Citation Nr: 1327948 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 09-45 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI). 2. Entitlement to service connection for hepatitis C. 3. Entitlement to service connection for spinal meningitis. 4. Entitlement to an initial disability rating in excess of 10 percent for residuals of prostate cancer, status post radical prostatectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from April 1968 through December 1969, including service in the Republic of Vietnam from June through December of 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which granted service connection for prostate cancer residuals, effective from August 20, 2007, with a 10 percent initial disability rating, and denied service connection for TBI, hepatitis C, and spinal meningitis. A timely Notice of Disagreement in which the Veteran disputed the initial disability rating assigned for his prostate cancer residuals and the RO's denials of service connection for TBI, hepatitis C, and spinal meningitis was received in December 2008. After a Statement of the Case addressing those issues was mailed to the Veteran in November 2009, the Veteran perfected his appeal later that month, via VA Form 9 substantive appeal. The Veteran testified during a May 2013 Board hearing that was held before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the record. This appeal also initially included the issue of entitlement to service connection for PTSD. That claim was ultimately granted by the RO in a June 2012 rating decision, with a 30 percent initial disability rating, effective from August 20, 2007. The Veteran has not asserted any ongoing disagreement with either the initial disability rating or the effective date assigned for his service-connected PTSD. Accordingly, that issue does not remain on appeal before the Board. The issue of entitlement to service connection for TBI is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's hepatitis C has not been shown as having been sustained during his active duty service or as being related to an injury or illness sustained during active duty service. 2. During his May 2013 hearing, the Veteran, through his accredited representative, indicated that he wished to withdraw his appeal of the denial of service connection for spinal meningitis. 3. For all periods relevant to this appeal, the Veteran's prostate cancer has remained in remission. 4. The evidence shows that, prior to May 28, 2013, the Veteran's prostate cancer residuals have included occasional urinal "dribbling" that did not require the use of any absorbent material, nocturia which required the Veteran to void twice per night, and daytime urinary frequency that required the Veteran to void approximately once every two to two and a half hours. 5. The evidence shows that, from May 28, 2013, the Veteran's prostate cancer residuals have included ongoing urinal "dribbling" that still does not require the use of any absorbent material, nocturia which required the Veteran to void four times per night, and daytime urinary frequency that required the Veteran to void approximately once every one to two hours. CONCLUSIONS OF LAW 1. The criteria for service connection for hepatitis C have not been met. 38 U.S.C.A. §§ 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). 2. The Veteran's substantive appeal as to the issue of entitlement to service connection for spinal meningitis is withdrawn. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2012). 3. The criteria for an initial disability rating in excess of 10 percent for residuals of prostate cancer, status post radical prostatectomy, prior to May 28, 2013, have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.56, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2012). 4. The criteria for an initial disability rating of 20 percent, and no more, for residuals of prostate cancer, status post radical prostatectomy from May 28, 2013 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.56, 4.115a, 4.115b, Diagnostic Codes 7527, 7528 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding his appeal as to the issue of entitlement to service connection for hepatitis C, a pre-rating letter dated October 2007 notified the Veteran of the information and evidence needed to substantiate his claim. Consistent with Dingess, these letters also notified the Veteran that a disability rating and an effective date are assigned where a disability is determined to be service-connected. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's July 2008 rating decision. Thus, because the VCAA notice that was provided was legally sufficient, VA's duty to notify has been satisfied. With regard to the Veteran's claim for a higher initial disability rating for prostate cancer residuals, a pre-rating letter mailed to the Veteran in September 2007 provided notice of the information and evidence needed to substantiate his claim for service connection for prostate cancer residuals. This notification would also apply to the "downstream" issue of entitlement to a higher initial disability ratings for that disability. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional VCAA notice is not required and any defect in the notice is not deemed prejudicial to the Veteran. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Thus, because the VCAA notice concerning the issues of service connection for prostate cancer residuals was legally sufficient, VA's duty to notify as to the issue of entitlement to a higher initial disability rating for that disability has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, VA treatment records, identified and relevant private treatment records, claims submissions, lay statements, and hearing transcript have been associated with the record. A VA examination to assess the nature and etiology of the Veteran's hepatitis C was performed in October 2009. VA examinations to explore the current severity of the Veteran's prostate cancer residuals were also performed in April 2008 and June 2012. These examinations, along with the other evidence of record, are fully adequate for the purposes of determining the cause of the Veteran's hepatitis C and the extent of the disabilities associated with the Veteran's prostate cancer residuals in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As will be discussed in greater detail below, the Veteran did testify as to the current severity of his prostate cancer residuals during his hearing before the undersigned, and such testimony did portray a worsening of his symptoms since the June 2012 VA examination. Generally, when there is credible evidence of a worsening since the last VA examination, the appropriate course is to remand the case for a new examination to obtain an accurate picture of the current severity of the disability at issue. Here, however, the Board notes that the symptoms discussed by the Veteran and contemplated by the rating criteria are entirely the type of symptoms that are observable by a lay person. Under these circumstances, the Board finds that the Veteran's testimony is sufficient to provide an accurate and fully informed view of the severity of his disability, and that remanding the case for a new examination would only needlessly delay adjudication of the claim. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). A. Hepatitis C In his claims submissions, the Veteran alleges generally that he is entitled to service connection for hepatitis C. In remarks made during an October 2009 VA examination and his May 2013 hearing, the Veteran appears to allege that his hepatitis C was likely the result of high-risk sexual activity during service. Indeed, service treatment records show that the Veteran was treated for gonorrhea during service, from 1968 through 1969. Post-service private treatment records show that the Veteran was initially diagnosed with hepatitis C following laboratory testing in November 2001. Follow-up private treatment records from April 2002 reflect complaints at that time of bilateral knee, lower leg, and foot pain that had been ongoing intermittently over the past one to two years. Subsequent private and VA treatment records through September 2009 do not reflect any regular treatment for hepatitis C, nor do they indicate any reported symptoms associated with hepatitis C. Notably, the VA treatment records reflect various known risk factors for hepatitis C. During treatment in April 2009, the Veteran admitted a history of illicit drug use and reported that he was drinking a half pint of hard liquor every night. In September 2009, he elaborated that he used cocaine through the late 1980's. During the aforementioned October 2009 VA examination, which was performed in conjunction with the VA examiner's review of the claims file, the VA examiner noted multiple risk factors for hepatitis C in the Veteran's history. Such risk factors included sexual activity during service in Vietnam; history of nasal administered cocaine use during the 1970's; and a period of incarceration from 1971 through 1975. During the examination, the examiner reviewed recent laboratory results which were confirmed as indicating hepatitis C. A physical examination of the Veteran was grossly normal. Based upon her review of the claims file and the Veteran's reported history, the examiner opined that it is less likely than not that the Veteran's hepatitis C was caused by his high risk sexual activity during service. As rationale, the examiner noted that the preponderance of the medical literature states that high-risk sexual activity is a "very low-risk for hepatitis C transmission." The examiner noted further that comparatively, nasal cocaine is considered by the medical literature as being a more significant risk. Further, the examiner stated, the Veteran's period of incarceration from 1971 through 1975 placed him in a population particularly known for a higher prevalence of hepatitis C, and, that there was a high potential that the Veteran was exposed to the hepatitis C virus during his imprisonment via such commonplace activities and items such as barbers and razors. In view of these comparatively higher risk factors from the Veteran's history, the examiner concluded that it is less likely than not that the Veteran's hepatitis C was a result of his high-risk sexual activity during service. The VA examiner's negative October 2009 opinion is rebutted in the record only by the Veteran's assertions that his hepatitis C was the result of his in-service sexual activity. Although there is some support for the Veteran's assertion, such as the service treatment records indicating in-service gonorrhea and indication in the medical literature that sexual activity is recognized as at least a low risk factor for hepatitis C, the Board is inclined to assign far greater probative weight to the VA examiner's October 2009 opinion who explained that otherwise high-risk sexual activity is a far less probable source of Hepatitis C than comparatively higher risk factors in his history. The VA examiner's October 2009 opinion is amply supported by specific findings concerning risk factors which were made from a review of the claims file and a complete an accurate understanding of the Veteran's social and medical history. This opinion is also supported by a recitation of the current state of the medical community's understanding as to the relative degree of risk factors identified in the Veteran's history. Under the circumstances, the Board finds that the VA examiner's negative opinion is entitled to far greater probative weight than the Veteran's assertions. See Woehlaert, 21 Vet. App. at 462 (2007) (concerning rheumatic fever); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) (holding that a layperson is generally not capable of opining on matters requiring medical knowledge). Overall, the preponderance of the evidence is against the Veteran's claim of service connection for hepatitis C. As such, this claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. § 5107(b). B. Spinal Meningitis An appeal consists of a timely filed Notice of Disagreement in writing, and after a Statement of the Case has been furnished, a timely filed Substantive Appeal. See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012). A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204(b) (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. See 38 C.F.R. § 20.204(b) (2012). As noted above, the Veteran disagreed with the RO's denial of service connection for spinal meningitis and perfected an appeal as to those issues. During his May 2013 hearing, the Veteran, through his representative, indicated that he wished to withdraw his appeal as to that issue. The Board finds that this statement qualifies as a valid withdrawal. See 38 C.F.R. § 20.204. Therefore, there remains no allegation of error of fact or law for appellate consideration as to the issue of entitlement to service connection for spinal meningitis. Accordingly, the appeal of the denial of service connection for that disability is dismissed. III. Initial Disability Rating for Residuals of Prostate Cancer Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. Throughout the course of this appeal, the Veteran's prostate cancer residuals have been rated pursuant to 38 C.F.R. § 4.115b , Diagnostic Code (DC) 7527, which provides the criteria for rating injuries, infections, hypertrophy, and postoperative residuals of prostate gland injuries. Disabilities rated under that code are rated in accordance with the criteria for voiding dysfunction or urinary tract infection, whichever is predominant. As indicated in the discussion of the evidence below, the Veteran's prostate cancer residuals have included voiding dysfunction marked by continuous urine leakage and urinary stress incontinence, but has not included urinary tract infections. Accordingly, the criteria for urinary tract infections are not applicable in this case. Under the rating criteria for voiding dysfunction, disability requiring the use of absorbent materials which must be changed less than twice a day warrants a 20 percent disability rating. A 40 percent disability rating is assigned for disabilities marked by the wearing of absorbent materials which must be changed two to four times per day. A maximum schedular 60 percent disability rating is assigned for disabilities requiring the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. Although DC 7257 directs the rater to apply the criteria for voiding dysfunction or urinary tract infection, whichever is predominant, the Veteran's disability in this case appears to have been rated in accordance with the criteria for urinary frequency. Indeed, application of the urinary frequency criteria is appropriate in view of the residuals discussed below. Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (holding that VA must consider potential applications of Title 38 of the Code of federal Regulations, whether or not they have been directly raised by claimant). Under the criteria for urinary frequency, a 10 percent disability rating is assigned for disability marked by daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent disability rating is appropriate for disability marked by daytime voiding interval between one and two hours, or; awakening to void three or four times per night. A maximum schedular 40 percent disability rating is assigned for disability marked by daytime voiding interval less than one hour, or; awakening to void five or more times per night. A. Prior to May 28, 2013 As discussed above, service connection for prostate cancer residuals was granted, effective from August 20, 2007, with a 10 percent initial disability rating. In his appeal, the Veteran seeks a higher initial disability rating. The relevant evidence includes private treatment records from Kaiser Permanente dated from October 2001 through April 2002 which reflect that the Veteran was monitored at that facility for prostate cancer. These records reflect complaints of occasional urinal "dribbling." Overall, however, rectal and genital examinations were grossly normal and no other objectively reported complaints are shown in these records. Subsequent VA treatment records dated from September 2007 through September 2009 show that the Veteran continued to be monitored for prostate cancer. Nonetheless, these records do not indicate any subjectively reported or objectively observed residuals associated with his prostate cancer. In September 2007, the Veteran expressly denied having any incidents of nocturia. During an April 2008 VA examination, the VA examiner noted a history which included the initial diagnosis of prostate cancer in 1998, followed later that year by hospitalization and surgery for prostatectomy. The examiner noted that there was no subsequent history of further surgery or interventions and no indication of metastatic or recurrent prostatic adenocarcinoma. During the examination, the Veteran expressly denied having any symptoms of lethargy, weakness, anorexia, or weight change. He did report, however, nocturia that occurred twice per night and daytime urinary frequency of once every two and a half hours. He also reported minor urinary incontinence manifested by small amounts of dribbling which required the Veteran to change his underwear once per day. Despite these complaints of increased voiding and incontinence, he denied using any pads, diapers, or catheters. In terms of employability, the examiner opined that the Veteran's residuals from prostate cancer did not affect his activities of daily living or his employment. A physical examination of the Veteran revealed residual a well-healed and asymptomatic midline surgical scar as a residual of prostatectomy. No evidence of keloid formation, depression, or fixation. Examinations of the penis and testicles were grossly normal. Urine stains were noted on the Veteran's underwear. Based upon the Veteran's medical history and