Citation Nr: 1802483 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 09-21 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for residuals of a head injury. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 2004 to July 2006, to include service in Iraq. His discharge was upgraded to honorable in June 2007. The Veteran was awarded the Combat Infantryman Badge (CIB), among other decorations. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans' Law Judge (VLJ) in April 2015. A transcript of that hearing is of record. In April 2017, the Board denied the Veteran's claim for service connection for residuals of a head injury and remanded his claims for entitlement to service connection for right shoulder and right knee disabilities. The Veteran appealed the Board's denial of his head injury claim to the United States Court of Appeals for Veterans Claims (Court). In an October 2017 Order, the Court, pursuant to a joint motion for remand (JMR) vacated the Board's denial of entitlement to service connection for residuals of a head injury. During the pendency of the April 2017 remand, the RO granted the Veteran's claims for entitlement for service connection for right shoulder and right knee disabilities in an August 2017 rating decision. As that decision constitutes a grant of those claims for service connection, those issues are no longer before the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Appellant if further action is required. REMAND The Board finds that further development is necessary prior to appellate review. In pertinent part, the JMR remand found that additional development was necessary to ensure there was substantial compliance with the prior remand directives. The JMR found that the National Personnel Records Center (NPRC) response for records was insufficient because it did not exclude the possibility of outstanding records regarding the Veteran's reported in-service head injury. The JMR noted that the records request only referenced the Veteran's concurrent shoulder injury, did not specifically request records pertaining to a head injury, and the negative response was inconclusive as it indicated that no records were found "or record not yet retired[.]" The JMR directed that further attempts must be made to obtain records relating to the Veteran's treatment at Kirkuk Air Base, to include requesting the records from other sources such as the applicable service department. In light of the JMR's findings, on remand any outstanding records regarding the Veteran's reported treatment at Kirkuk Air Base must be requested. There are also outstanding VA treatment records. An August 8, 2017 VA treatment record indicates that the Veteran had a follow up appointment scheduled on September 12, 2017. VA treatment records subsequent to August 8, 2017 have not been obtained. Accordingly, on remand all outstanding VA treatment records should be associated with the claims file. Finally, as the Board is remanding the claim for other matters, the Veteran should be afforded another opportunity to submit or authorize VA to obtain any outstanding treatment records from his non-VA provider, Dr. Westmoreland. Accordingly, the case is REMANDED for the following actions: 1. Request through official sources, to include the NPRC and the applicable service department, any hospital / clinical records from the Veteran's reported treatment at Kirkuk Air Base in December 2005 or January 2006. All efforts to obtain these records must be documented in the claims file. All requests should be documented in the claims file. If records cannot be obtained a formal finding of unavailability shall be made and the Veteran notified of such. 2. Obtain updated VA treatment records dating since August 8, 2017 and associate them with the claims file. If the records are not available, the claims file should be annotated to reflect such and the Veteran notified of such. 3. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for his disability on appeal, to include updated information to obtain records from Dr. Westmoreland. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such. 4. If, and only if, service treatment records or other competent and credible evidence is received corroborating that the Veteran was treated for a head injury secondary to a Humvee accident, a VA traumatic brain injury examination should be scheduled. The claims file should be reviewed in conjunction with the examination. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran has residuals of a TBI that are related to the Veteran's report that he hit his head on an ammunition can when his Humvee rolled several times after hitting an elk or donkey. Please explain why or why not. 5. After completing any additional development deemed necessary, the AOJ should readjudicate the issue on appeal. If the claim remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The Appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. A. BANFIELD 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 your appeal. 38 C.F.R. § 20.1100(b) (7) (2017).