Citation Nr: 1809003 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 04-29 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a traumatic brain injury (TBI). 2. Entitlement to service connection for a right hip condition. 3. Entitlement to service connection for a left kidney condition, to include as due to an undiagnosed illness and as secondary to a service-connected disability. 4. Entitlement to an initial compensable disability rating for polymorphous light eruption (PMLE) for the period prior to February 26, 2013, and a disability rating in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. An, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1985 to October 1988, and from April 1989 to January 1996; he also served in the Marine Corps Reserves prior to his first period of active duty service. Initially, this case came before the Board on appeal from an October 2002 rating decision, which, in pertinent part, denied entitlement to service connection for a low back condition, a right hip condition, a left kidney condition, and PMLE. In July 2007, the Board remanded the case for further development. In an August 2008 decision, the Board granted entitlement to service connection for a low back condition and PMLE, and the Board denied entitlement to service connection for a right hip condition and a left kidney condition. In a September 2008 rating decision, the Appeals Management Center (AMC), in pertinent part, effectuated the Board's grant of service connection for PMLE and assigned a noncompensable rating, effective January 7, 2002. In November 2008, the Board received a Motion for Reconsideration of the August 2008 Board decision. In a July 2009 decision, the Board vacated the Board's August 2008 decision, but only to the extent that it had denied service connection for a right hip condition and a left kidney condition. Those issues were then remanded for further development. The July 2009 Board decision also determined that the Veteran's November 2008 Motion for Reconsideration contained a timely Notice of Disagreement as to the initial rating assigned for PMLE. Upon remand, the Board directed the RO/AMC to issue a Statement of the Case (SOC) addressing the claim for entitlement to an initial compensable rating for PMLE. The SOC was later issued in October 2011, and the Veteran thereafter perfected a timely appeal as to that issue. In an August 2013 rating decision, the RO increased the disability rating for PMLE from noncompensable to 10 percent disabling, effective February 26, 2013. As that award does not represent a total grant of the benefits sought on appeal, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In a July 2014 rating decision, the RO denied entitlement to service connection for a TBI. In October 2014, the Board remanded the issues of entitlement to service connection for a right hip condition and a left kidney condition and entitlement to an increased rating for PMLE for a requested Travel Board hearing at the RO. In November 2014, the Veteran filed a timely notice of disagreement with the denial of entitlement to service connection for a TBI; a statement of the case was issued in April 2015; and a substantive appeal was received in May 2015 with a request for a videoconference hearing. The Board remanded all four issues in July 2015, December 2015, October 2016, and again in May 2017. All of these remands were for the purpose of scheduling the Veteran for a videoconference hearing before a Veterans Law Judge. Finally, in October 2017, the Veteran testified at a Board hearing via videoconference before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is associated with the record. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action on his part is required. REMAND Upon review of the evidence, the Board finds that additional evidentiary development is necessary before the Board can adjudicate the Veteran's claim of entitlement to service connection for TBI, right hip condition, left kidney condition, and increased rating claim for skin condition. While the Board regrets the further delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. The Veteran contends that while in Saudi Arabia during Desert Storm, he sustained injuries when a wall or part of a building fell on him. He asserts that his TBI, hip, and kidney conditions occurred or resulted from the event in service. See October 2017 Board Hearing Transcript, pp. 3-5. As an initial matter, the Board notes that the Veteran's service treatment records for his period of service in Saudi Arabia from February 1991 to May 1991 are not available. The record reflects that an attempt was made via email correspondence in October 2011 by the RO to obtain the Veteran's service treatment records from Records Management Center (RMC). However, there is no other documentation of additional searches or attempts made to obtain relevant records pertaining to the Veteran's period of service in Saudi Arabia. Further, there is no formal finding of unavailability of the records indicating that all efforts to obtain such records have been exhausted. In this regard, the Board notes that VA's duty to assist includes the obtaining of relevant records needed to substantiate a claim. 38 C.F.R. § 3.159(c). Clinical records from inpatient hospital treatment are kept separately from a veteran's service treatment records. See M21-1, VA Adjudication Procedures Manual, Part III, Subpart iii, Chapter 2, Section B, Topic 4. Thus, on remand, a request for service treatment records, including clinical inpatient records, pertaining to treatment of the Veteran in Saudi Arabia from February 1991 to May 1991 should be submitted. If the records cannot be located or do not exist, the Veteran must be notified and given an opportunity to provide them pursuant to 38 C.F.R. § 3.159(e). Additionally, the Board points out that in cases where the Veteran's service treatment records are unavailable through no fault of his own, there is a "heightened duty" to assist him in the development of the case. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). This heightened duty includes providing a medical examination if review of the evidence of record determines that such examination is necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). To that end, the Board notes that at his hearing, the Veteran challenged the adequacy of his February 2013 VA contract examination provided in conjunction with his TBI claim. The Veteran stated that the doctor who examined him was not certified or qualified to properly evaluate his TBI claim. See Hearing Transcript, p. 6. In fact, he stated that VA informed him that he would be provided another examination with an appropriate medical professional which was ultimately never scheduled. Id. at 8. As such, on remand, the Veteran should be afforded an opportunity to receive a new TBI examination. With respect to his service connection claim for right hip condition, the Veteran was afforded a VA contract examination in February 2013. The examiner found that the claimed right hip condition was less likely incurred in or caused by the claimed in-service injury. However, in the rationale, the examiner indicated that she could not "give the opinion without resort to mere speculation since scanty information available on medical records regarding the right hip condition." The examiner noted a present disability of right hip strain and indicated the date of diagnosis as 1991. The Board finds the 2013 examiner's opinion inadequate because it is based on the absence of service treatment records, post-service treatment and does not consider the Veteran's lay statements regarding continuity of symptomatology. A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history. Dalton v. Peake, 21 Vet. App. 23 (2007). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board finds that a remand for a new examination and medical opinion as to the etiology of the Veteran's current right hip condition is necessary. See 38 C.F.R. § 4.2 (2017). In rendering the new opinion, the examiner should consider the Veteran's statements regarding the occurrence of his hip condition, in addition to his statements regarding the continuity of symptomatology. Furthermore, for post-service treatment records, as the Veteran was incarcerated from January 1995 to February 2009, the Board notes that treatment records from South Carolina Department of Corrections are of record. A note that it was reviewed should be included in the opinion. With regard to his service connection claim for left kidney condition, the Veteran was also afforded a VA contract examination in February 2013 by the same examiner who evaluated him for his hip condition. The examiner indicated the claimed kidney condition was less likely related to service and explained that no rationale is provided "since there is no diagnosis" and that kidney function tests were within normal limits. The Board observes that the examiner supported her conclusion with findings from objective tests conducted for kidney disease. However, the Board notes that the record reflects a VA treatment record of March 2002 noting kidney function problems which the examiner failed to address. Notably, this was also the basis for the Veteran's November 2008 Motion for Reconsideration. Consequently, remand is necessary to reconcile the inconsistent medical notations and an adequate opinion obtained reflecting consideration of such treatment records. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the reasoning for the conclusion that contributes probative value to a medical opinion). Lastly, as for his increased rating claim for skin condition, based on the Veteran's October 2017 testimony, the Board finds that remand is necessary for a current VA examination. When a claimant asserts, or the evidence shows, that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran was last provided a VA examination in February 2013 for his skin condition. Give his contentions that his symptoms have since worsened, the Board finds that an additional VA examination is needed to ascertain the current severity and manifestations of the Veteran's service-connected skin condition. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain and associate with the claims file all outstanding service treatment records, including clinical inpatient records, pertaining to the Veteran's active service in Saudi Arabia. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After receipt of all additional records, schedule the Veteran for an appropriate VA examination with an appropriate medical professional to determine the nature and etiology of his claimed TBI. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. Following examination of the Veteran, the examiner is to provide an opinion as to whether the Veteran's TBI is at least as likely as not (a 50 percent or greater probability) that the claimed TBI had onset in service or is directly linked to the Veteran's time on active duty. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the Veteran's October 2017 hearing testimony setting forth a complete rationale for all findings and conclusions. 3. After receipt of all additional records, schedule the Veteran for an appropriate VA examination with an appropriate medical professional to determine the nature and etiology of his claimed right hip condition and left kidney condition. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner in conjunction with the examination along with any other information the medical professional deems pertinent. A note that it was reviewed should be included in the opinion. Following examination of the Veteran, the examiner is to provide an opinion addressing the following: a) Whether the Veteran has a current diagnosed disability of right hip condition and left kidney condition. b) For each such diagnosed condition, the examiner must provide an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the claimed condition had onset in service or is directly linked to the Veteran's time on active duty. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. The examination opinion must reflect consideration of the Veteran's October 2017 hearing testimony setting forth a complete rationale for all findings and conclusions. 4. After receipt of all additional records, schedule the Veteran for a VA examination to determine the nature and severity of his skin condition. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran's pertinent medical history and such review should be noted in the examination report. 5. Upon completion of the requested development and any other development deemed appropriate, the AOJ should readjudicated the claims. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the 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 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). _________________________________________________ KELLI A. KORDICH 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).