Citation Nr: 1815598 Decision Date: 03/14/18 Archive Date: 03/23/18 DOCKET NO. 14-31 587A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for traumatic brain injury (TBI) residuals. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a micro corneal scar of the left eye. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from June 1979 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board notes that the October 2012 rating decision and August 2014 statement of the case included the issues of service connection for right and left foot disabilities and a left ear condition, as well as the evaluation of residuals of a right hand injury; however, the Veteran's substantive appeal limited the issues to those listed above. The Veteran testified before the undersigned Veterans Law Judge during a videoconference hearing in August 2017. A transcript of the hearing has been associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran seeks service connection for the above listed disabilities on the basis that they were caused by his participation in boxing during service. While his service treatment records do not clearly show head injury, headache, knee injury, or eye injury, the Veteran has testified that he often received treatment through his coaches and trainers rather than from a military medical facility. Moreover, he declined a separation physical examination. During his 2017 hearing, the Veteran stated that blows he received while boxing during service rendered him unconscious approximately four times. He indicated that he suffered from headaches during service, and that they continued following service to the present. With respect to his claimed knee disability, he testified that boxing training included running, and that this caused knee pain. He also testified that he was struck in the eye with an opponent's boxing glove during service. On VA examination in September 2012, the examiner determined that the Veteran did not have and had never had a TBI or any residuals of a TBI. In this regard, he acknowledged that the Veteran boxed during service, but noted that there was no evidence in the service medical record regarding a head injury or residual headaches. He noted current headaches, but indicated that there was no evidence in the service medical records that he was knocked down or was suffering from headaches during service. He also noted the Veteran's report of being in a motor vehicle accident in 1995, with loss of consciousness. This examiner's conclusions do not account for the Veteran's reports of symptoms, including headaches, during and since service. It also does not account for the Veteran's reports of being knocked out during active duty. This statement is consistent with the Veteran being involved in intramural boxing during service. In that regard, it is deficient, and clarification must be sought. With respect to the Veteran's claimed knee disabilities, service treatment records include an undated entry reflecting left knee complaints, and a September 1980 entry indicating right knee complaints. As noted, the Veteran declined a separation examination. During his hearing before the undersigned, he testified that he experienced knee problems during service as the result of boxing training. On VA examination in September 2012, the diagnosis was bilateral knee strain. The examiner concluded that there was no evidence of a chronic condition, no evidence of a knee condition at discharge, or within one year following discharge. Again, the examiner's conclusions and rationale do not address the Veteran's assertion of symptoms during service and continuation of such symptoms following separation. The examiner should be asked for a clarifying opinion that accounts for the Veteran's report of symptoms during service and thereafter. Regarding the Veteran's claimed left eye disability, VA eye conditions examination in August 2012 resulted in a diagnosis of micro corneal scar of the left eye. The examiner did not provide an opinion regarding the etiology of this diagnosis. Accordingly, the case is REMANDED for the following action: 1. Return the record to the physician who examined the Veteran in September 2012, or a similarly qualified clinician if that physician is unavailable. If it is determined that an examination of the Veteran is required in order to address the questions posed, such should be scheduled. Following review of the claims file (and examination of the Veteran if deemed necessary), the clinician should indicate whether there are residuals of TBI. If so, the clinician should identify all such residuals and provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any current TBI residuals had their onset in service or are otherwise related to any disease or injury in service. The clinician should also provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's claimed and documented headaches had their onset in service or are otherwise related to any disease or injury in service. The clinician should also provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's right and left knee disabilities had their onset in service or are otherwise related to any disease or injury in service. A discussion of the complete medical rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. Review of the entire claims file is required; however, the clinician's attention is specifically directed to the Veteran's contentions regarding headache and knee symptoms during service. The clinician's attention is also directed to evidence indicating that the Veteran participated in boxing competition during service, to include at an all Army competition. The Veteran is presumed to be credible when discussing his boxing experiences including being knocked unconscious. If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Return the record to the physician who conducted the VA eye conditions examination in August 2012, or a similarly qualified clinician if that physician is unavailable. If it is determined that an examination of the Veteran is required in order to address the questions posed, such should be scheduled. Following review of the claims file (and examination of the Veteran if deemed necessary), the clinician should provide an opinion regarding whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the corneal scar diagnosed on examination had its onset during service or is otherwise related to any disease or injury during service. A discussion of the complete medical rationale for all opinions expressed should be included in the examination report, to include reference to pertinent evidence where appropriate. Review of the entire claims file is required; however, the clinician's attention is specifically directed to the Veteran's contentions regarding injury to his eye while boxing during service. The Veteran is presumed to be credible when discussing his boxing experiences during active duty. If the examiner is unable to offer any of the requested opinions, a rationale for the conclusion that an opinion cannot be provided without resort to speculation should be provided, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Upon completion of the action above, review the clinician's reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Then, readjudicate the claims remaining on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant and his representative have 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 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 (West 2012). _________________________________________________ G. A. WASIK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).