Citation Nr: 21011966 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-55 726 DATE: March 3, 2021 ORDER Entitlement to a rating higher than 10 percent for tinnitus has been withdrawn and is dismissed. Entitlement to a rating higher than 0 percent for residuals of a laceration of the scalp has been withdrawn and is dismissed. REMANDED Entitlement to service connection for a right tympanic membrane disability is remanded. Entitlement to service connection for a left tympanic membrane disability is remanded. Entitlement to service connection for sinusitis is remanded. Entitlement to service connection for meningioma is remanded. Entitlement to service connection for a trigeminal nerve disability is remanded. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a rating higher than 0 percent for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. On July 6, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s representative that a withdrawal of the appeal for entitlement to a rating higher than 10 percent for tinnitus was requested. 2. On July 6, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s representative that a withdrawal of the appeal for entitlement to a rating higher than 0 percent for residuals of a laceration of the scalp was requested. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to a rating higher than 10 percent for tinnitus by the Veteran or representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for entitlement to a rating higher than 0 percent for residuals of a laceration of the scalp by the Veteran or representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal 1. Entitlement to a rating higher than 10 percent for tinnitus 2. Entitlement to a rating higher than 0 percent for residuals of a laceration of the scalp The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or the authorized representative. 38 C.F.R. § 19.55. At a July 2020 Board hearing, the Veteran, through the representative, withdrew the claims of entitlement to higher ratings for tinnitus and residuals of a laceration of the scalp. Thus, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal concerning entitlement to higher ratings for tinnitus and residuals of a laceration of the scalp, and they are dismissed. REASONS FOR REMAND 1. Entitlement to a rating higher than 0 percent for residuals of a traumatic brain injury (TBI) is remanded. 2. Entitlement to a rating higher than 50 percent for posttraumatic stress disorder (PTSD) is remanded. In the August 2014 AOJ decision on appeal, the AOJ noted that the Veteran had attended a VA examination for PTSD on July 14, 2014, and a VA examination for TBI on July 29, 2014, at the VA Medical Center in Brooklyn. Neither of those VA examination reports have been associated with the claims file. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Efforts should be made to obtain those outstanding VA examination reports. Additionally, the Veteran last underwent VA examination of the service-connected PTSD and TBI in July 2014. At the July 2020 Board hearing, the Veteran asserted that his symptoms had increased in severity since the most recent examination. Where the evidence of record does not indicate the current state of the Veteran’s disability, a more contemporaneous VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Because of the Veteran’s assertions of increased symptoms, remand is required to obtain updated treatment records and provide the Veteran a contemporary VA examination that evaluates the current symptomatology of the PTSD and TBI disabilities. 3. Entitlement to service connection for a left tympanic membrane disability is remanded. 4. Entitlement to service connection for a right tympanic membrane disability is remanded. In the August 2014 AOJ decision on appeal, the AOJ noted that the Veteran had attended a VA examination of Ear Conditions at the VA Medical Center in Brooklyn on July 25, 2014. That VA examination report has not been associated with the claims file. Efforts should be made to obtain that outstanding VA examination report. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). The record shows that the Veteran underwent left ear surgery at the New York Eye and Ear Infirmary in 2011. He underwent right ear surgery in February 2015, according to a February 2015 private treatment record and a March 2015 letter from N.S., M.D. However, the records of those surgeries have not been associated with the claims file. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Efforts should be made to obtain all outstanding referenced treatment records, as authorized by the Veteran. 5. Entitlement to service connection for sinusitis is remanded. 6. Entitlement to service connection for meningioma is remanded. In a November 2013 letter, A.K., M.D., stated that the Veteran had nasal congestion and post-nasal drip that was refractory to medical management. That doctor opined that the Veteran’s condition was more than likely related to direct contact and inhalation exposure to chemicals and toxins during his two tours in Vietnam. In a December 2013 letter, A.S., M.D., noted that the Veteran had an ongoing sinusitis condition and a meningioma. That doctor noted that the Veteran was exposed to acoustic trauma, explosives, and toxins during tours in the Vietnam war, and the doctor opined that the Veteran’s meningioma and sinusitis condition were more than likely related to combat duty in Vietnam. The Board appreciates the opinions of Dr. K. and Dr. S. However, both doctors merely gave bare statement that the Veteran’s conditions were more than likely related to hs experiences in Vietnam. No rationale was provided to support either opinion. Among the factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion. Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). As Dr. K. and Dr. S. provided no rationale for the opinions, the November 2013 and December 2013 letters do not adequately provide the necessary relationship between the claimed in-service disease or injury and the present disability in order to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). However, the letters from Dr. K. and Dr. S. provide some indication of a possible relationship between the Veteran’s claimed disorders and service. The Veteran has not been provided a VA examination in connection with the claims for service connection for sinusitis and a meningioma. Therefore, on remand, the Veteran should be scheduled for a VA examination in connection with the claims for service connection for sinusitis and meningioma. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 7. Entitlement to service connection for a trigeminal nerve disability is remanded. At the July 2020 hearing, the Veteran remarked that he is in receipt of Social Security Disability Benefits. No records from the Social Security Administration have been associated with the claims file. While Social Security Administration (SSA) records are not controlling for VA determinations, they may be pertinent to VA claims. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). When VA is put on notice of the existence of SSA records, VA must seek to obtain the records before proceeding with the appeal. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Lind v. Principi, 3 Vet. App. 493 (1992). The SSA records may be relevant to the current appeal. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board finds that the AOJ should obtain and associate with the claims file a copy of any SSA decision on the Veteran’s claim, and copies of all medical records underlying that determination, following the current procedures of 38 C.F.R. § 3.159(c) with respect to requesting records from Federal agencies. Also at the July 2020 hearing, the Veteran remarked that he has received past treatment from the New York Presbyterian Hospital in Manhattan and the Lennox Hill Hospital. The Veteran also stated that he received ongoing psychiatric treatment from Naples Community Hospital in Florida. Of record is a single April 2013 note from New York Presbyterian Hospital and a February 2016 radiology report from Lennox Hill Hospital. No records from the Naples Community Hospital are of record. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Efforts should be made to obtain all outstanding referenced treatment records, as authorized by the Veteran. 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. In September 2016, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, to the AOJ. On the form, he specified that the disabilities that prevented him from securing or following any substantially gainful occupation were PTSD, tinnitus, residuals of a TBI, laceration of the scalp, and a brain tumor. The AOJ responded by sending the Veteran a letter later in September 2016 acknowledging receipt of the VA Form 21-8940. The AOJ informed the Veteran that no further action would be taken the his claim as the disabilities that the Veteran was claiming were not service-connected. In reviewing the file, the Board notes that at the time of the Veteran’s September 2016 application, service connection was in effect for PTSD, tinnitus, residuals of a TBI, and a scalp laceration. Therefore, it is unclear why the AOJ has not yet considered the claim of entitlement to TDIU. Thus, the Board finds that, after completing the other actions noted below, the AOJ should adjudicate that matter in the first instance, to avoid any prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). The matters are REMANDED for the following action: 1. In response to the Veteran’s VA Form 21-8940 submitted in September 2016, send the Veteran and representative a letter requesting that the Veteran furnish any additional information or evidence pertinent to the claim for TDIU. The letter should specifically notify the Veteran of the criteria to establish entitlement to TDIU and supply a form to apply for TDIU. 2. Obtain and associate with claims file any outstanding VA treatment records pertinent to the Veteran’s claim, to specifically include the July 14, 2014, VA PTSD, July 25, 2014 ear Conditions, and July 29, 2014, VA TBI examination reports. 3. After obtaining any necessary releases, request any outstanding private treatment records, to specifically include treatment records from the New York Eye and Ear Infirmary, New York Presbyterian Hospital, Lennox Hill Hospital, and Naples Community Hospital, as referenced by the Veteran at the July 2020 hearing, and associate them with the record. All attempts to locate records must be documented in the claims file. 4. Request from the Social Security Administration complete copies of any disability decisions made concerning the Veteran and copies of the medical records that served as the basis for any decisions. Make reasonable efforts to obtain the records, including at least one follow-up request if no response is received. If the records are not available, a negative reply is required. 5. Then, schedule the Veteran for a VA examination to determine the etiology of any sinus disability, to include sinusitis. The examiner must review the record and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any sinus disability, to include sinusitis, had its onset in or is otherwise related to service, to include as a result of exposure to chemicals and toxins. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that a sinus disability was caused by the service-connected disabilities. The examiner should further opine as to whether it is at least as likely as not (50 percent probability or greater) that a sinus disability has been aggravated (increased in severity beyond the natural progress of the disorder) by service-connected disabilities. If it is determined that there is another likely etiology for the sinus disability, that should be stated. The examiner is requested to discuss the November 2013 letter from A.K., M.D., and the December 2013 letter from A.S., M.D.. A complete rationale for all opinions expressed should be clearly provided. The examiner must consider the Veteran’s statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. 6. Then, schedule the Veteran for a VA examination to determine the etiology of meningioma. The examiner must review the record and must note that review in the report. All appropriate tests or studies should be accomplished, and all clinical findings should be reported in detail. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that a meningioma had its onset in or is otherwise related to service, to include as a result of exposure to chemicals and toxins. The examiner should also opine as to whether it is at least as likely as not (50 percent probability or greater) that a meningioma was caused by the service-connected disabilities. The examiner should further opine as to whether it is at least as likely as not (50 percent probability or greater) that a meningioma has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities. If it is determined that there is another likely etiology for the sinus disability, that should be stated. The examiner is requested to discuss the December 2013 letter from A.S., M.D. A complete rationale for all opinions expressed should be clearly provided. The examiner must consider the Veteran’s statements and all lay statements regarding onset in-service and statements regarding the continuity of symptomatology. 7. Schedule the Veteran for a VA examination with one of the required specialists to determine the severity of the service-connected TBI disability. The examiner must review the claims file and should note that review in the report. The examiner should provide information regarding symptomatology in all facets used for rating TBI. The examiner should describe all symptoms related to the TBI and should discuss the effects on those symptoms on occupational function. To the extent possible, the examiner should identify which manifestations of the diagnosed residuals of a TBI are clearly separable from the diagnosed PTSD. 8. Then, schedule the Veteran for a VA examination with a psychiatrist who has not previously examined him in conjunction with the claim to determine the current nature and severity of PTSD. The examiner should review the claims folder and should note that review in the report. The examiner is requested to specifically review the completed report of the TBI examination requested above if the examiner is not also conducting the TBI examination. The rationale for all opinions should be explained. All necessary tests and studies, to include psychological testing, if appropriate, should be accomplished and all clinical findings reported in detail. The examiner should identify the existence and severity of all current manifestations of the service-connected PTSD. The examiner should opine as to the levels of occupational and social impairment caused by a psychiatric disability and should describe the symptoms, to include the frequency and severity of symptoms, resulting in those levels of impairment. To the extent possible, the examiner should identify which manifestations of the diagnosed PTSD are clearly separable from the diagnosed residuals of a TBI. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.