Citation Nr: 1634261 Decision Date: 08/31/16 Archive Date: 09/06/16 DOCKET NO. 12-19 461 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected traumatic brain injury (TBI). 2. Entitlement to an increased rating for posttraumatic headaches, rated at 10 percent prior to October 9, 2013 and at 30 percent beginning on that date. 3. Entitlement to service connection for a right elbow disability characterized as right elbow calcification tendinopathy. 4. Entitlement to service connection for hallux valgus/degenerative joint disease of the right big toe, claimed as right leg big toe disability. 5. Entitlement to service connection for a right arm disability. 6. Entitlement to service connection for broken ribs. 7. Entitlement to service connection for diabetes mellitus. 8. Entitlement to service connection for a cardiac disability. 9. Entitlement to service connection for high blood pressure. 10. Entitlement to service connection for a right leg disability. 11. Entitlement to service connection for degenerative joint disease of the low back. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Redman, Counsel INTRODUCTION The Veteran served on active duty from June 1963 to May 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Although the Veteran perfected an appeal with respect to his claim of entitlement to service connection for a neck disability, service connection for cervical degenerative joint disease and degenerative disc disease was granted in a January 2015 rating decision. As this represents a total grant of benefits sought on appeal, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In a March 2010 statement the Veteran indicated that he has received medical treatment at the VA Medical Center (VAMC) in San Juan since 1989. A review of the record reflects that the Veteran's VA treatment records dating from October 2010 to December 2014 are in the claims file. Therefore, a remand is required in order to obtain the Veteran's VA treatment records from 1989 to December 2010 and from December 2014 to the present. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, in a statement signed by the Veteran in August 2011, the Veteran indicated that the medical records pertaining to his claims are with the San Juan Police Department Medical Office, the Commonwealth of Puerto Rico State Insurance Fund, Dr. Beltran and Dr. Maldonado. The record contains medical treatment records from Dr. Beltran and Commonwealth of Puerto Rico State Insurance Fund, and a report of contact dated on August 17, 2011 indicates that the Veteran did not want VA to try and obtain records from Dr. Maldonado because he was not sure they were available; but, there is no evidence that the other listed treatment from the San Juan Police Department Medical Office was sought or obtained. As such, on remand an attempt should be made to obtain these records. In the March 2016 Appellant's Brief, the Veteran, through his representative, argued that his service-connected TBI and posttraumatic headaches have increased in severity since the most recent VA examinations were conducted in October 2013. 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 Weggenmann v. Brown, 5 Vet. App. 281 (1993). Therefore, on remand, additional VA examinations should be scheduled in order to determine the current severity of these two service-connected disabilities. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain copies of the Veteran's VA treatment records dating from 1989 to December 2014 and from December 2014 to the present, and associate them with the claims file. 2. Contact the Veteran and request that he identify any pertinent private treatment he has received for his claimed disabilities on appeal, to specifically include the treatment from the San Juan Police Department Medical Office, as noted in the August 2011 statement. The Veteran should be specifically requested to provide authorization for VA to obtain any such treatment records. If any requested records cannot be obtained, the Veteran should be notified of such. 3. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected traumatic brain injury (TBI). The claims file must be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's service-connected TBI. 4. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected post traumatic headaches. The claims file must be made available to the examiner. All appropriate tests and studies should be conducted and clinical findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's service-connected headaches. In particular, the examiner must state whether there is any evidence of characteristic prostrating attacks, and the frequency thereof; and whether there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 5. After the development requested is completed, readjudicate the claims on appeal. If the benefits sought remain denied, furnish the Veteran a supplemental Statement of the Case and allow him a reasonable opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).