Citation Nr: 21008467 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 13-02 324A DATE: February 17, 2021 ORDER The request to reopen the claim of service connection for residuals of a head injury, to include headaches, is granted. The request to reopen the claim of service connection for a back disability is granted. REMANDED The request to reopen the claim of entitlement to service connection for hypertension is remanded. The request to reopen the claim of entitlement to hepatitis C is remanded. Entitlement to service connection for residuals of a head injury, to include headaches, is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for tuberculosis is remanded. FINDINGS OF FACT 1. In an August 2008 rating decision, the RO determined that new and material evidence had not been submitted to reopen claims of service connection for head injury/headaches and low back strain; the basis for the denials was that there was no evidence that headaches/head injury and low back strain were incurred in or caused by service; the Veteran was informed of the decision and did not appeal nor was new and material evidence received within a year of the decision. 2. The Veteran submitted lay statements in support of his claims indicating that he sought treatment for his back and headaches after he completed his active duty service; the RO scheduled the Veteran for VA headache and back examinations and obtained etiology opinions. This evidence is relevant and probative as it goes to the issue of whether the disabilities are related to service. CONCLUSIONS OF LAW 1. The August 2008 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2019). 2. Evidence received since the August 2008 rating decision is new and material and the claims for service connection for residuals of head injury, to include headaches, and low back disability are reopened. 38 U.S.C. §§ 5103A, 5107, 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to July 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision issued by a VA Regional Office (RO). The claims for headaches and head injury have been consolidated and recharacterized as they appear on the cover page. For the reasons outlined above, the request to reopen the claims for service connection for headaches/head injury and low back disability are reopened. REASONS FOR REMAND Evidence indicates that there may be outstanding relevant VA treatment records. The Veteran reported that he was treated at the VA Medical Center from 1977 to 2001 for the claimed conditions. The July 2020 Supplemental Statement of the Case (SSOC) indicatets records were reviewed from the North Texas HCS/Dallas VAMC dated from March 23, 1977, through January 30, 2006. Records from 1977 to 2006 have not been associated with the file. Moreover, the last VA outpatient treatment records associated with the file are dated in April 2011 yet the SSOC indicates that records were reviewed from the Asheville VAMC from February 2007 to May 2020 and the Salisbury VAMC from September 2014 to July 2020. Any VA treatment records are within VA’s constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. A Bureau of Prisons Match reveals the Veteran was incarcerated in June 2015. A request for records from the detention center was returned as undeliverable in November 2020; however, a follow-up attempt was not made to obtain these records and must be accomplished upon remand. It appears the Veteran is in receipt of Social Security Administration (SSA) disability benefits. Copies of the administrative decision and any underlying medical records have not been associated with the record. A remand is also required to allow VA to obtain them. In light of the missing records, and as it is essential that each disability be viewed in relations to its history, addendum opinions must be sought from the VA headache and back examiners. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from 1977 to 2006, to include records from the North Texas HCS and Dallas VAMC, and from April 2011 to the present, to include from the Asheville and Salisbury VAMCs. Document all requests for records and their responses. 2. Ask the Veteran to complete a VA Form 21-4142 for records from the correctional facility where he was incarcerated. Make two requests for the authorized records from the identified facility unless it is clear after the first request that a second request would be futile. 3. Contact the SSA and request the Veteran’s SSA records, including any administrative decision(s) on his application for disability benefits and all underlying medical records which are in the SSA’s possession. A copy of all request(s) sent to the SSA, and all replies, to include any records obtained from the SSA, must be included in the claims file. 4. Once the requested development above has been completed, obtain an addendum opinion from an appropriate clinician (with examination if deemed necessary by the opinion provider) regarding whether the Veteran’s low back disability at least as likely as not (50/50 probability) had its onset during active duty service or is otherwise related to an incident of his active duty service or manifested within the year following his discharge from service in July 1976. In rendering this opinion, the examiner must address service treatment records documenting complaints of back pain and strain in 1976. The examiner must also address the Veteran’s contentions that his back disability was the result of a fall off a two-and-a half-ton truck onto his back during service. All conclusions or opinions offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service treatment records, VA and private treatment records, the Veteran’s contentions, or other pertinent evidence in the record to support the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. 5. Once the requested development in paragraphs 1 through 3 has been completed, obtain an addendum opinion from an appropriate clinician (with examination if deemed necessary by the opinion provider) regarding the claimed head injury and headaches. The examiner must first indicate whether it is at least as likely as not (i.e., 50/50 probability) that the Veteran incurred a head injury during service and if so, whether there are any current residuals thereof, including headaches. If not, the examiner must opine whether it is at least as likely as not (i.e., 50/50 probability) that any currently diagnosed headache and/or migraine headache disorder had its onset during active duty service or is otherwise related to an incident of active duty service. In formulating this opinion, the examiner must discuss the service treatment records documenting complaints of and treatment for: a cut lip incurred during a boxing match and complaints of dizziness following the match in July 1976; complaints of headaches in March, May and June 1976; complaints of photosensitivity, sleepiness, and drowsiness in April and June 1976; and the scar to the right forehead noted on the June 1976 separation examination. The examiner must also address post-service treatment records, to include the June 1977 VA examination, which documents the Veteran as complaining of a “short duration headache that appears whenever he goes from a cold area to a hot area or vice versa” and “caused by bright light and the sun.” All conclusions or opinions offered must be accompanied by a complete medical rationale, citing to established medical principles and relevant medical evidence, such as examination findings, service records, VA and private treatment records, or other pertinent evidence in the record to support the conclusions reached. If an opinion cannot be reached without resorting to speculation, the examiner must fully explain why that is so. 6. If upon completion of the above actions, and after undertaking any additional evidentiary development deemed necessary, to include obtaining any VA examination(s), the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. K. L. Wallin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Childers, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.