Citation Nr: 1807227 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 14-28760A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to an initial compensable evaluation for residual scar, status post suturing neck laceration. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and CW ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 1969 to April 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issues on appeal have been recharacterized in order to afford the Veteran the broadest scope of review. The Veteran presented testimony before the undersigned in October 2017. The transcript has been associated with the electronic record. The issue of service connection for a neck disability was raised during the October 2017 Board hearing. BVA Transcript at 21. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is needed before a final determination may be made on the issues on appeal. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. It appears that additional documents must be obtained and associated with the electronic record. The Veteran indicated in his October 2017 Board hearing that he sought, and continued to seek, treatment at the VA Medical Center (VAMC) and had a magnetic resonance imaging (MRI) the day prior to hearing. The last VA outpatient treatment records associated with the electronic record are dated in June 2014. The Board will remand to obtain these records. The duty to assist also includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran last underwent a VA examination to assess the severity of his scar in July 2012, over six years ago. Moreover, during his October 2017 Board hearing, the Veteran testified that his scar area covered more than just his neck as service-connected, but that it ran from his forehead to his neck. BVA Transcript at 16. VA must provide a new examination when the available evidence is too old to adequately evaluate the current state of the condition. See Olson v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). Therefore, as the Veteran was last afforded a VA examination in 2012 and clarification as to the area covered by the scar is needed, the Veteran should be provided another VA examination to ascertain the current severity of his service-connected scar. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). With regard to the issues of service connection, in light of the missing records, and as it is essential that each disability be viewed in relation to its history, new VA examinations are necessary. McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159 (c)(4). The examiner is asked to address the specific questions set forth in the numbered paragraphs below. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claims on appeal. 38 U.S.C. § 5103A (b) (2012). Finally, private chiropractic treatment notes and lay statements were added to the electronic record in October 2017 and after the July 2014 statement of the case was issued. The Veteran did not waive initial RO consideration of the newly submitted evidence. In light of the remand for additional development and so that RO may evaluate the new evidence and issue a supplemental statement of the case, the matter is remanded. 38 C.F.R. § 20.1304. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the electronic record any outstanding VA treatment records dated from June 2014 to the present, including all radiographic reports and MRI dated October 16, 2017. All efforts to obtain the records should be clearly documented in the file. If the records are unavailable, the RO should clearly note it in the record and provide a reason as to the unavailability. 2. After receipt of all additional treatment records, the Veteran must be afforded a VA examination to determine the severity of his service-connected scar disability. The electronic claim file must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. Examination findings pertinent to the Veteran's scar should be reported to allow for application of VA rating criteria for the skin, to include addressing the eight characteristics of disfigurement for purposes of evaluation under 38 C.F.R. § 4.118. In conducting the examination, the examiner must specifically describe the length/area covered by the scar and answer whether the scar involves the head and face, in addition to the service-connected neck laceration. The Board notes the Veteran's service treatment records show multiple lacerations to the head, face and neck in March 1970 and the Veteran has testified that his scar runs from his forehead down to his neck. 3. After receipt of all additional treatment records, schedule the Veteran for the appropriate VA examinations to determine the nature and etiology of the Veteran's claimed back disability and TBI. The electronic record, including a copy of this remand, must be made available to the examiner as part of the examination, and the examiner must indicate in his/her report whether the electronic record was reviewed. All indicated tests and studies should be completed. Back Disability: The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed back disability had its onset during active service or is any way related to his active duty service, to include the 1970 motor vehicle accident. TBI: The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any current residuals of a TBI, including any diagnosed psychiatric disability, had its clinical onset during active service or is in any way related to his active duty service, to include cerebral concussion sustained in March 1970. The Veteran's statements regarding the history of in-service injury, the objective medical from his military service, post service medical records, and any other pertinent clinical findings of record, must be considered and discussed. If the examiner cannot provide the requested opinions without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. The examination(s) report(s) must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 5. Once the above action has been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must readjudicate the issues in light of all evidence received since the July 2014 statement of the case. If upon completion of the above action, the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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).