Citation Nr: 1337862 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 05-29 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for hypertension, to include as due to service-connected headaches, post basilar skull fracture and subdural hematoma (head injury). 2. Entitlement to service connection for cerebralvascular accident (CVA), to include as due to service-connected head injury. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD) and depression, to include as due to service-connected head injury. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1969 to June 1971, from May 1981 to June 1981, from November 1990 to July 1991, and from September 1991 to December 1991. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a March 2011 decision, the Board denied the claims for service connection for hypertension, CVA, and an acquired psychiatric disorder, to include PTSD, based on direct theories of entitlement. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court or CAVC). In a February 2013 memorandum decision, the Court vacated the Board's decision and remanded the appeal for additional development. The Board has reviewed both the Veteran's physical claims files and his "Virtual VA" file so as to insure a total review of the evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the February 2013 memorandum decision, the Court remanded the Veteran's appeal so that the Board could address the question of entitlement to service connection for hypertension, CVA, and an acquired psychiatric disorder based on secondary theories of entitlement. The Court specifically indicated that a VA examination should be provided to discuss the relationships, if any, between 1) the Veteran's head injury and CVAs; 2) his head injury and hypertension; 3) his hypertension and CVAs; 4) his head injury and mental condition to include depression; and 5) his CVAs and mental condition. The memorandum decision also indicated that all potentially relevant medical evidence not already of record should be obtained and associated with the claims file, to include any 1981 hospitalization records for the Veteran's in-service head injury. The memorandum decision noted that the Veteran was hospitalized at Memphis Memorial Methodist Hospital in Memphis, Tennessee for one week and then was hospitalized for an additional 3-4 weeks at Baptist Hospital in Montgomery, Alabama. Statements from the Veteran and a witness to his fall show that the accident occurred at approximately 1am on June 9, 1981. He was taken to Memphis Memorial Methodist Hospital where he remained for several days. A release slip from Methodist hospital shows that the Veteran discharged himself on June 12, 1981 (however, this appears to be the only record from Memphis Memorial). On June 13, 1981, the Veteran was seen at the emergency room at the U.S. Air Force Regional Hospital at Maxwell AFB, seeking to be admitted there. Records from the line of duty investigation in September 1981 show that the Veteran was hospitalized from June 13-16, 1981, after falling out of his bunk and fracturing his skull. In a record from the orthopedic clinic at Maxwell AFB, it was noted that the Veteran was scheduled for surgery on June 24 and expected to be hospitalized for 3-5 days thereafter. The extent to which he was hospitalized beyond June 16, 1981 is unclear, and no surgery records appear in the claims file. As such, efforts should be made to obtain any outstanding treatment and/or hospitalization records. In Footnote 3 of the memorandum decision, the Court indicated that the earliest VA treatment records in the designated record before the Court were dated in October 1998. In his March 1999 claim, the Veteran stated that all his medical treatment was provided at the VAMC in Montgomery, but it is unclear if VA treatment records exist from prior to 1998. This should be clarified on remand, and any outstanding treatment records should be sought. On page 17 of the memorandum decision, the Court noted that the Veteran had filed a notice of disagreement in March 2003 stating that he believed that the residuals of his injury warranted a higher rating. The Court found this that the Veteran was clearly referring to his in-service skull fracture residuals. A statement of the case was issued in February 2004. Pursuant to 38 C.F.R. §19.29, a statement of the case must contain: (a) A summary of the evidence in the case relating to the issue or issues with which the appellant or representative has expressed disagreement; (b) A summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination; and (c) The determination of the agency of original jurisdiction on each issue and the reasons for each such determination with respect to which disagreement has been expressed. Here, the Court explained in footnote 13 of the memorandum decision that the statement of the case that was issued in February 2004 provided only the regulations under Diagnostic Code 9304, but did not reference Diagnostic Code 8045 or symptoms such as dizziness and memory loss that had been discussed in VA treatment records. This would appear to fail to meet the requirements of §19.29(b). For this reason, and as the Court suggested, the statement of the case that was provided appears to be inadequate, and a new statement of the case should be issued readjudicating the Veteran's increased rating claim for residuals of his service connected traumatic brain injury (TBI) to include consideration of all potentially applicable Diagnostic Codes. In the Veteran's November 2009 VA examination it was noted that he was receiving monthly compensation from the Social Security Administration (SSA), but no effort has been made to obtain any SSA records. This should be done. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify the dates and locations of all medical treatment he received from June 1981 to the present. Then, seek to obtain any identified treatment, including treatment records from Memphis Memorial Methodist Hospital in June 1981, from Baptist Hospital in Montgomery, Alabama from June-July 1981, and from U.S. Air Force Regional Hospital at Maxwell AFB from June-July 1981. The Veteran should also be asked to identify when he first began receiving treatment at VA, and those records should be sought to the extent that they are not already of record. A negative response should be requested if records are found to be unavailable. 2. Obtain VA treatment records from the Montgomery VA Medical Center from April 2013 to the present. 3. Obtain the Veteran's Social Security Administration records. 4. After completing the above, schedule the Veteran for a VA examination(s) to assist in determining the nature and etiology of his currently diagnosed hypertension, cerebral vascular accident (CVA), and psychiatric disorder(s) to include depression. The Veteran's claims folder should be made available to the examiner and a complete rationale should be provided for any opinion expressed. The examiner should answer the following questions: a) Is it at least as likely as not (i.e., at least a 50 percent probability or greater) that the Veteran's CVA was caused or aggravated by his service-connected head injury and/or its residuals (i.e., in-service head injury with basilar skull fracture and subdural hematoma)? b) Is it at least as likely as not (i.e., at least a 50 percent probability or greater) that the Veteran's hypertension was caused or aggravated by his service-connected head injury and/or its residuals? c) Is it at least as likely as not (i.e., at least a 50 percent probability or greater) that the Veteran has a current psychiatric disorder, to include depression, that was caused or aggravated by his service-connected head injury and/or its residuals? In doing so, the examiner should address the suggestion at the Veteran's November 2009 VA examination that his depression was the result of his CVA. d) If it is determined that the Veteran's hypertension was caused or aggravated by the service-connected head injury, then the examiner should opine as to whether it is at least as likely as not (50 percent or greater) that his CVA was caused or aggravated by the hypertension? e) If it is determined that the CVA was caused or aggravated by the service-connected head injury, the examiner should opine as to whether it is at least as likely as not (50 percent or greater) that any psychiatric disorder, to include depression, was caused or aggravated by the CVA. "Aggravation" is defined as a permanent increase in the severity of the underlying disability beyond its natural progression. Temporary flare-ups would not be considered aggravation. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility; rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. 5. Consider the issue of whether a rating in excess of 10 percent is justified for the Veteran's residuals of a TBI, to include headaches, stemming from his initial claim in March 1999 and in accordance with footnote 13 of the February 2013 memorandum decision; if the benefits sought cannot be granted, the RO should issue a statement of the case in accordance with applicable law and regulations. The Veteran and his representative should be informed of the period of time within which he must file a substantive appeal to perfect his appeal to the Board concerning this issue. If a timely substantive appeal is not filed, the issue should not be certified to the Board. If so, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. 6. Thereafter, readjudicate the other claims on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). 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. _________________________________________________ MATTHEW W. BLACKWELDER Acting 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).