Citation Nr: 1544862 Decision Date: 10/21/15 Archive Date: 10/29/15 DOCKET NO. 13-14 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for residuals of a head injury, to include headaches, claimed as a traumatic brain injury (TBI). 2. Entitlement to service connection for a right foot disability. 3. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1976 to November 1980. The Veteran also had service in the United States Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a claim for a disability includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Therefore, the Board will broaden the Veteran's claim for entitlement to service connection for a TBI under Clemens, and consider whether the Veteran is entitled to service connection for a broader claim for residuals of a head injury, claimed as a TBI. The Veteran testified at a Videoconference hearing in November 2014 before the undersigned Veterans Law Judge. Unfortunately, due to technical difficulties, the tape of the hearing was inaudible, and no hearing transcript was able to be prepared. The Veteran was notified of this and afforded the opportunity for another Board hearing, but declined. Following the issuance of the June 2013 supplemental statement of the case, the Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2015). The Virtual VA paperless claims processing system contains VA treatment records dated from February 2003 to May 2013. Other documents on the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal. The Veterans Benefits Management System (VBMS) contains a statement from the Veteran in lieu of his hearing testimony accompanied with a waiver of initial RO consideration dated in April 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking entitlement to service connection for residuals of a head injury in service, to include a TBI. Specifically, he claims that he was hit in the forehead with a metal pipe in service, and has experienced headaches, memory loss, ringing in the ears, and dizzy spells since this injury. The Veteran's service treatment records corroborate his account of a head injury in service; a record dated in June 1978 indicated that the Veteran was hit in the left forehead with a pipe during an altercation. The physician noted that there was no loss of consciousness. On examination, there was a contusion and hematoma of the left forehead. X-ray imaging was negative. It was noted that the Veteran felt "ok." Approximately a week later, the Veteran complained of headaches in the area of the head trauma. He reported that in darkness, he would initially see a small black object directly in front of his left eye, which would disappear in about five minutes. Funduscopic examination revealed an arteriovenous (AV) nick. The Veteran was sent to an ophthalmologist for evaluation. On evaluation at the ophthalmology clinic, the examiner indicated that he could not find any abnormality. He explained that since the "spot" comes and goes, he suspected it was a vitreous floater. The Veteran was afforded a TBI examination in November 2012. The examiner found no evidence that the Veteran ever had a TBI or any residuals of a TBI. The examiner therefore declined to provide any etiology opinions regarding the Veteran's complaints of headaches and/or a TBI. In the brief dated in September 2015, the Veteran's representative argued that the November 2012 examination was inadequate because although the examiner did not find any evidence of a TBI, the examiner should have still opined on a relationship between the Veteran's complaints of headaches and the head injury in service. The representative argued that the Veteran's claim should be expanded to include any residuals of a head injury raised by the Veteran's complaints. In light of the foregoing and under the duty to assist, another VA examination must be obtained which addresses the etiology of any potential residuals of the Veteran's head injury in service, to include his complaints of headaches. As to the claim for entitlement to service connection for a bilateral foot disability, the Veteran contends that he has bilateral foot disabilities related to his physical duties as an Infantryman in service. He argues that his service treatment records did not reveal any foot problems upon entry into service; however, they demonstrated complaints of and treatment for foot problems during service. The Veteran's service treatment records revealed that upon entry into service, the Veteran did not complain of foot trouble and his feet were evaluated as normal on examination. In December 1976, the Veteran complained of left ankle pain for three to four days. The Veteran was referred to podiatry and the assessment was Achilles tendonitis of the left foot. In March 1977, the Veteran complained of numbness on the lateral aspect of both feet since entering service. The Veteran denied any history of trauma. On examination, there was no point tenderness, and sensation was within normal limits. In April 1977, the Veteran complained of numbness of the left foot for the past three months. He also noted pain when marching. He was prescribed inlays and referred to podiatry. In May 1977, the Veteran complained of sore feet and numbness for the past two months. He indicated that his feet hurt when running. In January 1978, the Veteran reported that he twisted his right ankle going up stairs. On examination, he had full range of motion of his right ankle. In a treatment record dated in 1980, the Veteran complained of left foot pain for a day; he indicated that he had twisted his ankle. The assessment was a sprain. There was no separation examination or report of medical history of record. However, following active duty, a reenlistment examination for the Army Reserves in 1982 did not show any diagnosed foot disabilities. Post-service private treatment records dated in November 2012 showed a mild hallux valgus deformity and small posterior calcaneal spurs of the bilateral feet. In a VA examination of the feet in October 2012, the examiner diagnosed tarsal tunnel syndrome and hammer toes of the bilateral feet. The examiner found that the Veteran's foot disability was less likely than not incurred in or caused by his claimed in-service injury, event, or illness. The examiner explained that the Veteran had clinical evidence of tarsal tunnel syndrome bilaterally. The examiner found that there was no evidence that the Veteran had this condition in service, or that any injury or event occurred that could have led to a pressure phenomenon where tarsal tunnel could have developed. The Board finds this opinion to be inadequate because the examiner failed to consider the Veteran's numerous complaints related to his feet in service. Moreover, the VA examiner only addressed the Veteran's bilateral tarsal tunnel syndrome in her opinion, and did not address the Veteran's other diagnosed foot disorders, to include bilateral hallux valgus with calcaneal spurs and bilateral hammer toes. In light of the foregoing, another VA examination must be obtained which addresses the etiology of any currently diagnosed foot disability, to include bilateral tarsal tunnel syndrome, bilateral hallux valgus with calcaneal spurs, and bilateral hammer toes, with consideration of the documented complaints of and treatment for foot problems in service. While on remand, updated treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. Follow the procedures for obtaining the records set forth by 38 C.F.R. § 3.159(c). If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the Veteran should be afforded a VA examination, with an appropriate examiner, in order to obtain a medical opinion as to the nature and etiology of his claimed residuals of a head injury in service, to include headaches. The claims file, including a copy of this remand, must be provided to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. Based on a review of the Veteran's claims file, and after a thorough examination, the examiner is asked to: (a) Identify whether the Veteran has any currently diagnosed headaches disability. (b) If the Veteran has any currently diagnosed headaches disability, provide an opinion as to whether there is a 50 percent or better probability that any diagnosed headaches disability is related to the Veteran's active duty service, to include his head injury in service. In rendering an opinion, the examiner should note and discuss the incident in service in June 1978 in which the Veteran was hit in the left forehead with a pipe during an altercation. The examiner should discuss the Veteran's complaints of headaches in the area of the head trauma. The examiner should consider and discuss the Veteran's subjective history as well as the pertinent medical evidence of record. The examiner must provide a rationale for any opinions expressed and reconcile any contradictory evidence of record. If the examiner is unable to render an opinion, he/she should so state with supporting rationale. 3. After completing the development in step 1, the Veteran should be afforded a VA examination, with an appropriate examiner, in order to obtain a medical opinion as to the nature and etiology of any diagnosed bilateral foot disability, to include bilateral tarsal tunnel syndrome, bilateral hallux valgus with calcaneal spurs, and bilateral hammer toes. The claims file, including a copy of this remand, must be provided to and be reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. Based on a review of the Veteran's claims file, and after a thorough examination, the examiner is asked to: (a) Identify all currently diagnosed foot disabilities, to include bilateral tarsal tunnel syndrome, bilateral hallux valgus with calcaneal spurs, and bilateral hammer toes. (b) Provide an opinion as to whether there is a 50 percent or better probability that any diagnosed foot disability, to include bilateral tarsal tunnel syndrome, bilateral hallux valgus with calcaneal spurs, and bilateral hammer toes, is related to the Veteran's active duty service, to include his physical duties as an Infantryman in service. In rendering an opinion, the examiner should note and discuss the Veteran's complaints of foot pain and numbness in service, and the treatment related thereto. The examiner should consider and discuss the Veteran's subjective history as well as the pertinent medical evidence of record. The examiner must provide a rationale for any opinions expressed and reconcile any contradictory evidence of record. If the examiner is unable to render an opinion, he/she should so state with supporting rationale. 4. Thereafter, adjudicate the issues on appeal. If any benefit sought remains denied, a supplemental statement of the case should be provided to the Veteran and his representative after according the requisite time to respond. The matter should then be returned to the Board for appropriate appellate review. 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 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).