Citation Nr: 1606970	
Decision Date: 02/24/16    Archive Date: 03/01/16

DOCKET NO.  13-03 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Whether new and material evidence has been received to reopen the claim for entitlement to service connection for right maxillary sinusitis (claimed as breathing condition). 

2.  Entitlement to service connection for a breathing condition also claimed as right maxillary sinusitis.  

3.  Entitlement to service connection for a lumbar spine disability.  

4.  Entitlement to service connection for a cervical spine disability.  

5.  Entitlement to service connection for an acquired psychiatric disorder to include major depressive disorder.

6.  Entitlement to service connection for a dental disability to include loss of all teeth.

7.  Entitlement to an evaluation higher than 10 percent for residual scar laceration to right forehead. 

8.  Entitlement to an initial evaluation higher than 10 percent for traumatic brain injury (also claimed as skull injury facial fractures and headaches). 

9.  Entitlement to an initial compensable rating for bilateral hearing loss. 

10.  Entitlement to an initial evaluation higher than 10 percent for tinnitus.  


REPRESENTATION

Appellant represented by:	Andrew Werner, Attorney at Law 


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

T. S. Willie, Counsel 


INTRODUCTION

The Veteran had active service from May 1970 to November 1973.   

This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.

In November 2015, the Veteran testified during a travel board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

Although the Veteran's initially filed a claim for service connection for right maxillary sinusitis, the Board has recharacterized the issue as entitlement to service connection for a breathing condition also claimed as right maxillary sinusitis to include any and all diagnoses raised by the record.  Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The Board recognizes that during the November 2015 hearing the Veteran's representative raised the issue of entitlement to service connection for vertigo as secondary to the service connected tinnitus.  The Veteran and his representative are advised that a claim for benefits must be submitted on the application form prescribed by the Secretary.  38 C.F.R. §§ 3.1(p), 3.155, 3.160 (2015). 

The Board notes that a claim of service connection for a dental disability is also considered a claim for VA outpatient dental treatment.  Mays v. Brown, 5 Vet. App. 302, 306 (1993).  In dental claims, the RO adjudicates the claim for service connection and the VA Medical Center adjudicates the claim for outpatient treatment.  As the current issue of entitlement to service connection for a dental disability stems from an adverse determination by the RO, the appeal on that matter is limited to the issue of service connection for compensation purposes.  Therefore, the claim of entitlement to VA outpatient dental treatment is REFERRED to the RO for further referral to the appropriate VA medical facility.  See 38 C.F.R. § 17.161.

The issues of entitlement to service connection for right maxillary sinusitis, lumbar spine disability, cervical spine disability, a dental disability to include loss of all teeth and an acquired psychiatric disorder to include major depressive disorder, and entitlement to an initial evaluation higher than 10 percent for traumatic brain injury (also claimed as skull injury facial fractures and headaches) are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Service connection for right maxillary sinusitis was last denied in a May 2007 rating decision.  The evidence added to the record with regard to sinusitis since the May 2007 rating decision is not cumulative or redundant, cures a prior evidentiary defect and raises a reasonable possibility of substantiating the claim.

2.  Residual scar laceration to right forehead is not manifested by visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features nor is there a showing of two or three characteristics of disfigurement.  

3.  The Veteran's bilateral hearing loss is manifested by no more than level I hearing for the right ear and level III hearing for the left ear.

4.  The Veteran's service connected tinnitus is assigned a 10 percent evaluation, the maximum schedular evaluation authorized under Diagnostic Code 6260.


CONCLUSIONS OF LAW

1.  The May 2007 rating decision denying service connection for right maxillary sinusitis is final.  New and material evidence to reopen the claim for service connection for right maxillary sinusitis has been received and the claim is reopened.  38 U.S.C.A. §§ 5108, 7104 (West 2014); 38 C.F.R. §§  3.156 (a), 3.159 (2015).

2.  The criteria for a rating higher than 10 percent for residual scar laceration to right forehead have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804.  

3.  The criteria for an initial compensable rating for bilateral hearing loss are not met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100.

4.  There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for tinnitus.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.87, Diagnostic Code 6260; Smith v. Nicholson, 451 F.3d 1344 Fed. Cir. 2006.





REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) 

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein.  There is no issue as to providing an appropriate application or the completeness of the application.  By correspondence dated in March 2010 and April 2010, VA advised the Veteran of the information and evidence needed to substantiate the claims.  The letters provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  The Veteran was also provided information regarding the assignment of disability ratings and effective dates.  

VA has also satisfied its duty to assist.  The claims folder contains service treatment records, VA medical records/VA examinations, and identified private medical records.  No additional pertinent records are shown to be available, and the appellant does not argue otherwise.

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

NEW AND MATERIAL 

Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed.  38 U.S.C.A. §§ 7104(b), 7105(c).  An exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

In determining whether evidence is new and material, the credibility of the evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).  Evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board.  Anglin v. West, 203 F.3d 1343, 1347 (2000).  In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis.  Evans v. Brown, 9 Vet. App. 273, 285 (1996).

The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low.  See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  Shade, 24 Vet. App. at 117.  

The Veteran appeals the denial to reopen the claim for entitlement to service connection for right maxillary sinusitis.  In a June 1975 rating decision, service connection for right maxillary sinusitis was denied.  The RO noted that the Veteran was involved in an automobile accident in 1973 and sustained injuries to the right maxillary area but it was found that on VA examination the injuries were described as healed.  The Veteran did not appeal that decision nor did he submit new and material evidence within a year of the decision.  The decision became final. 

In a May 2007 rating decision, the RO declined to reopen the claim for service connection for right maxillary sinusitis as they found that the evidence failed to show that the Veteran had sinusitis.  The Veteran did not appeal that decision nor did he submit new and material evidence within a year of the decision.  The decision became final.

After reviewing all of the evidence of record available at the time of the May 2007 rating decision and in light of the evidence received since that decision to include the lay statements of record, the June 2009 showing of sinusitis and outpatient treatment records prescribing nasal spray, the Board finds that the new evidence raises a reasonable possibility of substantiating the appellant's claim of entitlement to service connection for right maxillary sinusitis also claimed as a breathing problem.  Accordingly, the claim is reopened.

RATINGS 

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule).  38 U.S.C.A. § 1155 ; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder.  The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007).

Residual scar laceration to right forehead

The Veteran appeals the denial of a rating higher than 10 percent disabling for residual scar laceration to right forehead.  His disability is rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804.  Under DC 7800, burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck warrant a 10 percent rating with one characteristic of disfigurement.  A 30 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement.  A 50 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement.  An 80 percent rating is warranted with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement.

The 8 characteristics of disfigurement for purposes of evaluation under Diagnostic Code 7800 are: A scar 5 or more inches (13 or more cm.) in length; a scar at least one-quarter inch (0.6 cm.) wide at widest part; the surface contour of a scar is elevated or depressed on palpation; a scar adherent to underlying tissue; hypo-or hyper-pigmented scarring in an area exceeding six square inches (39 sq. cm.); abnormal skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); missing underlying soft tissue in an area exceeding six square inches (39 sq. cm.); and skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.).

Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation.  Three or four scars that are unstable or painful warrant a 20 percent evaluation.  Five or more scars that are unstable or painful warrant a 30 percent evaluation.  Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  

Based on the evidence presented, the Board finds against the claim.  To that end, July 2010 VA examination disclosed a well healed curvilinear scar above the right eyebrow and anterior surface of the nose.  The scar above the eyebrow was .1 cm in width and 6.3 in length.  Although there was no skin breakdown over scar, the Veteran reported pain.  The scar was superficial but without inflammation, edema, keloid formation, abnormal texture and/or hypo or hyper pigmentation.  The skin was not indurated or inflexible, contour was not elevated or depressed and was not adherent to underlying tissue.  There were no other disabling effects. 

The scar on the anterior surface of the nose had no skin breakdown over the scar and was without pain.  The scar above the eyebrow was .1 cm in width and 2.2 in length.  It was superficial but without inflammation, edema, keloid formation, abnormal texture and/or hypo or hyper pigmentation.  The skin was not indurated or inflexible.  Contour was depressed but was not adherent to underlying tissue.  There were no other disabling effects.

The Board finds that the above findings do not warrant a rating higher than 10 percent for residual scar laceration to right forehead.  There is no showing of three or four scars that are unstable or painful and no showing of visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or two or three characteristics of disfigurement.  At no time during this appeal has the scar laceration to right forehead been of the severity and/or of size so as to warrant a rating higher than 10 percent under the rating criteria pertaining to scars.  See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804.  Accordingly, the claim is denied.

Hearing Loss 

Service connection for bilateral hearing loss was granted in a July 2010 rating decision.  The RO assigned a noncompensable evaluation under 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100, effective April 15, 2010.  The Veteran appeals the assignment of a noncompensable rating.  

The assignment of disability ratings for hearing impairment is derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann v. Principi, 3 Vet. App. 345 (1992). 

The severity of a hearing loss disability is determined by applying the criteria set forth at 38 C.F.R. § 4.85.  

Under these criteria, evaluations of bilateral hearing loss range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average pure tone hearing threshold level, as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000, and 4,000 Hertz , or cycles per second, divided by four.  This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa.  38 C.F.R. § 4.85(a), (d). 

Table VI, "Numeric Designation of Hearing Impairment Based on Pure tone Threshold Average and Speech Discrimination," is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the pure tone threshold average (vertical columns).  The Roman numeral designation is located at the point where the percentage of speech discrimination and pure tone threshold average intersect.  38 C.F.R. § 4.85(b).  

Table VII, "Percentage Evaluations for Hearing Impairment," is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear.  The horizontal rows represent the ear having the better hearing, while the vertical columns represent the ear having the poorer hearing.  The percentage evaluation is located at the point where the row and column intersect. 38 C.F.R. § 4.85(e).  In addition, 38 C.F.R. § 4.86 applies to exceptional patterns of hearing impairment.  Under its provisions, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman Numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  Each ear will be evaluated separately. When the pure tone threshold is 30 decibels or less at 1000 Hertz , and 70 decibels or more at 2000 Hertz , the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral.  That numeral will then be elevated to the next higher numeral.  38 C.F.R. § 4.86.  

The June 2010 audiological evaluation revealed an average right ear pure tone decibel loss of 36.25 with speech recognition of 96 percent.  This corresponds to a numeric designation of Level I hearing in the right ear.  38 C.F.R. § 4.87, Table VI.  The Veteran had a left ear average pure tone decibel loss of 73.75 with speech recognition of 88 percent.  These findings are consistent with Level III hearing in the left ear.  These combined numeric designations result in a noncompensable rating under Diagnostic Code 6100.  38 C.F.R. § 4.85, Table VII. 

As shown above, the VA audiometric examination does not support a higher rating for the Veteran's bilateral hearing loss disability.  The Board notes that the Veteran's assertions that his hearing has deteriorated are credible.  In determining the actual degree of disability, however, the examination findings are more probative of the degree of impairment.  Moreover, as noted above, the Court has noted that the assignment of disability ratings for hearing impairment is derived at by a mechanical application of the numeric designations assigned after audiometric evaluations are rendered.  Lendenmann, supra.  In this case, the numeric designations produce no more than a 0 percent disability evaluation.  38 C.F.R. Part 4 Diagnostic Code 6100.

Furthermore, the Board notes that the appellant does not have an exceptional pattern of hearing as defined by 38 C.F.R. § 4.86 given that the results of audiology testing do not show puretone thresholds at all four of the specific frequencies of 55 decibels or more.  The results also fail to show that the pure tone threshold were 30 decibels or less at 1,000 Hertz , and 70 decibels or more at 2,000 Hertz.  Accordingly, the noncompensable rating assigned accurately reflects the degree of the appellant's service-connected hearing impairment.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, § 4.85, Diagnostic Code 6100.

Based on the foregoing, a compensable rating for bilateral hearing loss must be denied.  Although the Veteran asserts that his hearing loss is worse than evaluated, the medical evidence prepared by a skilled neutral professional is more probative. 
With regard to functional impairment, including the Veteran's reports of hearing loss and his use of hearing aids, his speech discrimination abilities were specifically measured by VA audiological examinations and this functional impairment has thus been taken into account as part of the currently assigned evaluation.  Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007).  Specifically, such criteria contemplate the difficulty the Veteran had hearing in all situations.

The claim is denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

Tinnitus 

Service connection for tinnitus was granted in a July 2010 rating decision.  The RO assigned a 10 percent disability evaluation under 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260, effective March 4, 2010.  The Veteran appeals the assignment of the 10 percent rating.  While the Veteran has expressed that he is satisfied with his rating, he contends that his tinnitus has caused secondary conditions.  To the extent that the Veteran claims he has secondary conditions caused by his tinnitus, as noted in the introduction he is advised to submit a claim to the RO for secondary service connection on this basis.  With regard to the matter on appeal, the Veteran has been assigned a 10 percent rating for tinnitus.  This is the maximum schedular rating available for tinnitus.  38 C.F.R. §4.87, Diagnostic Code 6260.  As the Veteran has expressed satisfaction with the rating and there is no legal basis upon which to award an increased schedular evaluation for tinnitus, the appeal must be denied.  Sabonis v. Brown, 6 Vet. App. 426 (1994).  




ALL RATING CLAIMS 

The Board finds that the Veteran has presented competent and credible testimony regarding the nature and extent of his disabilities to include his reports hearing loss and pain.  The Board, however, has afforded greater probative value to the VA examinations than the Veteran's reports of symptomatology.  The examinations were conducted by medical professionals with the expertise to comment and opine on the matters at issue.  The examiners reviewed the records, which included the Veteran's contentions, and conducted a complete physical examination.  The medical findings of record are also well reasoned and supported by the historical record. 

The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board has found no section that provides a basis upon which to assign a higher disability rating for his disabilities.  Accordingly, the claims are denied.

The discussion above also reflects that the symptoms of the Veteran's disabilities are contemplated by the applicable rating criteria.  The effects of his disability, including hearing loss and pain, have been fully considered and are contemplated in the rating schedule.  Thus, consideration of whether his disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).

Finally, under Johnson v. McDonald, 762 F.3d 1362 (Fed.Cir. 2014), a Veteran may be awarded an extrascheduler rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  In this case, however, even after applying the doctrine of reasonable doubt, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extrascheduler consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.  


ORDER

New and material evidence has been received; the application to reopen the claim for entitlement to service connection for right maxillary sinusitis (claimed as a breathing condition) is granted to this extent only.  

Entitlement to an evaluation higher than 10 percent for residual scar laceration to right forehead is denied.  

Entitlement to an initial compensable rating for bilateral hearing loss is denied.  

Entitlement to an initial evaluation higher than 10 percent for tinnitus is denied.  


REMAND

The Veteran appeals the denial of an initial evaluation higher than 10 percent for traumatic brain injury (also claimed as skull injury facial fractures and headaches).  The Board notes that in relation to his claim the Veteran was last examined in July 2010.  During his November 2015 hearing, the Veteran indicated that his traumatic brain injury has increased in severity since his last examination.  He also stated that he had a CAT scan of his head about six month prior.  

VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate.  VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  The Board finds that a VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service connected disability.  To ensure that the record reflects the current severity of his disability, a contemporaneous examination is warranted.  On remand, ongoing VA and private treatment records should also be obtained.

The Board also finds that further development is needed to address the claims for entitlement to service connection for a dental disability, lumbar spine disability, cervical spine disability, a breathing condition to include right maxillary sinusitis and an acquired psychiatric disorder to include major depressive disorder.  To that end, the evidence shows that the Veteran was involved in a car accident during service in April 1973.  During his hearing, he reported that he first hurt his back in boot camp and then reinjured it in the car accident.  According to the Veteran, he hurt his neck in the same accident and that his neck, teeth and back have not been the same since then.  He also claims that the in service accident affected his breathing and that the facial fracture sustained in service has caused him continued breathing problems especially on the right side of his nose.  

With regard to his claim for service connection for a psychiatric disability, the Board notes that the Veteran argues that his depression was caused by the in service accident.  He claims that his depressive disorder developed from his traumatic brain injury and is not a part of his traumatic brain injury manifestations.  The Board also notes that in a September 2012 outpatient treatment record, the Veteran reported being sexually assaulted in service.  

The Veteran has presented testimony that his dental disability to include loss of teeth, a lumbar spine disability, cervical spine disability, a breathing condition to include right maxillary sinusitis and an acquired psychiatric disorder are related to service and/or his service connected traumatic brain injury.  The Veteran has not been afforded a VA examination(s) addressing these claims.  Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim.  In light of the above, the Board finds that a VA compensation examination(s) is needed for proper adjudication of the above claims.  

Accordingly, the case is REMANDED for the following action:

1. Obtain and associate with the record any outstanding VA outpatient treatment records related to the Veteran's traumatic brain injury.  Further, ask the Veteran to authorize VA to obtain any outstanding and relevant private treatment records pertaining to his disability.  All attempts to procure such records must be documented in the file.  If the AOJ cannot locate such records, the AOJ must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile.  The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims.  The claimant must then be given an opportunity to respond.

2. Send the Veteran a VCAA notice letter compliant with 38 C.F.R. § 3.304(f), as required for posttraumatic stress disorder (PTSD) claims based on in-service personal assault.  In particular, the notice must advise the Veteran that evidence from sources other than his service records or evidence of behavior changes may constitute credible supporting evidence of the in-service stressor.  Then allow the Veteran the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.

3. Based on the Veteran's response and the other evidence of record, prepare a preliminary report as to whether there is a corroborated in-service personal assault event.  This report must be included in the claims file.

4. Schedule the Veteran for a traumatic brain injury (also claimed as skull injury facial fractures and headaches) examination to determine the current severity of his disability.  The examiner is to be provided access to Virtual VA and the Veterans Benefits Management System (VBMS) electronic files.  The examiner must review VBMS and Virtual VA in conjunction with the examination.  All indicated tests should be performed and all findings should be reported in detail.  The examiner should describe all symptomatology associated with the traumatic brain injury, to include the current severity of any and all such as (1) cognitive; (2) behavioral/emotional; or (3) physical manifestations.  The TBI examination must be conducted following the protocol in VA's Disability Examination Worksheet for TBI examination.  

The examiner is asked to specifically address the degree to which the service-connected residuals of TBI, to include migraine headaches, is currently manifested by facets of cognitive impairment, including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness.  Any subjective symptoms or physical dysfunction with distinct diagnoses that may be evaluated under another diagnostic code should be separately evaluated under the appropriate diagnostic code. Any emotional/behavioral dysfunction should be evaluated under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder.  

With regard to headaches (which have been previously identified as a residual to the TBI that may be evaluated under another diagnostic code), the examiner should render specific findings as to the frequency and severity of the Veteran's headaches, specifically indicating whether the Veteran suffers characteristic prostrating attacks occurring an average of once every 2 months over the last several months, characteristic prostrating attacks occurring once a month over the last several months, or very frequent, completely prostrating attacks productive of severe economic inadaptability.  A complete, well-reasoned rationale must be provided for all opinions offered.  

5. Schedule the Veteran for a VA psychiatric examination to address the nature and etiology of any current psychiatric disorders to include major depressive disorder.  The examiner is to be provided access to Virtual VA and VBMS.  All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail.  If PTSD is diagnosed, the examiner must provide an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that such disorder, if present upon examination or shown earlier in the record but not currently present, is etiologically related to a corroborated in-service assault stressor.  See McClain v. Nicholson, 21 Vet App 319 (2007).  As to other psychiatric disorders, the examiner must address whether such diagnoses, if present upon examination or shown earlier in the record but not currently present, are separate and distinct from his traumatic brain injury manifestations.  If so, the examiner must provide an opinion as to whether it is at least as likely as not that such diagnosed disorders are etiologically related to service to include the alleged in-service assault and/or April 1973 accident.  The VA examiner must also opine whether any diagnosed disability was caused and/or aggravated by his service-connected traumatic brain injury.  If aggravation is found, the examiner must identify the baseline level of severity of the nonservice- connected disorder as established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  A complete, well-reasoned rationale must be provided for all opinions offered.  The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran.  

6.  Schedule the Veteran for a VA examination to address the nature and etiology of any current lumbar and/or cervical spine disabilities.  The examiner is to be provided access to Virtual VA and VBMS.  All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail.  As to each and every lumbar spine and/or cervical spine disorder diagnosed at the examination, or diagnosed in the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's disorder was caused by service, and/or caused and/or aggravated by his service-connected traumatic brain injury.  If aggravation is found, the examiner must identify the baseline level of severity of the nonservice- connected disorder as established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  A complete, well-reasoned rationale must be provided for all opinions offered.  The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran.  

7. Schedule the Veteran for a VA examination to address the nature and etiology of any breathing problems to include sinusitis.  The examiner must be provided access to the appellant's VBMS and Virtual VA file.  The examiner should render an opinion, based on the entire medical history, as to whether it is at least as likely as not (50 percent probability or more) that any diagnosed breathing problems to include sinusitis  are a result of an incident in service and/or caused and/or aggravated by his service-connected traumatic brain injury.  If aggravation is found, the examiner must identify the baseline level of severity of the nonservice- connected disorder as established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  A complete, well-reasoned rationale must be provided for all opinions offered.  The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran.  

8. Schedule the Veteran for a VA examination to address the nature and etiology of his dental disability to include loss of all teeth.  The examiner must be provided access to the appellant's VBMS and Virtual VA file.  The VA examiner should identify the Veteran's current dental disabilities and should specifically indicate whether the Veteran has loss of teeth due to trauma or disease.  The examiner should render an opinion, based on the entire medical history, as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's currently diagnosed dental disabilities are a result of an incident in service to include the April 1973 accident.  A complete, well-reasoned rationale must be provided for all opinions offered.  The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran.  

9. After the development requested has been completed, the AOJ should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND.  If any report is deficient in any manner, the AOJ must implement corrective procedures at once. 

10. Upon completion of the above requested development the AOJ must readjudicate the issues.  All applicable laws and regulations should be considered.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.



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).




______________________________________________
Cheryl L. Mason
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs