Citation Nr: 1334524 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-07 018 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for the service-connected status post fracture of the right mandible. 2. Entitlement to service connection for residuals of head trauma. 3. Entitlement to service connection for a sleep disorder, to include chronic insomnia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from April 1972 to April 1976, and January 1978 to December 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the RO. In the course of the appeal, the Veteran indicated that he wished to testify at a hearing before a Decision Review Officer at the RO. In July 2010, he submitted a statement wherein he withdrew his hearing request. Therefore, the Board finds that there is no hearing request pending at this time. In a June 2009 letter, the Veteran raised the issue of service connection for a nerve injury in the face, to include as secondary to the service-connected status post fracture of the right mandible. In September 2012, he then raised issues of service connection for a sinus disorder and gastritis. In January 2013, most recently, he raised a claim for increased rating for the service-connected lumbar spine disability. These matters have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction and refers them to the attention of the AOJ so that appropriate action can be undertaken. The Board has considered documentation included in Virtual VA. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND After carefully considering the record, the Board finds that the appeal must be remanded for further development. Initially, the Board notes that there may be outstanding VA treatment records pertinent to the claim. In various correspondence, including from November 2009 and June 2009, the Veteran indicated that he had received VA treatment in New York and California. Specifically, the Veteran indicated treatment at the Manhattan VA Medical Center (VAMC), the Palo Alto VAMC, the Menlo Park VAMC and the Bronx VAMC. The claims file presently contains older records from these facilities. No records from VA facilities in New York or California have been obtained since the filing of the present claim. The RO should clarify with the Veteran the dates of treatment from the above-identified facilities to ascertain if there are current records not yet obtained. Any records not already obtained should be requested. Records generated by VA that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Also, the Veteran in this case is in receipt of disability benefits from the Social Security Agency (SSA). The claims file contains a copy of the SSA decision, but not the underlying treatment records. The decision reflects that the Veteran's reduced concentration was considered in the determination. As one of the disabilities on appeal involves residuals of head trauma, these SSA records may be relevant to the claim and should be requested. Under 38 U.S.C.A. § 5107(a), VA's duty to assist specifically includes requesting information from other Federal departments or agencies. Where there has been a determination that a Veteran is entitled to SSA benefits, the records concerning that decision are often needed by the VA for evaluation of pending claims and must be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Additionally, there appears to be outstanding private treatment records pertinent to the appeal. In a September 2008 VA Form 21-4142, the Veteran reported receiving treatment at Immunology Clinic ENT by Dr. T. It does not appear that these records have been requested. 38 C.F.R. § 3.159(c)(1) defines reasonable efforts in obtaining records outside the custody of the federal government as "an initial request for the records, and, if the records are not received, at least one follow-up request." A remand is also necessary to obtain medical opinions on the claims in this case. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(4) (2013). With regard to the claim for increase, it is unclear from VA examination reports of October 2008 and November 2011 whether there is a loss of all upper and lower anterior teeth, or all upper and lower posterior teeth, where the lost masticatory surface cannot be restored by a suitable prosthesis. This information is needed to determine whether the next higher rating may be assigned under Diagnostic Code 9913, the code assigned to the Veteran's disability. With regard to the claimed residuals of a head injury, the Veteran was diagnosed with a traumatic brain injury (TBI) on VA examination in December 2011. Service treatment records show a head injury, to include a concussion, with loss of consciousness in 1976, and a second head injury in July 1980. The December 2011 examiner offered no opinion as to whether any current TBI residuals are due to an injury in service. This information must be obtained. With regard to the claimed sleep disorder, the Veteran complains of having chronic insomnia that arose during service. A December 2009 VA treatment record shows complaints of daytime somnolence and non-restorative sleep. On examination, the lungs had a slight prolongation of the expiratory phase. The Berlin questionnaire was positive for a high risk of obstructive sleep apnea. A sleep study was recommended, although the Board cannot point to this study in later records. A VA examination has not been afforded for this claim. A VA examination should be conducted to reconcile the exact diagnosis pertaining to the Veteran's claim for a sleep disorder, and whether any such diagnosis may be related to service. Care should be taken to ascertain whether the sleep problems may be a manifestation of the already service-connected psychiatric disorder, or the traumatic brain injury that is on appeal. Accordingly, the appeal is REMANDED to the RO for the following action: 1. The RO should take appropriate steps to contact the Veteran in order to have him identify all VA treatment received during the course of the appeal. Specifically, the Veteran should be asked to identify general dates of treatment at the Manhattan VA Medical Center, the Palo Alto VA Medical Center, the Menlo Park VA Medical Center, and the Bronx VA Medical Center. Then, the RO should obtain all outstanding VA treatment records pertaining to the Veteran. Do not associate duplicate records with the file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 2. The RO should take all indicated action to obtain a copies of the decision to grant SSA benefits to the Veteran and the medical records that supported that decision and associate them with the claims file. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. The RO also should take all indicated action to contact the Veteran and request that he provide any needed authorization to allow the RO to obtain treatment from Immunology Clinic ENT, Dr. T. Thereafter, the RO should attempt to obtain those records. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 4. The RO then should have the Veteran scheduled for a VA examination to address the current severity of the service-connected status post fracture of the right mandible. The examiner is to be provided access to the claims folder, a copy of this remand, and Virtual VA. In accordance with the latest worksheets for rating dental disorders, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability due to the status post fracture of the right mandible. The examiner is asked to indicate whether there is a loss of all upper and lower anterior teeth, or all upper and lower posterior teeth, where the lost masticatory surface cannot be restored by a suitable prosthesis. A clear rationale for all opinions should be provided as well as a discussion of the medical facts and principles. 5. The RO also should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of any claimed residuals of head trauma. The examiner is to be provided access to the claims folder and Virtual VA in connection with the evaluation. Any and all indicated studies deemed necessary by the examiner should be accomplished. After reviewing the entire record and examining the Veteran, the examiner should offer an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that he suffers from residual disability due to head injury that was sustained during his period of service. In rendering any opinion, the examiner must specifically consider and discuss the Veteran's service treatment records of 1976 documenting a head injury, to include concussion and loss of consciousness, and the 1980 head injury. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 6. The RO also should have the Veteran scheduled for a VA examination to ascertain the nature and likely etiology of the claimed sleep disorder, to include chronic insomnia. The examiner is to be provided access to the claims folder and Virtual VA in connection with the evaluation. Any and all indicated studies deemed necessary by the examiner should be accomplished. After reviewing the entire record and examining the Veteran, the examiner should offer an opinion addressing whether it is at least as likely as not (50 percent probability or greater) that he suffers from a disability manifested by a sleep disorder that had its clinical onset during service. In rendering any opinion, the examiner must specifically reconcile whether the Veteran suffers from a disability manifested by a sleep disorder that is independent of his already-service connected psychiatric disorder, and result of any claimed traumatic brain injury sustained during service. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. All opinions should be supported by a clear rationale, and a discussion of the facts and medical principles. 7. The Veteran is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 8. After the requested examinations have been completed, the RO should review the examination reports to ensure they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 9. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).