Citation Nr: 1617595 Decision Date: 05/02/16 Archive Date: 05/13/16 DOCKET NO. 13-03 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to an initial compensable rating for traumatic brain injury (TBI). 2. Entitlement to a separate initial rating in excess of 10 percent for tension headaches associated with TBI. 3. Entitlement to service connection for a disability manifested by memory loss, to include as due to service-connected TBI. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for a kidney disability. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from January 1989 to July 1993. These matters come before the Board of Veterans' Appeals (Board) from a December 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Honolulu, Hawaii. During the pendency of the appeal, the RO, in a June 2013 rating decision granted a separate 10 percent rating for the Veteran's headaches. (The Veteran's headaches had previously been considered as part of his TBI residuals and he had appealed the noncompensable rating.) In a February 2015 Remand, the Board stated that the headache rating issue was no longer on appeal based on the June 2013 rating decision. However, upon further review of the record, the Board finds that the Veteran has not expressed satisfaction with the 10 percent rating and that he has continued to consider that the issue is still on appeal. Thus, the Board finds that it is still on appeal. In December 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The record was held open for an additional 90 days to allow the Veteran to submit additional evidence, and the Veteran waived RO consideration of any such evidence. These matters were previously before the Board in February 2015 and were remanded for the Veteran to be scheduled for a Board hearing, which was subsequently done, as noted above. They have now returned to the Board for further appellate consideration. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND At the February 2015 Board hearing, the Veteran indicated that he had applied for Social Security Administration (SSA) Disability benefits but that a determination had not yet been made. VA should attempt to obtain SSA records, if any, as they may relate to all issues on appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) With regard to a back disability, the Veteran contends that while in service he went to sick call for his back. He also testified that he has had back problems since service. A February 1992 STR reflects that the Veteran reported complaints of coughing, a sore throat, nasal congestion, and a back ache for 24 hours. The diagnosis was a possible cold. The STRs are negative for a spine disability. There are no complaints in the STRs between February 1992 and the Veteran's separation in July 1993 with regard to the spine. A post service December 1999 LBJ Tropical Medical Center record reflects that the Veteran had a complaint of low back pain, especially on the right side and had been seen before for the same problem. The assessment was R/O calculi renal, which subsequent testing the same month confirmed. The clinical records do not reflect that the Veteran has a current spine disability. If and only if, additional records reflect that the Veteran has a current spine disability, and there is competent credible evidence that it may be due to service, the Veteran should be scheduled for a VA examination for an opinion as to whether it is as likely as not that a current spine disability is causally related to service. With regard to a kidney disability, the Veteran testified that he does not know if he had kidney stones in service. Post service, the clinical records reflect kidney (renal) stones in October and December 1999, January 2000, July 2002, and June 2005. This onset is more than five years after separation from service. If and only if, additional records reflect that the Veteran has a current kidney disability which may be due to service, the Veteran should be scheduled for a VA examination for an opinion as to whether it is as likely as not that a current kidney disability is causally related to service. Accordingly, the case is REMANDED for the following action: 1. Contact the SSA and obtain a copy of all agency records, if any, which granted or denied the Veteran benefits, including all medical records used to make a decision. 2. Attempt to obtain all LBJ Tropical Medical Center records for the Veteran from July 1993 to present. 3. Attempt to obtain all VA American Samoa CBOC records for the Veteran from July 1993 to present. 4. If and only if, additional records reflect that the Veteran has a current spine disability, and there is competent credible evidence that it may be due to service, the Veteran should be scheduled for a VA examination for an opinion as to whether it is as likely as not that a current spine disability is causally related to, or aggravated by, service. 5. If and only if, additional records reflect that the Veteran has a current kidney disability which may be due to service, the Veteran should be scheduled for a VA examination for an opinion as to whether it is as likely as not that a current kidney disability is causally related to, or aggravated by, service. 6. Thereafter, readjudicate the issues on appeal. If a benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. 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.C. GRAHAM 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).