Citation Nr: 18140867 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 13-02 938 DATE: REMANDED The claim of entitlement to service connection for residuals of head trauma is remanded. (The issue of entitlement to compensation under 38 U.S.C. 1151 for residual effects of a medication prescribed by medical staff from the Department of Veterans Affairs (VA) Medical Center in Fayetteville, Arkansas, is addressed in a separate Board decision.) REASONS FOR REMAND The Veteran had active duty service from May 1963 to April 1964. This appeal before Board of Veterans’ Appeals (Board) arose from a December 2013 rating decision in which a VA Regional Office (RO), inter alia, denied service connection for head trauma. The Veteran disagreed with the RO’s decision and this appeal ensued. In January 2018, the Veteran and his wife testified on the residuals of head trauma claim during a Board videoconference hearing before the undersigned Veterans Law Judge. (The Board notes that, as the Veteran previously testified during a 2014 hearing before another Veterans Law Judge on the section 1151 claim, that matter will be decided by the presiding judge during that hearing). The Board’s review of the claims file reveals that further agency of original jurisdiction (AOJ) action on the service connection claim on appeal is warranted. The Veteran’s essential assertion is that he suffered head trauma during service due to an assault where fellow service members shoved his head into a wall locker. His service treatment records (STRs) document an apparent incident where he was knocked out while wrestling, possibly being rendered unconscious for no more than 10 to 15 seconds. During his January 2018 Board hearing, the Veteran asserted that the documented in-service head trauma was not the result of wrestling but the result of the reported assault. The Veteran further asserted during his Board hearing that following the in-service assault, he was sent to the U.S. Naval Hospital in Millington, Tennessee, for treatment. As records of treatment rendered at the Millington Naval Hospital have not been associated with the claims file, the Veteran and his representative requested that VA attempt to obtain these records. Hence, remand is warranted for the AOJ to undertake appropriate action to obtain and associate with the claims file any outstanding STRs, to specifically include any available treatment records from Millington Naval Hospital, following the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. The AOJ should also ask the appellant to submit copies of any STRs in her possession. Additionally, the Veteran was afforded a VA neurology/traumatic brain injury (TBI) examination in November 2013. The Veteran, however, asserted that the examination was not properly conducted as the examiner did not do any actual testing, but rather, simply interviewed him. The Board’s own review of the examination report reveals that the examiner equivocally indicated that the Veteran was diagnosed with a TBI in November 2013, but then indicated that there were no residuals present attributable to TBI. Moreover, consistent with the Veteran’s contentions, the examiner indicated in the report that no neuropsychological testing was performed. The examiner did not otherwise indicate why such testing was not conducted. Based on the inadequacies in the November 2013 VA examination report, the Board finds that remand is also required to afford the Veteran a new VA TBI examination. Prior to arranging for a new VA examination, to ensure that all due process requirements are met, and the record is complete, the AOJ should undertake appropriate action to obtain and associate with the claims file all other outstanding, pertinent records. As for VA records, the claims file currently includes VA outpatient treatment report dated through February 2018. Accordingly, the AOJ should obtain all outstanding records of VA evaluation and/or treatment of the Veteran dated since February 2018. The AOJ should also give the Veteran another opportunity to provide additional information and/or evidence pertinent to the service connection claim on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide on a claim before the expiration of the one-year notice period). In the letter to the Veteran, the AOJ should specifically request that the Veteran furnish copies of any STRs in his possession, to specifically include any records of treatment at Millington Naval Hospital (referenced above). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal. This matter is hereby REMANDED for the following action: 1. Undertake appropriate action, to include contacting all appropriate sources of records, to obtain and associate with the claims file any outstanding STRs, to specifically include any records pertaining to the Veteran’s treatment at the U.S. Naval Hospital in Millington, Tennessee, following his reported (documented) in-service head trauma. Follow the procedures set forth in 38 C.F.R. § 3.159(c) for requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Obtain complete copies of all outstanding records of VA evaluation and/or treatment of the Veteran, dated since February 2018. Follow the procedures set forth in 38 C.F.R. § 3.159(c) regarding requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 3. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Specifically request that the Veteran provide a copy of any additional STRs in his possession, to specifically include records of treatment at the U.S. Naval Hospital in Millington, Tennessee. Additionally, request that he furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 4. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 5. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a new VA TBI examination by an appropriate medical professional. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated clinician, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies, to include neurological testing, should be accomplished (with all results made available to the requesting clinician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify and diagnose all head trauma/TBI residuals currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then for each such diagnosed residual disability, the examiner should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset during the Veteran’s active service, or was otherwise related to an in-service injury, disease, or event, to include the head trauma reported by the Veteran, and as documented in his STRs. In addressing the above, the examiner must consider and discuss all relevant medical and lay evidence, to include his assertions of in-service head trauma and his reported symptomatology. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the service connection claim on appeal, considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel