Citation Nr: 18148583 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 15-04 927 DATE: November 7, 2018 REMANDED Service connection for a left elbow condition is remanded. Service connection for a back condition is remanded. Service connection for traumatic brain injury (TBI) is remanded. Service connection for headaches is remanded. Service connection for a neck condition is remanded. Service connection for a left knee/leg condition is remanded. REASONS FOR REMAND The Veteran served in the Navy, Navy Reserve, and Coast Guard Reserve, although the precise dates of service are not apparent from the record. These issues are before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision. In an August 2015 written statement, the Veteran withdrew his request for a Board hearing. 1. Service connection for left elbow condition is remanded. 2. Service connection for a back condition is remanded. 3. Service connection for a TBI is remanded. 4. Service connection for headaches is remanded. These issues are remanded for the RO to determine the Veteran’s dates of active service, ACDUTRA, and INACDUTRA and to ensure that all available service personnel records (SPRs), service treatment records (STRs) and other government treatment records are associated with the claims file. Once the record is deemed complete, the RO should arrange VA examinations to evaluate the nature and cause of the Veteran’s claimed disabilities. 5. Service connection for a neck condition is remanded. 6. Service connection for a left lower extremity (knee and leg) condition is remanded. These two claims were denied in the same April 2013 rating decision as the first four claims. However, the RO did not issue an appropriate SOC, possibly because the Veteran’s June 2013 notice of disagreement (NOD) included a typed statement regarding in-service injuries and also four issues (left elbow, back, head injury, and headaches) handprinted in the bottom corner. However, the body of the NOD references neck and left knee/leg injuries, which indicates disagreement with the rating decision’s denial of these two issues. Accordingly, a remand is necessary for the RO to issue an SOC for service connection for neck and left lower extremity (re-characterized as such from separate left knee/leg claims) conditions. 38 C.F.R. §§ 19.26(a), 20.201; see Manlicon v. West, 12 Vet. App. 238 (1999). If the Veteran wishes to withdraw any issue on appeal, he may do so in writing with the RO. The matters are REMANDED for the following action: The Board recognizes that the detailed procedural directions and medical questions require significant work by the RO and the medical examiners. The Board regrets the need to remand the matter to the RO, however, the Board is unable to adjudicate the Veteran’s case until it has the requested information. Therefore, the Board must ask the RO and medical examiners to ensure compliance with these directives (that is, ensuring that the Veteran’s service is correctly categorized, that all STRs are obtained, and that full and thoroughly explained answers are the medical questions) to avoid additional delays in adjudication. 1. Issue an SOC for the Veteran’s service connection claims for neck and left knee/leg disabilities. These issues should not be certified to the Board unless the Veteran submits a timely substantive appeal. 2. Obtain all updated records of VA and adequately identified private treatment that the Veteran has received for the disabilities on appeal. 3. Certify the nature of the Veteran’s Navy, Navy Reserve, and Coast Guard reserve service (aside from confirmed line of duty injury on March 18, 2009). For each period, state whether it was active duty, ACDUTRA, or INACDUTRA. This information must include a determination as to the Veteran’s duty status in May 1998 when the Veteran reported a head injury and loss of consciousness injury while in Yorktown, Virginia en route to Fort Dix, New Jersey and in June 1998 when the Veteran reported ringing in his ears related to explosions at Camp Pendleton, California. 4. Obtain all available SPRs, STRs and government treatment records that are not already associated with the claims file. These records should specifically include: a) All Navy SPRs and STRs b) All Naval Reserve SPRs and STRs c) All Coast Guard Reserve STRs [The Board notes that the claims file contains an October 2012 formal finding that Coast Guard records are unavailable, even though some Coast Guard STRs are in the claims file (uploaded July 2, 2012) and that Coast Guard STRs are listed as evidence on the November 2014 SOC.] On remand, the RO should review the record, attempt to obtain any additional records, and, if necessary, issue a formal finding describing the unavailability of any records. d) Treatment from the Norfolk, VA Naval Hospital and the Fort Dix, NJ sick bay/hospital, as referenced in the Veteran’s April 2011 written statement describing a May 1998 head injury, loss of consciousness, and treatment at the Naval Hospital for a laceration. (As noted in the Veteran’s September 2018 appellate brief, the record does not indicate that VA has attempted to obtain these records). The Board notes that the May 2012 notification letter appeared to deny the Veteran’s left elbow and back claims only because STRs were not available. As noted in the Veteran’s appellate brief, however, federal case law permits service connection to be granted in certain circumstances without medical documentation. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (finding where a Veteran is competent and credible, “the lack of contemporaneous medical evidence should not be an absolute bar to the veteran’s ability to prove his claim of entitlement to disability benefits based on that competent lay evidence”). Moreover, the Board notes that the unavailability of STRs (which may be the case here) triggers a heightened duty for VA to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). Therefore, if any records are unavailable, the Veteran should be properly notified, AND the Veteran’s lay reports and other available evidence must be afforded heightened discussion and evaluation. 5. Then schedule the Veteran for an examination with an appropriate examiner to evaluate the nature and cause of the Veteran’s back and left elbow disabilities. [The Board draws the examiner and RO’s attention to the Veteran’s June 2013 NOD and September 2018 appellate brief where the Veteran and his representative outlined pertinent evidence, that will hopefully provide helpful information to the RO and the examiner.] The examiner should answer the following questions based on (1) a review of the claims file and (2) interview and examination of the Veteran. e) Identify any back or left elbow disabilities. Any needed diagnostic testing should be performed. f) Please state whether the Veteran has back and/or left elbow pain with functional impairment that is not attributable to any diagnosed disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (Veterans Court held that pain, even without at diagnosis, does count as a disability for VA compensation purposes if the pain causes functional impairment). g) Is it at least as likely as not (a 50 percent or better probability) that any diagnosed back or left elbow disability (or pain with functional impairment) was incurred in or is otherwise related to the Veteran’s service, to include INACDUTRA, ACDUTRA, or active service? The Veteran’s April 2011 written statements relating his current symptoms to the two in-service falls MUST be discussed. 6. Then arrange for a VA examination with a physician Board certified in physiatry, neurology, or neurosurgery to determine whether the Veteran has current TBI residuals and/or a headache disability related to service (to include INACDUTRA, ACDUTRA, or active service). The Board draws the examiner and RO’s attention to the following evidence, that will hopefully provide helpful information to the RO and examination physician: **The Veteran’s April 2011 written statement describing June 1998 explosions at Camp Pendleton, California associated with ringing in the ears and other symptoms. **The Veteran’s April 2011 written statement describing a head injury and loss of consciousness after falling four feet while evacuating a bus in May 1997 in Yorktown, Virginia. **The Veteran’s April 2011 written statement describing a March 2009 incident during Coast Guard service in Philadelphia where he fell over a dumpster, injuring his head and left side of the body and possibly associated with headaches, pain, dizziness, and trouble sleeping. Treatment records from Thomas Jefferson hospital were uploaded March 19, 2013 to the claims file and show the Veteran’s report of falling on his left elbow and shoulder. Elbow x-rays were negative for fracture. **March 2011 private treatment records showing the Veteran’s report of headaches and listing migraine headaches as a diagnosis. Examination instructions: The examiner should answer the following questions based on (1) a review of the claims file, (2) interview and examination of the Veteran, and (3) any necessary testing h) Does the Veteran have, or at any time during the appeal period (April 2010 to present) has he had, a diagnosis of TBI or TBI residuals? Please discuss any in-service head injuries reported by the Veteran to include the three incidents described above. Please identify (by diagnosis) each TBI residual found/shown by the record. i) Specifically, is it at least as likely as not (a 50% or greater probability) that any TBI residual began in (or is otherwise related to) the Veteran’s service, to include INACDUTRA, ACDUTRA, or active service? j) Does the Veteran have a diagnosed headache disability (in addition to any TBI residual noted above)? Please elicit and report a detailed description of the Veteran’s report of headache symptom onset and progression. k) Is it at least as like as not (a 50 percent or greater probability), that any diagnosed headache disability (to include migraines as noted in the March 2011 private treatment records) was incurred/had its onset in or is otherwise related to the Veteran’s service, to include INACDUTRA, ACDUTRA, or active service? [CONTINUED ON NEXT PAGE] A detailed explanation (rationale) is requested for all opinions provided and is very much appreciated. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel