Citation Nr: 1801815 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 17-25 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 2. Entitlement to service connection for a back disability. REPRESENTATION Veteran represented by: Kenneth Beskin, Attorney WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1959 to December 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, D.C. In October 2017, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, the Board finds that additional development is needed before the Veteran's claim on appeal can be decided. The Board notes that the Veteran was not afforded a VA examination in connection with his claims for service connection for a back injury and a head injury. The United States Court of Appeals for Veterans Claims (Court) has held that a medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the Veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. The third element could be satisfied by competent evidence showing post-service treatment for a condition or other possible association with military service. 38 C.F.R. § 3.159(c)(4). The threshold for establishing the third element is low, for there need only be evidence that "indicates" that there "may" be a nexus between the current disability and military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). During the October 2017 hearing, the Veteran provided credible lay evidence that he injured his back and head after falling over 20 feet from a training tower in basic training. In an October 2014 statement, the Veteran stated that he later lost consciousness as a result of the fall and that the fall affected, among other things, his back and head. At the hearing, the Veteran testified that he had continuing back complaints and sought treatment immediately following service in 1960. He also testified that his physicians discussed with him the connection between his audiological, head and neck, and neurology problems, including that he could misinterpret information because of the injury and that it contributed toward his hearing issues. The Veteran's testimony coupled with the medical evidence of record is sufficient to indicate that there may be a nexus between the Veteran's service and his current back and head conditions. Thus, the Board finds that the Veteran should be provided a VA examination to determine the nature and etiology of his back and head conditions. See McLendon, supra. 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. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. All reasonable attempts should be made to obtain any identified records. 2. After completion of directives#1, schedule the Veteran for a VA examination with an appropriate medical professional to ascertain the nature and etiology of any currently diagnosed residuals of head trauma. The claims file must be made available to the examiner for review. All indicated tests and studies must be performed, and a comprehensive history should be obtained. The examiner should provide an opinion as to: a. Does the Veteran suffer from any residuals of a head injury or TBI? b. Is it at least as likely as not (50 percent or greater probability) that any diagnosed head injury residuals are related to the Veteran's service? A complete rationale is requested for any opinion expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. 3. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate medical professional to ascertain the nature and etiology of any currently diagnosed back disabilities. The claims file must be made available to the examiner for review. All indicated tests and studies must be performed, and a comprehensive history should be obtained. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed back disability is related to the Veteran's service? Consideration should be given to the Veteran's history, and particularly to his statements regarding symptoms present on a continuous basis since service. A complete rationale is requested for any opinion expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. 4. After completing all actions set forth above and any further action needed as a consequence of the above development, readjudicate the claim on appeal. If the benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response. Then return the case to the Board for further appellate review. 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 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).