the outpatient treatment of dental conditions due to service trauma. Notably, the traumatic dental wounds are reported to have been the result of the same GSW that the Veteran asserts resulted in a TBI. In his notice of disagreement, the Veteran reports that, over time, shrapnel fragments have worked their way to the surface of his skin and been removed. A private x-ray dated September 2012 shows a 3mm metallic foreign body in the soft tissues of the lip. The evidence of record does not show a current diagnosis of TBI. However, as discussed below, it appears that some treatment records may be outstanding. In his substantive appeal, the Veteran contends that the trauma to his skull resulted in "twitching in his left eye, headaches, difficulty hearing, memory problems, and PTSD, all indicative of TBI." He also states that a "VA care provider" had reviewed the private x-ray images and made positive nexus statements. Thus, he asserts service connection is warranted. The Board finds that there is sufficient indication of a current disability that may be associated with the Veteran's active service to trigger the duty to provide a VA examination. McLendon. Therefore a remand is necessary to obtain a medical opinion as to whether any current TBI disability is related to service. Finally, the Veteran reported that he has been treated at the Syracuse VA Medical Center (VAMC) and Rome community based outpatient clinic (CBOC). However, only VA treatment records from the Rome CBOC, dated through November 2012, have been associated with the claims file. Thus, on remand, any treatment records relevant to a TBI should be obtained from the Syracuse VAMC. Additionally, any relevant current treatment records should be obtained from the Rome CBOC. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.) 1. Obtain any treatment records, physically or electronically, from the Syracuse VAMC that are relevant to a TBI. Obtain any relevant treatment records from the Rome CBOC dated after November 2012. 2. Notify the Veteran that he may submit lay statements from himself, as well as from individuals such as friends and/or family members, who have first-hand knowledge of (1) his injury in-service, and/or (2) the onset and/or recurrence of his TBI symptoms during and/or since service. He should be provided an appropriate amount of time to submit this lay evidence. 3. After associating any outstanding records with the claims file, schedule the Veteran for a VA examination to determine the nature, extent, onset and etiology of any TBI disability found to be present. The claims file should be reviewed by the examiner in conjunction with the examination. Any necessary tests should be conducted. After examining the Veteran and reviewing the claims file, the examiner should: a). Determine whether there is a current TBI disability present. b) State whether it is at least as likely as not that any diagnosed TBI disability is related to service, to include gunshot wounds sustained in 1951 in Korea. For the purpose of forming his medical opinion, the examiner must accept as credible the Veteran's competent and credible lay account regarding the occurrence of the injury in Korea. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 5. Then readjudicate the claim. If the benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response before the claims file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ STEVEN D. REISS 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) (2013).