Citation Nr: 1400044	
Decision Date: 01/02/14    Archive Date: 01/16/14

DOCKET NO.  10-36 099A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA)Regional Office (RO)
in Cheyenne, Wyoming


THE ISSUES

1.  Entitlement to service connection for headaches/traumatic brain injury.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to service connection for a right ankle disorder.

4.  Entitlement to service connection for a left knee disorder.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel


INTRODUCTION

The Veteran served on active duty from October 1984 to November 1992.  His awards and decorations include a Combat Infantryman Badge.

This appeal to the Board of Veterans' Appeals (Board) arose from May 2009 rating decision in which the RO, in pertinent part, denied service connection for headaches/traumatic brain injury, tinnitus, a right ankle disorder, and for service connection for a left knee disorder.  In December 2009, the Veteran filed a notice of disagreement.  A statement of the case (SOC) was issued in July 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2010.   

Subsequently, after the claims were in appellate status, the RO issued a rating decision in October 2011 granting service connection for headaches/traumatic brain injury and for tinnitus; following which there has been no further action by the Veteran.  Accordingly, those claims will be formally dismissed below.  

In January 2012, the Veteran testified during a Board video-conference hearing held before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record.  In connection with the hearing, the undersigned advanced this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2013).   

A December 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.  

The Board's disposition of the service connection claims for headaches/traumatic brain injury and for tinnitus is set forth below.  The service connection claims for disorders of the right ankle and left knee are addressed in the remand following the order; these matters are being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further action.  VA will notify the Veteran when further action, on his part, is required..


FINDINGS OF FACT

In an October 2011 rating decision, VA granted the Veteran's service connection claims for headaches/traumatic brain injury and for tinnitus.


CONCLUSION OF LAW

Because the October 2011 award of service connection for headaches/traumatic brain injury and for tinnitus represents a grant of the benefit sought on appeal with respect to those claims, there remains no case or controversy over those issues affecting the provision of benefits by VA over which the Board may exercise jurisdiction.  38 U.S.C.A. §§ 511, 5107, 7104 (West 2002); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans.  38 U.S.C.A. § 511(a); 38 C.F.R. § 20.101(a). 

One of the principal functions of the Board is to make determinations of appellate jurisdiction.  38 C.F.R. § 19.4.  The Board may address questions pertaining to its jurisdictional authority to review a particular case or issue.  38 C.F.R. § 20.101(d). 

Although the Veteran perfected an appeal to the Board with respect to the denial of service connection claims for headaches/traumatic brain injury and for tinnitus, arising from a May 2009 rating action, in a subsequent rating decision dated in October 2011, both service connection claims were granted. 

Under these circumstances, the Board finds that the service connection claims for headaches/traumatic brain injury, and for tinnitus, which were formerly in appellate status prior to October 2011, have been granted by the decision of a lower adjudicative body, fully resolving the Veteran's appeal as to those claims.  The Veteran was notified of this fact in correspondence from VA dated in October 2011 and in the October 2011 rating decision itself, and, subsequently, he has not in any way disagreed with the RO's determination as to either the assigned effective date or rating.  Hence, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104, 7105 and 38 C.F.R. § 19.4.  In the absence of any justiciable question, the appeal relating to the service connection claims for headaches/traumatic brain injury, and for tinnitus, must be dismissed.  


ORDER

The appeal as to the claim for service connection for headaches/traumatic brain injury is dismissed.

The appeal as to the claim for service connection for tinnitus is dismissed.


REMAND

The Board's review of the claims file reveals that further RO action on the matters remaining on appeal, service connection claims for disorders of the right ankle and left knee, is warranted.  

A brief review of the evidence on file reflects that the Veteran provided a statement in September 2010 explaining the basis for his claims as well as providing testimony at a Board video conference hearing of January 2012.  

With respect to the right ankle, the Veteran maintains that he hurt his ankle in 1992 while on a PT run.  He reports that no X-ray films were taken and that it was assessed as a sprain.  He also states that he was sent to physical therapy 3 times a week for 2 months.  He indicated that he had experienced pain since that time and sought treatment in approximately 2008.  During the interim period, he stated that he treated the ankle condition with Ibuprofen, an ace bandage and rest when possible.  The Veteran indicated that a VA doctor at Fort Mead, SD had opined that the service injury could be the cause of his current problems.  

The service treatment records are negative for any mention of a right ankle injury, and are negative for complaints, clinical findings, treatment or a diagnosis relating to the right ankle.  VA records dated in November 2008 reflect that the Veteran presented himself for treatment following a motor vehicle accident during which a mirror hit his right foot and the right ankle became swelled and bruised.  A January 2009 entry indicated that the Veteran reported some right ankle pain in the past during service, which he described as probably just an ankle sprain.  X-ray films of August 2008 were referenced which revealed evidence of old healed fractures.  X-ray films taken in January 2009 revealed a right medial malleolus bone spur.

Regarding the knee, the Veteran explained that the knee was under constant stress during service due to training exercises entailing 8 mile runs with 65 to 85 pound packs.  He mentioned that in 1991 he did seek treatment for knee problems and underwent therapy.  During service, a record of September 1990 reflects that during a training exercise the Veteran cut himself above the left knee with a knife.  The cut was treated with stitches.  X-ray films of the knees taken during service in December 1990 were normal.  In September 1991, the Veteran was seen for a 2 to 3 week history of left knee pain, with no report of recent trauma.  It was noted that the knee felt like it was locking.  Symptoms of swelling were noted and patellofemoral pain syndrome was assessed.  A February 2009 record documents the Veteran's complaints of knee pain.  

Pursuant to VA's duty to assist a claimant in the development of facts pertinent to the claim, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(4).  In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) noted that the third prong of 38 C.F.R. § 3.159(c)(4), requiring that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83.  

To date, no VA examination has been conducted or medical opinion obtained in conjunction with the service connection claims for disorders of the right ankle and left knee.  In light of the evidence currently on file, the Board believes that the threshold requirements discussed in McLendon are arguably met with respect to these service connection claims, warranting an examination in accordance with the duty to assist.  See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim).  The Board concludes that in order fulfill the duty to assist in providing a complete and adequate examination under the circumstances of this case, the examination should reflect review of the claims file and include an opinion addressing the likelihood of service etiology of the Veteran's claimed conditions.  See Caffrey v. Brown, 6 Vet. App. 377 (1994); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)(i) (2013); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (duty to assist may include "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one").  

The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claims.  See 38 C.F.R. § 3.655 (2013).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the RO should obtain and associate with the claims file any copy(ies) of the notice of the date and time of examination sent to him by the pertinent VA medical facility.  

Prior to arranging for the above-noted examination, to ensure that all due process requirements are met, and the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records,  

As for VA records, the Board observes that it appears that the Veteran receives regular treatment through VA.  A review of the paper and virtual VA file reflects that the Veteran's VA/CAPRI records were last compiled and reviewed in conjunction with the claims on appeal in March 2010, and that these records are current to mid-January 2010.  Hence, it appears that more recent VA records may exist.  The Board emphasizes that records generated by VA facilities 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.  See Dunn v. West, 11 Vet. App. 462,466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611,613 (1992).  Accordingly, the RO should obtain all outstanding, pertinent VA records of evaluation hospitalization, and/or treatment of the Veteran from January 2010, forward, following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claims remaining on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).  In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, any pertinent, outstanding private records.  

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013).  

The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims remaining on appeal.  The RO's readjudication of the claims should include consideration of all evidence added to the record since the last adjudication of the claim in July 2010 (SOC).

Accordingly, these matters are hereby REMANDED for the following action:

1.  Obtain all outstanding, pertinent VA records of evaluation, hospitalization, and/or treatment of the Veteran from January 2010, forward.  Follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities.

2.  Furnish to the Veteran and his representative a letter requesting that the Veteran provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the pending service connection claims for disorders of the right ankle and left knee that is not currently of record.  Specifically request that the appellant provide, or provide appropriate authorization to obtain, any outstanding private medical records.  

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).  

3.  If the Veteran responds, obtain all identified outstanding pertinent records of evaluation and/or treatment not currently of record-to include following the procedures set forth in 38 C.F.R. § 3.159 (2013).  All records and responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.  

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA examination of his ankles, by an appropriate physician, at a VA medical facility.  The entire claims file, to include a complete copy of this REMAND and copies of any relevant Virtual VA records, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.  

The examiner is requested to elicit and record in the examination report the Veteran's lay statements relating to the history, onset, duration, nature and frequency of his claimed disorders of the right ankle and left knee.  All appropriate tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail.  

The examiner should identify by diagnosis any currently manifested conditions of the right ankle and left knee, describing the symptomatology and impairment associated with the diagnosed disorder(s) to the extent possible.  If no disorder is shown on examination, warranting no diagnosis, the examiner should specifically so state for the record and explain why.  

For each diagnosed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder of (a) was incurred in or first manifested during the Veteran's period of active service from October 1984 to November 1992; or, if not (b) was caused or aggravated, (i.e. permanently worsened beyond its natural progress), by a service-connected disability, to particularly include right knee and left thigh conditions.  

In rendering the requested opinions, the examiner should consider and discuss all pertinent medical and lay evidence, to include the Veteran's assertions.

The physician should set forth all examination findings, along with complete rationale for the conclusions reached, in a printed, typewritten record.

5.  If the Veteran fails to report for the scheduled examination, obtain and associate with the claims file any copy(ies) of notice of the date and time of the examination sent to him by the pertinent VA medical facility.  

6.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall v. West, 11 Vet. App. 268 (1998).  

7.  After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claims on appeal in light of all pertinent evidence (to include all that added to the record since the last adjudication of the claim in July 2010) and legal authority.  

8.  If the benefits sought on appeal remains denied, furnish to the Veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND 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).



______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs