Citation Nr: 0000901 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 96-33 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. The propriety of the initial 10 percent rating assigned for residuals of a head injury, including headaches and scars. 2. Entitlement to a total rating based upon individual unemployability (IU) due to service connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Peter C. Lenart, Associate Counsel INTRODUCTION The veteran served on active duty in the military from January 1971 to February 1973. In March 1996, the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania granted the veteran's claim for service connection for residuals of a head injury, and granted a noncompensable (0 percent) disability rating. At the same time, the RO denied other disability issues, including service connection for a back condition, a bilateral shoulder condition, hearing loss and headaches. In April 1996 the veteran submitted a Notice of Disagreement (NOD) that addressed all of these claims. In June 1996, the RO issued a Statement of the Case (SOC) pertaining to all of these issues, but that combined the head injury residuals and headaches into one claim. That same month, the RO issued a rating decision that acknowledged that its March 1996 rating decision was clearly and unmistakably erroneous for not granting the veteran service connection for residuals of head injuries with headaches. The RO noted that subjective complaints such as headaches, dizziness, and insomnia are recognized as symptoms of brain trauma, and will be rated as 10 percent disabling, but no higher. The effective date of the veteran's corrected 10 percent disability evaluation was set as the date of his claim in August 1995. In July 1996, the veteran perfected his appeal only as to his head injury and headache claim through the submission of VA Form 9, on which he requested a hearing before a local VA official (RO hearing). The veteran testified before a hearing officer at the RO on April 15, 1997. However, inasmuch as the veteran did not perfect a timely appeal with respect to the issues pertaining to back, bilateral shoulder, or hearing loss claims, those matters are not developed for appellate review and will not be addressed herein. In October 1998, the RO denied the veteran's claim for entitlement to individual unemployability; that issue was developed for appellate review, but will be deferred pending the action below. Since the veteran has disagreed with the initial rating assigned for his service-connected disorder, residuals of a head injury with headaches, the Board has recharachterized the issue as involving the propriety of initial rating assigned. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). REMAND Review of the service medical records reflects that the veteran sustained a laceration and contusion over the left skull, as a result of a bicycle/automobile accident during his military service. He had a brief loss of consciousness, the laceration was sutured, and he was hospitalized for 3 days in a private facility. (Records from that hospital have been obtained; however the copy is of such poor quality that it is virtually illegible.) The veteran then developed subjective complaints of headaches; neurological consultation was essentially negative; the impression was post-concussion syndrome. The claims folder contains no record of treatment or examination for symptoms of head injury until the mid-1990s. The veteran himself conceded that he received no medical treatment until 1995 when he fell due to dizziness, injuring his head again. The veteran was service connected for residuals of headaches in March 1996. As noted above, the RO corrected its initial noncompensable rating in June 1996 when it assigned a 10 percent disability rating for subjective complaints of brain trauma. The veteran has expressed disagreement with the 10 percent rating, arguing that he has a host of significantly disabling symptoms directly attributable to the head injury in service, including: blackouts, post concussion syndrome, eye pain and other eye problems, loss of hearing, difficulty with balance, dizziness, and severe headaches. Private medical evidence of record from Michael P. Duncombe, M.D., a neurologist, dated September 1995, reflects that the veteran presented a history of all the above symptoms dating back to military service, when he "fractured" his skull. It was Dr. Duncombe's opinion that some of his symptoms could be due to "trauma with damage to the 8th nerve structure." He assessed the veteran as having "significant disability," and noted that the veteran was unable to drive. Dr. Duncombe's statement raised the possibility that VA has not acknowledged the complete extent of disability attributable to the head injury in service. On the other hand, Dr. Duncombe's opinion was based on an inaccurate history of skull fracture, as provided by the veteran. For that reason, the Board finds it necessary to ensure that the record is fully developed so that it can be determined which disabilities are part and parcel of the service-connected disorder and which are not. In this regard, Dr. Duncombe indicates that the veteran reported seeking VA treatment for his headaches at a facility in New York in 1985. Dr. Duncombe repeats the veteran's assertion that this "was not a satisfactory encounter" and that the veteran "thinks they might have done a scan, but is not entirely sure of that." The RO does not appear to have obtained or considered these records in evaluating the veteran's claim, nor is there a statement from the VAMC in New York documenting that no such treatment records exist. Consequently, before the Board can address the issue on appeal, VA's duty to assist the veteran in developing his claim dictates that additional effort to obtain these medical records is required by the RO. See Gregory v. Brown, 8 Vet. App. 563, 570-71 (1996); Murinscak v. Derwinski, 2 Vet. App. 363, 372-73 (1992). In addition, the veteran's claim for individual unemployability must be remanded as well. That decision is dependent upon consideration of his service connected disabilities, and his disability evaluations. As the veteran's current rating is at least subject to modification by the RO upon consideration of the New York VA records, that development and review must be completed prior to the Board's consideration of the individual unemployability issue on appeal. Accordingly, this claim is hereby REMANDED to the RO for the following actions: 1. The RO should request and obtain all of the veteran's treatment records from VAMCs in New York, covering a span of time from February 1973 when he was discharged from service to the present. If those prove unobtainable, the RO should obtain a statement from the VAMCs documenting the unavailability or nonexistence of the veteran's treatment records. If the veteran can identify the specific VA facility he visited, the RO should only attempt to obtain treatment records from that particular location. 2. The veteran should be asked to provide up-to-date information about his employment status, including the extent and results of any job searches he has undertaken during the past 2 years. 3. The RO should attempt to secure a legible copy of the veteran's in-service hospitalization at Hilaleah Hospital, 651 East 25th Street, Hialeah, FL 33013 in August 1972. (It should be explained to the hospital that the previously provided copy is illegible.) 4. Inasmuch as Dr. Duncombe has been treating the veteran for a number of years, and presumably has conducted in- depth evaluation and testing, he should be requested to provide an opinion as to which residual symptoms should be attributed to the head injury sustained by the veteran in service. To this end, he should be provided a brief summary of the injury in service; such summary should include the extent of the injury, treatment rendered, testing performed and findings recorded. Any necessary authorization should be obtained from the veteran prior to undertaking this action. 5. The veteran should be afforded VA examination by a neurologist and any other appropriate specialist deemed necessary. The purpose of the examination is to determine, with some degree of certainty, which symptoms claimed by the veteran are residuals of the head injury sustained in service, and therefore part and parcel of the service connected disorder, and which are due to other causes. In order to do so, it is imperative that the examiner(s) be provided the opportunity to review the claims folder in detail, with special attention to the treatment afforded the veteran in service at the time of the injury in August 1972. A detailed history should be elicited from the veteran, and his symptoms should be recorded as well. Following review of the record, physical examination, and any testing deemed necessary, the examiner(s) should offer an opinion identifying which residuals (such as blackouts, headaches, dizziness, hearing loss etc.) are at least as likely as not to be due to the head injury in service. The manifestations and extent of disability associated with all such residuals should be described fully, so that an appropriate rating may be assigned. It would be helpful if the examiner(s) would provide reasons for the opinions advanced. 6. Upon completion of the above actions, and after undertaking and completing any additional development deemed warranted by the record, the RO should readjudicate the veteran's claim for service connection for residuals of head trauma and headaches, and entitlement to a total rating due to individual unemployability, in light of any additional evidence obtained. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 7. If either determination continues to be adverse to the veteran, both he and his representative must be furnished a supplemental statement of the case (SSOC) and given an opportunity to submit written or other argument in response thereto, before the case is returned to the Board for further appellate consideration. The purpose of this REMAND is to accomplish additional development and adjudication, and it is not the Board's intent to imply whether the benefits requested should be granted or denied. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. N. R. ROBIN Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).