the objective findings from the examination, the examiner diagnosed prostate cancer residuals which included increased urinary frequency and urinary stress incontinence. In his November 2009 substantive appeal, the Veteran stated that he was going to the bathroom once every two hours. During a June 2012 VA examination, the examiner noted that the Veteran's prostate cancer remained in remission. At that time, reported symptoms included voiding dysfunction marked by urine leakage which still did not require the use of absorbent materials. Interestingly, and in sharp contrast to the previous evidence, the examiner noted that there was no reported increase in urinary frequency. With regard to the Veteran's employability, the examiner opined that the Veteran's prostate cancer still did not affect his ability to work. In summary, the evidence pertinent to the period before May 28, 2013 shows that the Veteran's prostate cancer remained in remission and was manifested by residuals which included minor urine leakage, nocturia occurring twice per night, and increased voiding frequency of once every two to two and a half hours. Despite these residuals, the Veteran did not, at any time, require the use of any absorbent material. As the Veteran did not require the use of any absorbent material, he is not entitled to an initial disability rating in excess of 10 percent under the criteria for voiding dysfunction. Similarly, given the documented frequency of the Veteran's nocturia and intervals between daytime urinary frequency, the Veteran is also not entitled to an initial disability rating in excess of 10 percent under the criteria for urinary frequency. The Board has considered the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, the Board notes that there are no other rating criteria that are applicable to the Veteran's prostate cancer residuals prior to May 28, 2013. Overall, the Veteran is not entitled to an initial disability rating in excess of 10 percent for prostate cancer residuals, for the period before May 28, 2013. To that extent, this appeal is denied. 38 C.F.R. §§ 4.3, 4.7. B. From May 28, 2013 During his May 2013 Board hearing, the Veteran credibly testified that although he was still not using absorbent material, he was required to void once every one to two hours and that he was required to use the bathroom four times per night. Given the foregoing testimony, the Board finds that the Veteran's prostate cancer residuals still include increased urinary frequency that meets the criteria for the assignment of a 20 percent disability rating, and no more. In view of the Veteran's testimony that he does not require the use of absorbent material, a disability rating higher than 20 percent may not be awarded under the criteria for voiding dysfunction. Once again, the Board has considered the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. However, there are no other rating criteria that are applicable to the Veteran's prostate cancer residuals for the period from May 28, 2013. Overall, the Veteran is entitled to an initial disability rating of 20 percent, and no more, for prostate cancer residuals from May 28, 2013. To that extent, this appeal is granted. 38 C.F.R. §§ 4.3, 4.7. C. Other Considerations The Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1), which govern the assignment of extra-schedular disability ratings. However, in this case, the record does not show that the severity of the Veteran's prostate cancer residuals is so exceptional or unusual such as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2012). The threshold factor for extra-schedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and, no extra-schedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show that the Veteran's prostate cancer residuals present an exceptional disability picture that renders inadequate the available schedular ratings. A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. As discussed above, there are higher ratings available under the applicable diagnostic code; however, the Veteran's prostate cancer residuals have not been productive of the manifestations required for a higher disability rating. As such, it cannot be said that the available schedular ratings are inadequate. Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected prostate cancer residuals, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Thun, 22 Vet. App. 111; Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). The Board has also considered whether "staged" disability ratings, beyond those already provided, are warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability ratings. As such, there is no basis for further staged disability ratings in connection with the Veteran's prostate cancer residuals. ORDER Entitlement to service connection for hepatitis C is denied. The Veteran's appeal as to the issue of entitlement to service connection for spinal meningitis is dismissed. An initial disability rating in excess of 10 percent for residuals of prostate cancer, status post radical prostatectomy, prior to May 28, 2013, is denied. An initial disability rating of 20 percent, and no more, for residuals of prostate cancer, status post radical prostatectomy, is granted for the period from May 28, 2013, subject to the laws and regulations governing the payment of monetary benefits. REMAND Regarding the Veteran's entitlement to service connection for a TBI, the Veteran alleged in a January 2010 stressor statement (submitted in support of a prior claim for service connection for posttraumatic stress disorder [PTSD]) that during service in Vietnam, sometime between 6:00 p.m. and 7:00 p.m. on August 7, 1969, he was working in the motor pool when the perimeter of the motor pool in the Veteran's vicinity was struck by an enemy mortar round. According to him, the blast concussion caused him to be thrown into a concrete wall, thereby causing him to strike his head and sustain a concussion, as well as other injuries to his right arm. The Veteran identified that he was attached to the 554th LEM Company at Qui Nhon, Vietnam at the time of the described occurrence. During his May 2013 hearing, he testified that ever since this incident, he experienced headaches and behavioral problems which include agitation and confrontational behavior. In support of this testimony, he stated that he had received two Article 15 reprimands during service due to his allegedly changed behavior, which he believed was due to head injuries sustained in the motor pool incident. Service records obtained to date do not include the Veteran's personnel file. The Board notes, however, that an August 1969 service treatment record does reflect that the Veteran was treated for left hand and right forearm injuries. Although the record does not expressly mention that the Veteran sustained the injuries in an enemy mortar blast or that he sustained head injuries, this record is somewhat consistent with the Veteran's testimony. In view of the foregoing, the Veteran's complete service personnel file may contain additional records which pertain to the August 7, 1969 incident in which the Veteran purportedly sustained his injury. Moreover, the personnel records may contain evidence that pertains to the Veteran's duty performance and purported behavioral changes during service. Accordingly, VA must obtain the Veteran's complete service personnel file. 38 C.F.R. § 3.159(c)(2). During his hearing, the Veteran also testified that he had been diagnosed with a TBI during VA treatment by a Dr. Benninger. VA treatment records that are presently associated with the claims do not reflect such a diagnosis; however, the Board notes that these records encompass treatment only through September 2009. Given the possibility that the Veteran's TBI diagnosis was rendered during VA treatment received after that date, VA must also undertake efforts to obtain all records for VA treatment since September 2009. Also, in order to insure that the evidentiary record is complete, VA should ask the Veteran to identify any private treatment providers who have rendered treatment for his claimed TBI since September 2009. Any records identified by the Veteran should also be obtained. 38 C.F.R. § 3.159. Finally, the Veteran has not yet been provided a VA examination to assess the nature and etiology of his claimed TBI. Consistent with the Veteran's claim, the post-service VA treatment records document ongoing complaints of headaches and dizziness. To the extent that the Veteran has alleged behavioral problems in connection with his claim for service connection for TBI, the post-service treatment records also reflect a complicated medical history which includes service-connected PTSD manifested by such symptoms as agitation, anxiety, sadness, depression, disorganized thought and hallucinations, sleep problems, suicidal and homicidal ideation, irritability, anger, and a history of violent behavior. The records also show that the Veteran has had a long history of alcohol abuse marked by drinking as much as a fifth of hard liquor per night, as noted in a March 2009 Vet Center record. Finally, during a July 2007 Vet Center evaluation, he reported a history of multiple closed head injuries, which included multiple non-service-related motor vehicle accidents in which he struck his head on the windshield. In view of the complicated medical history presented in this case, the Board finds that a VA examination to examine the Veteran's history and symptoms and to determine the nature and etiology of the Veteran's complaints is warranted. To that end, the Veteran should be arranged to undergo a VA examination for his claimed TBI. 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim for service connection for TBI. This letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to obtain additional medical treatment records, to obtain his service personnel file, and to schedule a VA examination for his claimed TBI. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his TBI since September 2009. 2. Obtain records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. Obtain the Veteran's complete service personnel file. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 4. After the above development has been completed to the extent possible, the RO should arrange for the Veteran to undergo a VA examination, to be performed by an appropriate examiner, to determine the nature and etiology of the Veteran's claimed TBI. The entire claims file must be made available to the individual designated to examine the Veteran and the designated examiner must review the entire claims file in conjunction with the examination. All necessary tests and studies should be performed. The examiner should provide a diagnosis pertinent to the Veteran's claimed TBI, and, an opinion as to whether it is at least as likely as not (i.e., is at least a 50 percent probability) that any diagnosed disorder was sustained during his active duty service, or, resulted from an injury or illness sustained during service, to include head injuries sustained in the reported enemy mortar attack in August 1969. If TBI is diagnosed, and the examiner determines that the diagnosed TBI is at least as likely as not related to his active duty service, then the examiner should identify all symptoms associated with the diagnosed TBI. The examiner should also, to the extent possible, differentiate those symptoms attributable to the Veteran's diagnosed TBI from those associated with his PTSD and alcohol use. A report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes consideration of and citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 5. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 6. After completion of the above development, the issue of entitlement to service connection for TBI should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. 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. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs