Citation Nr: 1636083	
Decision Date: 09/15/16    Archive Date: 09/27/16

DOCKET NO.  15-05 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to service connection for a traumatic brain injury (TBI).

2.  Entitlement to an initial rating in excess of 10 percent for a left shoulder strain from August 27, 2011, to August 10, 2016, and a rating in excess of 20 percent thereafter.

3.  Entitlement to an initial rating in excess of 10 percent for a right hip strain since August 27, 2011.

4.  Entitlement to an initial compensable rating for a right ring finger fracture, PIP joint, since August 27, 2011.

5.  Entitlement to an initial compensable rating for a residual scar from Cesarean section, since August 27, 2011.

6.  Entitlement to service connection for rapid weight gain.

7.  Entitlement to service connection for a heart murmur.

8.  Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD) from August 27, 2011, to August 18, 2012, and a rating in excess of 50 percent thereafter.

9.  Entitlement to an initial rating in excess of 30 percent for migraine headaches since August 27, 2011.

10.  Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and K.S.


ATTORNEY FOR THE BOARD

J. E. Miller, Associate Counsel


INTRODUCTION

The Veteran served in the U.S. Army from October 2000 to March 2001 and from January 2002 to August 2011. She had service in Southwest Asia.

This matter came before the Board of Veterans' Appeals (Board) on appeal from January 2012, June 2013, and August 2013 decisions of the Roanoke, Virginia, and Hartford, Connecticut, Regional Offices (RO). In October 2014, the Veteran had a hearing before a Decision Review Officer (DRO) at the Hartford, Connecticut, RO. In April 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. Transcripts for both hearings are in the record.

In July 2013, the RO issued a statement of the case (SOC) addressing entitlement to service connection for a TBI. In July 2014, the Veteran returned a VA appeal election form indicating that she wanted to appeal her denial of service connection. The RO did not respond. In her April 2015 Board hearing, the Veteran and her representative indicated that they believed that service connection for a TBI was an issue on appeal. As the undersigned took testimony on that issue, the Board finds that the Veteran has been led to believe the issue is currently on appeal. As a substantive appeal is not jurisdictional, the Board will waive timely filing of a substantive appeal and will take jurisdiction of this issue. See Percy v. Shinseki, 23 Vet. App. 37, 44 (2009). The issue of entitlement to a TDIU was raised at the Veteran's April 2015 Board hearing. See Rice v. Shinseki, 22 Vet. App. 447 (2009).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014).

The issues of service connection for rapid weight gain and a heart murmur, increased ratings for a left shoulder strain, a right hip strain, a right ring finger fracture, PIP joint, a residual scar from Cesarean section, PTSD, and migraine headaches, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran suffered a TBI while in service.



CONCLUSION OF LAW

The criteria for service connection for a TBI have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and to Assist

VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA has issued several notices to the Veteran including an October 2011 notice which informed her of the evidence generally needed to support a claim for service connection for a TBI; what actions she needed to undertake; and how VA would assist her in developing her claim. The October 2011 notice was issued to the Veteran prior to the January 2012 rating decision from which the instant appeal arises.  

VA has secured or attempted to secure all relevant documentation to the extent possible. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded adequate VA examinations for compensation purposes. The examination reports are of record.

All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VA's duties to notify and to assist have been met.




II.  Service Connection

Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In December 2011, the Veteran was diagnosed with a TBI as a result of a blast wave from a rocket which caused her to fall during her deployment in Southwest Asia. The physician stated that, although she did not have loss of consciousness, she had post-concussive symptoms, including an inability to remember the details of the event. VA treatment records dated since December 2011 note the Veteran's diagnosed TBI and indicate treatment and care therefor.

In June 2013, the Veteran was afforded a VA examination for residuals of a TBI. The examiner stated that the Veteran has never had a TBI or residuals of a TBI. The examiner opined that the Veteran did not have loss of consciousness, alteration of consciousness, or post-traumatic amnesia as a result of the blast while deployed in Southwest Asia and, therefore, she did not sustain a TBI. As the examiner did not comment on the Veteran's December 2011 diagnosis of a TBI and the subsequent records discussing treatment for a TBI, the examiner's opinion is of no probative value. Despite his assertion that he reviewed the Veteran's claims file, it does not appear that he was familiar with her medical history.

The probative evidence in this case conveys that the Veteran sustained a TBI while deployed in Southwest Asia. Therefore, service connection is warranted and the claim is granted.


ORDER

Service connection for a TBI is granted.


REMAND

In August 2012, the Veteran submitted a VA Form 9, which the RO accepted as a notice of disagreement (NOD). On that form, the Veteran indicated that she wished to appeal all issues previously denied. An SOC addressing the issues of service connection for rapid weight gain and a heart murmur and increased ratings for a left shoulder strain, a right hip strain, a right ring finger fracture, PIP joint, and a residual scar from Cesarean section has not been issued. The United States Court of Appeals for Veterans' Claims (Court) has directed that where a veteran has submitted a timely NOD with an adverse decision and the AOJ has not subsequently issued an SOC addressing the issue, the Board should remand the issue to the AOJ for preparation of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999).

In a June 2016 statement, the Veteran wrote that her health has become much worse since her Board hearing was conducted. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, remand is necessary for new examinations to assess the current severity of the Veteran's PTSD and migraine headache disorder. 

As entitlement to a TDIU requires an accurate assessment of the impairment associated with all of the Veteran's service-connected disabilities, the Board finds that the issues of service connection for rapid weight gain and a heart murmur and increased ratings for a left shoulder strain, a right hip strain, a right ring finger fracture, PIP joint, a residual scar from Cesarean section, PTSD, and migraine headaches are inextricably intertwined with entitlement to a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

The case is REMANDED for the following action:

1. Issue an SOC to the Veteran and her accredited representative which addresses the issues of service connection for rapid weight gain and a heart murmur and increased ratings for a left shoulder strain, a right hip strain, a right ring finger fracture, PIP joint, and a residual scar from Cesarean section. The Veteran should be given the appropriate opportunity to respond to the SOC.

2.  Advise the Veteran that she may submit any additional medical and non-medical evidence relating to the severity of her service-connected disorders and their impact on her ability to secure or follow a substantially gainful occupation during any period since August 27, 2011, as a result of her service-connected disabilities that is not already in VA's possession. 

3.  Associate with the record any VA clinical documentation not already of record pertaining to the treatment of the Veteran's service-connected disorders.

4.  Schedule the Veteran for VA PTSD and migraine headache examinations to obtain opinions as to the current nature the disorders. All indicated tests and studies should be accomplished and the findings reported in detail. 

All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided.

5.  Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board.

6.  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.

The Veteran 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs