Citation Nr: 1343016 Decision Date: 12/27/13 Archive Date: 01/07/14 DOCKET NO. 11-25 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for traumatic brain injury with concussion residuals. 2. Entitlement to service connection for cognitive learning disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1976 to August 1980. She had additional military reserve service including from February 1981 to May 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in July 2008 and September 2008 by the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In May 2012, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues on appeal were adequately explained to her and the submission of evidence which she may have overlooked and which would be advantageous to her position was suggested. See 38 C.F.R. § 3.103(c) (2013). 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 VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate her claims in October 2007. VA's duty to assist requires reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim. 38 C.F.R. § 3.159 (2012). Records held within VA control are considered to be a part of the record. See Bell v. Derwinski, 2 Vet. App. 611 (1992). VA's duty to assist includes conducting a thorough and contemporaneous medical examination. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991) (where the record does not adequately reveal the current state of the claimant's disability, a VA examination must be conducted). In this case, the Veteran contends that she has traumatic brain injury with concussion residuals and a cognitive learning disorder as a result of a head injury she sustained in a motor vehicle accident during active service in May 1979. Service treatment records show she arrived at a private hospital in a comatose state and began to regain consciousness after medications were administered. The discharge diagnoses included cerebral concussion. VA records show service connection has been established for major depressive disorder and organic mood disorder by history and for diplopia with right eye exotropia as a result of her injuries in May 1979. VA and private medical opinions of record, however, include inconsistent opinions as to whether the Veteran has present traumatic brain injury with concussion residuals and a cognitive learning disorder. The Board notes that the Veteran underwent a VA neuropsychology evaluation in August 2008, but that pertinent VA and private treatment have been added to the record since that examination. In May 2012, the Veteran provided authorization for VA assistance in obtaining copies of pertinent private medical records and provided a private medical statement without waiver of RO consideration. See 38 C.F.R. § 20.1304 (2013). Therefore, the Board finds further development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who provided any treatment pertinent to the issues on appeal. After the Veteran has signed the appropriate releases, any indicated records should be obtained and associated with the claims folder. Whether or not the Veteran responds appropriate efforts must be taken to obtain pertinent VA treatment records, unless further efforts would be futile. All attempts to procure records should be documented in the file. If any records identified by the Veteran cannot be obtained she should be provided a notice to (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts made to obtain those records; (c) describe any further action to be taken by VA with respect to the claims; and (d) explain that she is ultimately responsible for providing the evidence. 2. Following completion of the above, schedule the Veteran for a VA examination by a neuropsychologist, or other appropriate medical specialist, for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that she has traumatic brain injury with concussion residuals and/or a cognitive learning disorder as a result of a head injury during active service. Any tests or studies necessary for adequate opinions must be completed. The examiner should summarize the pertinent evidence of record and reconcile any opinion provided with the other medical opinions of record. Opinions should be provided based on the results of examination, a review of the service treatment and post-service medical evidence of record, and sound medical principles. All examination findings, with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After completion of any additional development deemed necessary, the issues on appeal should be readjudicated with consideration of all evidence of record. If any benefit sought remains denied, the Veteran and her representative should be furnished a supplemental statement of the case and should be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. 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. 2013). _________________________________________________ F. JUDGE FLOWERS 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).