Citation Nr: 1643355 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 13-06 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial compensable evaluation for a scar on the inner lower lip. 2. Entitlement to service connection for a traumatic brain injury. 3. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Avery M. Schonland, Associate Counsel INTRODUCTION The Veteran had active service from December 1982 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2009, December 2011, and March 2012 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This appeal was processed using Virtual VA and the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Initially, the Board notes that the Veteran was most recently afforded a VA examination in December 2012 in connection with his claim for an increased evaluation for his scar on the inner lower lip. The examiner indicated that he did not see any visible scars and noted that the Veteran did not report any loss of function, bleeding, or pain. However, in his March 2013 substantive appeal, the Veteran stated that he has pain and numbness from the scar. Such a statement suggests that there may have been a change in the severity of the disability. Therefore, the Board finds that an additional VA examination is needed. Moreover, the VA treatment records in Virtual VA indicate that the Veteran was hospitalized for schizoaffective disorder in August 2016. However, the record presently before the Board contains only records for treatment through February 2013. The Court's recent holding in Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016), extends the VA's duty to assist under 38 C.F.R. § 3.159 (c)(3) to obtaining sufficiently identified VA medical records, regardless of their relevance. Therefore, there appear to be further outstanding VA treatment records that should be obtained on remand. In addition, the record reflects that the Veteran is homeless and changed his address in January 2014 and again in October 2015. He also missed VA examinations for his service connection claims for his back disorder and a traumatic brain injury in June 2013. While an April 2013 VA letter was sent to the address that the Veteran submitted as new in January 2014, it remains unclear whether the Veteran was subsequently notified of the date and location for of the scheduled examinations, and there is no published guidance establishing the presumption of regularity in such a situation. See Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). Thus, on remand, the Veteran should be given another opportunity to appear for VA examinations in connection with those claims. Accordingly, the case is REMANDED for the following action: 1. The AOJ should take appropriate steps to verify the Veteran's current mailing address. It is noted that the Veteran's address in the Veterans Benefits Administration database is different from the one listed in the Veterans Health Administration database. 2. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for a lumbar spine disorder, a traumatic brain injury, and an inner lip scar. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA treatment records, to include records dated from February 2013 to the present. 3. After completing the forgoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected inner lower lip scar. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the Virtual VA and VBMS claims files. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected inner lower lip scar under the rating criteria. In particular, the examiner should provide a description of the service-connected scar, including the size and location. He or she should indicate whether the scar is unstable or painful; deep or superficial; and linear or nonlinear. The examiner should also state whether the scar causes any functional loss. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 4. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any current traumatic brain injury or residuals thereof that may be present. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, statements, and the July 2011 VA examination. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has any current traumatic brain injury or residuals thereof that manifested in or are otherwise related to the Veteran's military service, including any injury or symptomatology therein. In rendering this opinion, the examiner should consider that the service treatment records reflect that the Veteran fractured his mandible in October 1984 and follow-up treatment through February 1985. The Veteran has contended he sustained a traumatic brain injury as a result of that in-service injury and has reported the loss of consciousness at that time. Since the in-service injury, he has reported having headaches, dizziness, difficulty sleeping, and memory impairment. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 5. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology of any lumbar spine disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and lay statements. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In this regard, the Veteran has described lower back pain since the October 1984 in-service injury to his jaw in his October 2011 claim. The examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a current lumbar spine disorder that manifested in or is otherwise related to the Veteran's military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 6. The AOJ should notify the Veteran that it is his responsibility to report for any scheduled examinations, to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for any scheduled examination, documentation which shows that notice scheduling the examination was sent to the last known address should be associated with the VBMS file. It should also be indicated whether any notice that was sent was returned as undeliverable. 7. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 8. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence received. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J.W. ZISSIMOS 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).