Citation Nr: 1807222 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-24 198A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for service-connected posttraumatic headaches. 2. Entitlement to a disability rating in excess of 10 percent for service-connected scar, left forehead. 3. Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI). 4. Entitlement to a compensable disability rating for service-connected scars, left shoulder, back, and left thigh. 5. Entitlement to a compensable disability rating for service-connected, status post fracture right thumb with scar. 6. Entitlement to service connection for nose trauma. 7. Entitlement to service connection for right arm condition. 8. Entitlement to service connection for seizures, status post craniotomy. REPRESENTATION The Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Galante, Associate Counsel INTRODUCTION 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 Veteran served on active duty from February 1945 to April 1946. These matters come to the Board of Veterans' Appeals (Board) on appeal from December 2011 and February 2012 rating decisions issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an October 2017 videoconference hearing. A transcript of that hearing has been associated with the Veteran's electronic claims file. In October 2017, the Veteran filed claims of entitlement to service connection for tinnitus and bilateral hearing loss related to acoustic trauma from atom bomb exposure; an acquired mental health condition secondary to TBI; residuals of fragments in the eye secondary to TBI; as well as a respiratory condition and presumptive residuals of radiation exposure to an atom bomb. These issues remain before the RO pending evidentiary development and initial adjudication. Thus, the Board does not have jurisdiction over these matters at this time. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required on his part. REMAND Although the Board sincerely regrets additional delay in the adjudication of these claims, a remand is necessary for further development to ensure that there is a complete record upon which to decide the Veteran's claims. VA examinations With respect to the Veteran's claims for higher ratings for his service-connected disabilities, the Board concludes that further assistance to the Veteran is required in order to comply with the duty to assist as mandated by 38 U.S.C. § 5103A . In an October 2014 appellate brief, the Veteran's representative implied that the Veteran's service-connected disabilities (on appeal for higher disability ratings) have worsened since the November 2011 and January 2012 VA examinations, and requested new VA examinations. A similar contention was raised at the October 2017 Board hearing, wherein the Veteran agreed to attend new VA examinations. See hearing transcript, p. 6. Consequently, the Board finds that more contemporaneous VA examinations are needed in order to assess the current severity of the Veteran's service-connected posttraumatic headaches, scars (left forehead, left shoulder, back, and left thigh), TBI, and right thumb disabilities. The headache and TBI examinations must be conducted by a board-certified physiatrist, neurologist, neurosurgeon, or psychiatrist. See VA's Adjudication Procedures Manual M21-1, III.iv.3.D.2.j. The fulfillment of the duty to assist requires a thorough and contemporaneous medical examination that considers prior medical examinations and treatment in order to conduct a complete evaluation of the Veteran's claim. 38 C.F.R. § 4.2 (2017). Where further evidence, or clarification of the evidence, is needed for proper appellate decision-making, a remand to the AOJ is required. 38 C.F.R. § 19.9(a) (2017); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); VAOPGCPREC 11-95 (1995). With regard to the Veteran's claims of entitlement to service connection for nose trauma, right arm condition, and seizures, status post craniotomy, the Board declines to request VA examinations at this time. Initially, the Board finds the November 2011 VA examiner's nexus opinion regarding the Veteran's seizures to be adequate for adjudication purposes. A new nexus opinion is only warranted if the June 1998 to December 2011 Gainesville VA Medical Center treatment records provide new information suggesting the Veteran's current seizure disorder may be related to his military service or a service-connected disability. Regarding his nose trauma and right arm service connection claims, the evidence does not establish the presence of current disabilities during the appeals period; consequently, VA examinations are not warranted. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006)(Competent evidence of a current disability is required to trigger a medical examination pursuant to VA's duty to assist). Again, VA examinations for these claims are only warranted if the June 1998 to December 2011 Gainesville VA Medical Center treatment records show the presence of a current nose trauma and right arm disability on or about March 2011, when the Veteran filed his service connection claims. See McClain v. Nicholson, 21 Vet App 319, 321 (2007) (A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending.); see also Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) ("[W]hen the record contains a recent diagnosis of disability prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.). VA treatment records VA is required to obtain "[r]ecords of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department." 38 U.S.C. § 5103A (c)(1)(B) (2017). In response to the March 2011 Veterans Claims Assistance Act of 2000 (VCAA) notice, the Veteran indicated that his only medical treatment is from the VA facilities in Tallahassee, Lake City, and Gainesville, Florida. Review of the electronic claims file shows that VA treatment records from the Tallahassee and Lake City VA facilities, dated from October 2010 to November 2017, were recently uploaded for evidentiary consideration. See November 2017 CAPRI records. The electronic claims file contains a February 2012 notation that the RO reviewed medical records from the Gainesville VA Medical Center, dated June 1998 through December 2011, in conjunction with the Veteran's claim for an increased rating for his service-connected right thumb disability. See February 2012 CAPRI records. The RO's review of these records is also noted in the February 2012 rating decision; however, these medical records have not been associated with the Veteran's electronic claims file for independent review by the Board upon appellate consideration. The "problem list" for these Gainesville VA records includes references to the Veteran's treatment for a seizure disorder and status post craniotomy for a brain tumor about 1980, relevant to the Veteran's claim of entitlement to service connection for seizures, post status craniotomy. The Board cannot discount the fact that these records may also contain relevant evidence in relation to the Veteran's other service connection claims (nose trauma and right arm). While these records are historical in nature, they likely contain evidence with a reasonable possibility of substantiating the elements of service connection. The law provides that VA medical records are within VA's constructive possession and must be obtained before the claims can be adjudicated. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the Board cannot adjudicate the Veteran's claims of entitlement to service connection at this juncture, but must instead remand the claims to the AOJ to obtain these missing, relevant VA treatment records from the Gainesville VA Medical Center. As the claims are being remanded, the Board will also request that the AOJ obtain any outstanding VA treatment records from the VA North Florida/Southern Georgia Veterans Health System, November 2017 to present, and associate these records with the Veteran's electronic claims file. 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. Obtain and associate with the Veteran's electronic claims file the VA treatment records from the Gainesville VA Medical Center, June 1998 to December 2011, as well as updated VA treatment records from the VA North Florida/Southern Georgia Veterans Health System, November 2017 to present. 2. Schedule the Veteran for updated VA examinations to assess the severity of his service-connected posttraumatic headaches, scars (left forehead, left shoulder, back, and left thigh), TBI, and right thumb. All indicated tests and studies should be conducted and clinical findings must be reported in detail. The TBI and posttraumatic headache examinations must be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon) in accordance with VA's Adjudication Procedures Manual M21-1, III.iv.3.D.2.j. If the examiner concludes any of the current cognitive difficulties are not due to the TBI, but to other issues, an opinion separating out such symptoms would be helpful. 3. ONLY IF the VA Gainesville VA Medical Center treatment records, June 1998 to December 2011, contain new information regarding the etiology of the Veteran's seizure disorder, should the Veteran be afforded a new VA examination for this disability. If so, the examiner completing the TBI and posttraumatic headache examinations is also requested to complete a new examination of the Veteran's seizure disability. The examiner is requested to review the electronic claims file before completing the examination and notation of such review must be included in the examination report. The examiner is requested to issue an opinion on the following questions: (i) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current seizure disability was incurred in or otherwise related to his military service, to include his April 1946 injuries? (ii) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current seizure disability is proximately due to, the result of, or aggravated by the Veteran's service connected TBI and/or posttraumatic headaches? The examiner is also requested to consider, address, and reconcile his medical opinion, with the nexus opinion issued by the November 2011 VA examiner. A complete rationale for all opinions and a discussion of the facts and medical principles involved must be provided. 4. ONLY IF the VA Gainesville VA Medical Center treatment records, June 1998 to December 2011, show the presence of a current nose trauma and/or right arm disability on or about March 2011 forward, should the Veteran be afforded a VA examination for these claims. The examiner is requested to review the electronic claims file before completing the examination and notation of such review must be included in the examination report. The examiner is requested to issue an opinion on the following questions: (i) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current nose trauma and/or right arm disability was incurred in or otherwise related to his military service, to include his April 1946 injuries? A complete rationale for all opinions and a discussion of the facts and medical principles involved must be provided. 5. After completing the above and any other necessary development, readjudicate all claims on appeal based on the totality of the evidence in the electronic claims file. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ MICHELLE L. KANE 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) (2017).