Citation Nr: 1641672 Decision Date: 10/27/16 Archive Date: 11/08/16 DOCKET NO. 14-28 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a neck injury at C4 and C5. 2. Entitlement to service connection for a low back injury. 3. Entitlement to service connection for traumatic brain injury (TBI). 4. Entitlement to service connection for status post left wrist trauma with fracture and residual strain. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the San Diego, California, Regional Office (RO) of the Department of Veterans Affairs (VA). This appeal was processed using the Virtual VA and Veterans Benefits Management System paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND Unfortunately, remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107 (a), 5103A (West 2014); 38 C.F.R. § 3.159 (c) (2015). The Veteran stated in the June 2014 Notice of Disagreement that he sustained a neck injury, TBI, and a low back injury in 1970 at the Naval Support Activity (NSA) in Millington, Tennessee, when he was hit in the head by a chair while working in the Mess Hall and landed on his back. The Veteran stated he sustained a concussion and placed on light duty in the Mess Hall after treatment. He stated he was treated with 14 stitches above the eye and due to amnesia, he does not recall getting hit. He stated he was originally treated at the Memphis, Tennessee, Naval Hospital. His amnesia was treated at the University of California, Irvine Hospital over a period of three to four years. Furthermore, the Veteran stated that the same doctor he was treated by at the hospital also treated him at the VA medical facility in Long Beach, California. The Veteran further stated he sustained a low back injury, left wrist trauma with fracture and residual strain, and TBI at the Naval Air Station in Corpus Christi, Texas. He maintains he was there to "help repair damages to the base from [H]urricane Celia. I was assigned to repairing the base housing units that were damaged... when I fell from the second story of a residential roof while installing sheathing on a roof." He stated that as a result of the fall, he has no recall of what he fell on or how he landed. He believes he may have been unconscious. He was treated at the base hospital and both hands were in casts. He has no recall of other testing or treatment conducted. He stated he wore the casts for three or four months and was placed on light duty at the cabinet shop. The Board notes that the in-service treatment records indicate the Veteran's wrists were treated during service. However, there is no indication the Veteran was treated for a low back injury, neck injury, or TBI. Based on the Veteran's lay statements and the lack of objective medical evidence, the Board finds that additional records must be obtained prior to adjudication. Specifically, the Board finds that in-service personnel records, medical records from Naval Hospital in Memphis; University of California, Irvine, Hospital; and all outstanding VA records are absent and therefore, must be obtained and associated with the record. Furthermore, the Board finds that the Veteran has not been afforded a VA examination for his claimed disabilities. Given the Veteran's lay statements of injuries during service, and his current symptomatology, the Veteran should be afforded a VA examination for further development in order to clarify the diagnosis and the etiology of each disability. As such, further development is necessary before a final determination is made. 38 C.F.R. § 3.159 (c)(4) (2015); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Accordingly, the case is REMANDED for the following action: 1. Records from treatment received at the Naval Hospital in Memphis, Tennessee, and records from the University of California, Irvine, Hospital, dated from February 1970 to December 1971, to include records of hospitalization at a field hospital, should be obtained. Any necessary identifying information should be requested from the Veteran. The Veteran should be contacted and asked to identify all medical treatment, VA and non-VA, received for his disabilities since service discharge. Copies of any identified records, not already obtained, should be obtained and added to the record. In addition, all personnel records should be obtained and associated with the record. If the requested records are not available, or the search for such records otherwise yields negative results, that fact should be clearly documented in the claims file, and the Veteran should be notified. 2. Once all outstanding records, if any, have been obtained and associated with the claims file, schedule the Veteran for a VA examination before an appropriate examiner regarding his claimed low back and neck injuries. The VA examiner is asked to determine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current low back and neck injuries manifested during, or as a result of, active military service or arthritis to a compensable degree within one year of service discharge. In addition, if the VA examiner determines that the low back disorder is at least as likely as not due to the Veteran's military service, the examiner is asked to opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's neck disorder is proximately due to or the result of his low back disorder. Aggravation (permanent increase in severity beyond normal progression) of the claimed neck disorder by the low back disorder should be addressed. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The claims file should be provided to the VA examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. Rationale for the opinions rendered should be provided. Additionally, the VA examiner should consider the Veteran's in-service treatment records and post-service treatment records. When formulating an opinion, the VA examiner must consider and address the Veteran's lay statements regarding his symptomatology, the service treatment records, and all relevant post-service treatment records. Specifically, the VA examiner is advised to consider the Veteran's reported history, specifically the asserted injuries during service and its impact on current symptoms. A complete rationale must be provided for all opinions offered. All opinions expressed by the VA examiner should be accompanied by a complete rationale, with citation to relevant medical findings. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 3. Once all outstanding records, if any, have been obtained and associated with the claims file, schedule the Veteran to undergo a VA TBI examination, by an appropriately qualified examiner with training and expertise in TBI, to assess the Veteran's asserted TBI. The VA examiner should determine whether it is at least as likely as not (50 percent or greater probability) that any current TBI is etiologically related to any incidents of the Veteran's period of active service. In all conclusions, it is essential that the examiner providing an opinion also give a complete explanation and discussion supporting that opinion. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The entire claims file along with copies of/access to any relevant virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated studies and tests for the Traumatic Brain Injury Examination, including relevant MRI, MRA, x-ray, neuropsychological, and neurobehavioral testing should be accomplished (with all results made available prior to the completion of the examination report), and all clinical findings should be reported in detail. The VA examiner must take a complete medical history of the Veteran, to include any head injuries and associated symptoms. The VA examiner must also conduct a complete physical examination with objective findings, including testing of the following: motor function; muscle tone; muscle reflex; sensory function; gait/spasticity/cerebellar signs; autonomic nervous system; cranial nerves; cognitive impairment (with screening with appropriate tests, and neuropsychological testing to confirm presence and extent of cognitive impairment); psychiatric manifestations; vision and hearing; skin; endocrine dysfunction; autonomic dysfunction; any other abnormal physical findings; and, assessment of cognitive impairment and other residuals of TBI not otherwise classified. Additionally, the VA examiner should consider the Veteran's in-service treatment records and post-service treatment records. When formulating an opinion, the examiner must consider and address the Veteran's lay statements regarding his symptomatology, the service treatment records, and all relevant post-service treatment records. Specifically, the VA examiner is advised to consider the Veteran's reported history, specifically the asserted head injuries during service and its impact on current symptoms. A complete rationale must be provided for all opinions offered. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Once all outstanding records, if any, have been obtained and associated with the claims file, schedule the Veteran for a VA examination before an appropriate examiner regarding his claimed status post left wrist trauma with fracture and residual strain. The VA examiner is asked to determine whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current left wrist disability manifested during, or as a result of, active military service or arthritis to a compensable degree within one year of service discharge. In addition, if the VA examiner determines that the left wrist disability is at least as likely as not due to the Veteran's military service, the examiner is asked to opine as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's left wrist disability is proximately due to or the result of his right wrist disability. Aggravation (permanent increase in severity beyond normal progression) of the claimed left wrist disability by the right wrist disability should be addressed. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The claims file should be provided to the examiner for review in conjunction with the examination and such should be acknowledged. All appropriate testing should be accomplished. Rationale for the opinions rendered should be provided. Additionally, the VA examiner should consider the Veteran's in-service treatment records and post-service treatment records. When formulating an opinion, the examiner must consider and address the Veteran's lay statements regarding his symptomatology, the service treatment records, and all relevant post-service treatment records. Specifically, the VA examiner is advised to consider the Veteran's reported history, specifically the asserted injuries during service and its impact on current symptoms. A complete rationale must be provided for all opinions offered. All opinions expressed by the examiner should be accompanied by a complete rationale, with citation to relevant medical findings. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be expressed without resort to speculation, discuss why such is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 5. Upon completion of the foregoing, review the examiners' reports to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any needed corrective action. 38 C.F.R. § 4.2. 6. After completion of the foregoing and undertaking any further development deemed warranted by the record, the Veteran's claims should be readjudicated based on the entirety of the evidence. If any claim remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate review, if in order. 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). _________________________________________________ Michael J. Skaltsounis Acting 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).