Citation Nr: 18151091 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 15-25 601 DATE: November 20, 2018 REMANDED Entitlement to service connection for a traumatic brain injury (TBI). Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities. REASONS FOR REMAND The Veteran had active duty service with the United States Army from October 1966 to August 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada (RO). The Veteran testified before the undersigned Veterans Law Judge in a July 2018 Travel Board hearing. A copy of the hearing transcript has been associated with the record. Entitlement to service connection for a TBI. The Veteran contends that he currently has a TBI related to active duty service, when he was struck and injured by a grenade explosion in March 1969. Service treatment records show the Veteran complained of migraines in April 1967 and November 1967. In January 1969, March 1969 and April 1969, the Veteran complained of pressure and severe headaches of increasing severity. An August 1969 treatment note references a March 1969 injury sustained by the Veteran in the small of his back, in which he reported having continued ocular pain and was taking medication for headaches since March. A November 2011 VA examination shows that the Veteran reported having been in a blast but did not remember having a TBI or losing consciousness after them. Upon review of the Veteran’s claims file and examination of the Veteran, the VA neurologist opined that the Veteran did not have diagnosed TBI. Within a July 2018 Travel Board hearing, the Veteran and his representative testified that while in service, the Veteran took full force of an enemy grenade that exploded just a few feet away from him. After a number of reunions with his infantry unit, he had learned that he had been unconscious frequently after the incident until he was medevacked 22 hours later. The Veteran testified that he had no memory of being loaded on the medivac helicopter the next day or the flight to the hospital. He additionally indicated that his first memory of the hospital was one to three days later when he found himself sitting on a table with a doctor speaking to him, realizing that he couldn’t feel his legs. After service separation, the Veteran tried to go back to college, in which he was an honor student prior to service, but he realized had to study late nights and weekends, working longer hours than other students, finding it harder to retain information than when he was younger. He indicated that his two-year business course took him four years to complete, and that he had to use flash cards in his post-service occupation. In July 2018, the Veteran provided excerpts of a novel written by a fellow soldier, which discussed the incident in which the Veteran was hit by a grenade while in combat in Vietnam. The soldier narrated that the Veteran was bloodied and went in and out of consciousness during the fighting. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such examination is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Board finds that the November 2011 VA examination shows that the Veteran does not remember having a TBI or being unconscious after his in-service blast injuries, however, within July 2018 Travel Board hearing testimony, the Veteran indicates that he had learned of being unconscious after his grenade blast injury during of reunions with his infantry unit. Importantly, a novel written by a fellow soldier reports that the Veteran was in and out of consciousness after the in-service grenade blast. Prior to rendering a decision on the appeal, the Board finds that a new VA examination is necessary to consider the recent lay evidence associated with the record after the November 2011 VA examination, and to determine whether a diagnosis of a TBI, if any, is etiologically related to the Veteran’s reported in-service injury. Entitlement to service connection for right and left hip disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In absence of proof a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To this extent, however, the term “disability” refers to the functional impairment of earning capacity, rather than the underlying cause of the impairment. Saunders v. Wilkie, No. 17-1466, 2018 U.S. App. LEXIS 8467, at *17 (Fed. Cir. Apr. 3, 2018); see also DORLAND’S ILLUSTRATED MEDICAL DICTIONARY at 526 (32nd ed. 2012) (defining disability as “an incapacity or lack of the ability to functional normally; it may be either physical or mental or both”). In Saunders, the Federal Circuit concluded that “pain is an impairment because it diminishes the body’s ability to function, and that pain need not be diagnosed as connected to a current underlying condition to function as an impairment.” Id. at *17-18; see also Id. at *27 (stating that “a physician’s failure to provide a diagnosis for the immediate cause of a veteran’s pain does not indicate that the pain cannot be a functional impairment that affects a veteran’s earning capacity.”). Ultimately, the Federal Circuit in Saunders held that, to establish the presence of a disability, a veteran will need to show that his or her pain reaches the level of functional impairment of earning capacity. Id. at *28. VA treatment records include physical therapy records from April 2014 that show the Veteran had bilateral hip pain with deficits in strength and motion limitations. On examination of the Veteran, bilateral hip flexion, abduction and extension were diminished as due to back pain. The Veterans Claims Assistance Act of 2000 requires that VA make reasonable efforts to obtain relevant records that the claimant has adequately identified and authorized the VA to obtain. 38 U.S.C. § 5103A (2012). In a case of records held by a Federal department or agency, VA shall continue their efforts to obtain these records unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. Id. Upon review of the record, the Board finds that the most recent medical treatment records associated with the record are from July 2015. As there is some issue as to whether the Veteran has currently diagnosed right hip and left hip disabilities, the Board finds it necessary for the AOJ to obtain and associate with the record any and all outstanding medical treatment records pertaining to his claims on appeal. Also pursuant to VA’s duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4)(i) (2017). The Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of any bilateral hip disability. Therefore, the Board finds that remand is necessary for a VA examination prior to rendering a decision on the appeal. The matters are REMANDED for the following action: 1. Obtain and associate with the record all outstanding VA treatment records after July 2015. All efforts to obtain the Veteran’s treatment records should be fully documented, and a negative response must be provided if the records are not available. 2. After the above development is completed, obtain a VA TBI examination by a qualified physician. The claims file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Upon review of the Veteran’s claims file, the examiner is requested to determine whether it is at least as likely as not that the Veteran has a diagnosis of TBI. If TBI is diagnosed, is it at least as likely as not (a 50 percent or greater probability) that diagnosed TBI is etiologically related to the March 1969 grenade blast injury. In rendering the above opinions, the Board directs the examiner to consider, but not limit review to the Veteran’s service treatment records, a July 2018 Travel Board hearing transcript and excerpts of a novel associated with the record in July 2018. The term “at least as likely as not” does not mean within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 3. After the above development is completed, obtain a VA orthopedic examination by a qualified physician. The claims file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Upon review of the Veteran’s claims file, the examiner is requested provide the following opinions: (a) Determine whether it is at least as likely as not that the Veteran has a diagnosis of a right hip and/or left hip disability. (b) If a right hip and/or left hip disability is diagnosed, is it at least as likely as not (a 50 percent or greater probability) that the diagnosed disability was (i) caused by or (b) aggravated by service-connected disabilities? (c) If a right hip and/or left hip disability is diagnosed, is it at least as likely as not (a 50 percent or greater probability) that the diagnosed disability is etiologically related active duty service? The term “aggravated” means any increase in severity that is not due to the natural progress of the disease. The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 4. After all development has been completed, the AOJ should review the claims again based on the additional evidence. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. R. Woodarek, Associate Counsel