Citation Nr: 1604019 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 14-10 758 ) DATE ) ) On appeal from the Department of Veterans Affairs in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a left leg disorder. 2. Entitlement to service connection for a right leg disorder. 3. Entitlement to service connection for residuals of a head injury. 4. Entitlement to service connection for a back disorder. 5. Entitlement to service connection for vision loss, to include as due to inservice head trauma. 6. Entitlement to service connection for bilateral hearing loss, to include as due to inservice head trauma. 7. Entitlement to service connection for an arm disorder. 8. Entitlement to service connection for headaches, to include as due to inservice head trauma. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Board WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to January 1971, followed by service in the Army Reserve and the Army National Guard of Mississippi, to include one or more periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in May 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. It was preceded by RO action in November 2009, based on the same claim received in October 2009 as was the basis for the May 2010 action, denying service connection for residuals of a head injury. Additional, pertinent evidence was seemingly submitted by the Veteran following the RO's receipt of his substantive appeal in March 2014. That evidence consists of records involving private audiological testing of the Veteran submitted in April 2014. Also there was submitted in April 2015 two VA Disability Benefits Questionnaires (DBQs) only one of which was signed and dated in June 2014, as to the thoracolumbar spine and the eyes. Such documents do not appear to have been completed by VA medical professionals, but at least one, the spinal DBQ, was compiled by an attending private physician, H. Patel, M.D. The DBQ for the spine contains diagnoses which are not entirely legible; the DBQ for the eyes indicates that the Veteran did not then or previously have an eye disorder. The evidence referenced above appears to have been submitted by the Veteran and, thus, a change in the law effectuated by the Honoring America's Veterans and Caring for Lamp Lejeune's Families Act of 202, Public Law 112-154, (providing that RO consideration is not required for evidence submitted by the appellant or his/her representative where the substantive appeal is received on or after February 2, 2013), is for application in this instance. However, in light of the fact that other reasons warrant remand of the issues on appeal, that evidence should be considered by the Agency of Original Jurisdiction (AOJ) while the case remains in remand status. The issues on appeal are herein REMANDED to the AOJ and the AOJ will advise the Veteran if further action is required on his part. REMAND In addition to the Veteran's period of active duty from February 1969 to January 1971, he served in the U.S. Army Reserve and then in the Army National Guard of Mississippi. The record indicates that the Veteran was ordered to active duty for training (ACDUTRA) for a 45-day period beginning in or about May 1974, but it is unclear what other periods of ACDUTRA and/or inactive duty training (INACDUTRA) occurred following his release from active duty in January 1971. Remand to verify the dates of all service, verification of all periods of ACDUTRA and INACDUTRA, and to obtain all available service examination and treatment records, particularly for the Reserve and National Guard service, is necessary. One of the Veteran's primary allegations is that he sustained inservice head trauma in January 1971 and was hospitalized for several days for treatment at an Air Force medical facility in Germany. Thereafter and while he remained on active duty, the Veteran reports developing headaches and related visual and auditory difficulties as a result of his inservice head trauma. To date, no VA examination has been afforded the Veteran for the purpose of verifying his claimed residuals of that trauma as well as the headaches and hearing and/or vision loss related thereto and, based on the reported allegations, VA examinations are indicated. Notice is taken that the RO in rating action in November 2009 found that head trauma clearly and unmistakably preexisted service, based on a reported history of a car accident involving head trauma prior to service; however, no residuals of head trauma were noted on an induction medical examination in September 1968 and thus, the presumption of soundness at service entry is raised in this instance, see 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.103 (2015), that can only be overcome with a showing that the disorder clearly and unmistakably preexisted service and was not aggravated thereby. See 38 C.F.R. § 3.306 (2015). The record further includes the Veteran's April 2011 account as to his receipt of disability benefits from the Social Security Administration (SSA) and its reported cessation, but it also includes a Report of General Information, dated in May 2015, in which he reported that he was again receiving SSA benefits. Records relating to the Veteran's receipt of SSA disability benefits under Titles II and/or XVI have not to date been requested or received for VA review in connection with the claims for VA compensation herein at issue. Also, as indicated above, the record includes two DBQs, one of which is unsigned and one of which contains diagnoses which are illegible. In light thereof, the RO should on remand contact the Veteran and request that he provide legible, signed copies of those documents or any other evidence from the applicable provider(s). Accordingly, this matter is REMANDED for the following actions: 1. Verify the specific dates of all periods of active duty, Reserve, and Army National Guard service of the Veteran, including all periods of ACDUTRA and INACDUTRA served by him. As well, all service department examination and treatment records not already on file pertaining to his periods of Reserve and National Guard service should be obtained and added to the electronic claims folder. Those efforts should be undertaken until the information and/or records requested have been obtained and associated with the Veteran's VA claims folder or until it is found in a formal determination that the records/data sought do not exist or that further efforts to obtain same would be futile. Notice of that formal determination as to the unavailability of records or verifying data should then be furnished to the Veteran in writing. 2. Obtain all pertinent VA treatment records not already on file for inclusion in the Veteran's VA electronic claims folder. 3. Obtain all records developed and utilized by the SSA as to its determination of the Veteran's permanent and total disablement for inclusion in his VA electronic claims folder. 4. Contact the Veteran in writing to ascertain whether it was he or his representative who submitted DBQs as to the thoracolumbar spine and eyes to VA in April 2015 and, if his response is in the affirmative, request that he provide clarifying information, including but not limited the diagnoses identified with respect to the thoracolumbar spine and the name and signature of the medical professional who determined that no eye disorder was then or previously in existence. He should also be advised of his right to submit any additional information from those or other medical providers. Any clarifying information received should then be made a part of the Veteran's VA claims folder. 5. Thereafter, schedule the Veteran for VA examinations in order to ascertain more clearly the nature and etiology of his claimed head trauma disability and related disorders involving headaches, hearing loss, and loss of vision. The Veteran's electronic claims folder in its entirety must be made available to and reviewed by each examiner for use in the study of this case. Those examinations should include a detailed review of the Veteran's medical history and current complaints, as well as comprehensive clinical examinations and any and all indicated diagnostic testing deemed necessary by each examiner. All pertinent diagnoses should be outlined. --The VA head examiner should be asked to provide a medical opinion with full supporting rationale as to the following: Is it at least as likely as no (50 percent or greater probability) that any existing disorder involving claimed inservice head trauma originated in service or is otherwise attributable to service? --The VA neurological examiner should be asked to provide a medical opinion with full supporting rationale as to the following: Is it at least as likely as not (50 percent or greater probability) that any existing disorder involving headaches originated in service or is otherwise attributable to service or any inservice event, inclusive of head trauma? --The VA audiological examiner should be asked to provide a medical opinion with full supporting rationale as to the following: Is it at least as likely as not (50 percent or greater probability) that any hearing loss of the Veteran originated in service or is otherwise attributable to service or any inservice event, inclusive of head trauma? Also, was any sensorineural hearing loss of either ear present during the one-year period immediately after service, and, if so, how was it manifested and to what degree? --The VA eye examiner should be asked to provide a medical opinion with full supporting rationale as to the following: Is it at least as likely as not (50 percent or greater probability) that any existing disorder involving either eye originated in service or is otherwise attributable to service or any inservice event, inclusive of head trauma? 6. Lastly, readjudicate the issues on appeal, based on all of the evidence of record including that made a part of the record since issuance of the statement of the case in February 2014, and if any benefit sought is not granted to the Veteran's satisfaction, provide him with a supplemental statement of the case and afford him a reasonable period for a response, before returning the case to the Board for additional review. No action by the appellant is needed until he is further advised. The appellant 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 (West 2014). ______________________________________________ M. E. LARKIN 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).