Citation Nr: 18123923
Decision Date: 08/07/18	Archive Date: 08/03/18

DOCKET NO. 15-00 677
DATE:	August 7, 2018
ORDER
New and material evidence having been received, the claim for entitlement to service connection for headaches is reopened.
New and material evidence having been received, the claim for entitlement to service connection for a low back disability is reopened.
New and material evidence having been received, the claim for entitlement to service connection for a neck disability is reopened.
New and material evidence having been received, the claim for entitlement to service connection for a right shoulder disability is reopened.
New and material evidence having been received, the claim for entitlement to service connection for a right knee disability is reopened.
REMANDED
Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded.
Entitlement to service connection for headaches is remanded.
Entitlement to service connection for a low back disability is remanded.
Entitlement to service connection for a neck disability is remanded.
Entitlement to service connection for a right shoulder disability is remanded.
Entitlement to service connection for a right knee disability is remanded.
Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1.  An unappealed June 2008 rating decision denied entitlement to service connection for headaches, a low back disability, a neck disability, a right shoulder disability, and a right knee disability based on the determination that no permanent residual or chronic disabilities subject to service connection were shown by the service treatment records or demonstrated by evidence following service.  
2.  The evidence received since June 2008, to include the private and VA treatment records, the December 2011 VA examination report, and the Veteran’s hearing testimony, when considered by itself or in connection with evidence previously assembled, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of service connection for headaches, a low back disability, a neck disability, a right shoulder disability, and a right knee disability.
CONCLUSIONS OF LAW
1.  The June 2008 rating decision, which denied the Veteran’s claims of entitlement to service connection for headaches, a low back disability, a neck disability, a right shoulder disability, and a right knee disability, is final.  38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017).
2.  The evidence received since the June 2008 rating decision is new and material, and the claims of entitlement to service connection for headaches, a low back disability, a neck disability, a right shoulder disability, and a right knee disability are reopened.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from June 1967 to March 1970.  
This matter is on appeal from an October 2012 rating decision. 
The Veteran testified before the undersigned Veterans Law Judge during a March 2018 hearing.
In March 2018, more than 90 days after certification of the appeal to the Board, the Veteran submitted a VA Form 21-22 appointing a private attorney, Brendan B. Garcia, as his new representative.  Given this attorney’s facilitation of the appeal at the March 2018 hearing, the Board has found good cause to accept the change in representation.  Accordingly, the Board honors the change in representation.  See 38 C.F.R. § 20.1304 (2017).
REASONS FOR REMAND
The Veteran contends that he has residuals of a TBI, headaches, a low back disability, a neck disability, a right shoulder disability, and a right knee disability as a result of an accident in service in 1968, in which he fell from a moving vehicle and landed on his right side and back.  Service treatment records documenting the incident noted several deep-skinning contusions on the right elbow, right hip, and right knee.  Some “skinning” marks with erythema were also noted on the chest and back.  It was noted that the Veteran was stuporous and difficult to arouse, with poor response to stimuli.  Heavy alcohol intake was also noted.  The Veteran was admitted for a possible head injury, but none was found.  X-ray imaging of the skull was grossly negative and neurological examination was also negative.  The Veteran was discharged to duty two days later with no profile change.  The service treatment records for the remainder of the Veteran’s service were unremarkable, and his 1970 separation examination was within normal limits.
The Board cannot make a fully-informed decision on the issues of entitlement to service connection for residuals of a TBI and headaches because no VA examiner has opined whether the Veteran has residuals of a TBI or headaches as a result of the accident in service in 1968, with consideration of the Veteran’s complete medical history.  In this regard, the December 2011 VA examiner opined that in the absence of better documentation, he could not connect the 1968 motor vehicle injury to any traumatic brain injury or present headaches without speculation.  However, in support of this opinion, the examiner pointed to the lack of treatment from 1993 to 2010.  However, following this opinion, the Veteran submitted private treatment records from 2002 and 2005 documenting reports of memory loss and occasional headaches beginning 30 years prior.
The Board cannot make a fully-informed decision on the issues of entitlement to service connection for a low back disability, a neck disability, a right shoulder disability, and a right knee disability because no VA examiner has opined whether these disabilities are a result of the accident in service in 1968, with consideration of the Veteran’s complete medical history and contentions.  In this regard, the May 2008 VA examiner opined that these disabilities were not related to the 1968 motor vehicle accident based on the loss of continuity of care or any documented visits to the physician for these conditions.  Moreover, the December 2011 VA examiner provided a negative nexus opinion, pointing to the normal separaton examination and a post-service motor vehicle accident in 1996, with complaints of cervical and lumbar pain.  However, following these opinions, the Veteran submitted additional private treatment records documenting complaints of pain resulting from the accident in service.  In particular, in an April 2009 treatment record, the Veteran’s treating physician found that there was a possibility that the initial accident the Veteran had in service “probably” could have triggered the whole event that contributed to his current severe degenerative joint disease of the back, neck, right shoulder, and right knee.  
Finally, because a decision on the remanded service connection issues could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined.  A remand of the claim for entitlement to TDIU is required.
While on remand, updated treatment records should be obtained.
The matters are REMANDED for the following action:
1.  Obtain the Veteran’s VA treatment records for the period from May 2013 to the present.
2.  Schedule the Veteran for an examination by an appropriate TBI clinician to determine the nature and etiology of any residuals of a TBI or headaches disability.  The examiner must opine whether any residuals of a TBI and/or headaches disability is at least as likely as not related to the March 1968 accident in service, in which the Veteran fell from a moving vehicle.
The examiner should consider: 1) the March 1968 service treatment record documenting injuries resulting from the Veteran’s fall from a vehicle, noting the Veteran was stuporous and difficult to arouse with poor response to stimuli due to heavy alcohol intake, and finding no head injury as a result of negative x-ray imaging of the skull and a normal neurological examination; 2) the normal separation examination in 1970; 3) the October 1992 private treatment record noting a medical history of headaches for the past three weeks; 4) the December 2002 private treatment record noting the Veteran’s reports of some memory loss and occasional headaches; 5) the March 2005 private treatment record noting the Veteran’s reports of memory loss beginning 30 years prior; 6) the October 2010 VA treatment record noting the Veteran’s reports of a history of chronic headaches for many years since an accident when he fell off a tailgate; 7) the November 2010 VA MRI showing several nonspecific small gliotic white matter foci with a diagnostic consideration of previous cerebral insult; 8) the December 2010 VA treatment record addendum noting that the MRI showing small white matter changes may be related to the injury in service; 9) the April 2011 VA neurology note noting that the MRI showing a few nonspecific white matter changes may be related to the injury in service in 1968 and an impression of chronic daily tension-type headaches since the injury; 10) the October 2011 VA treatment record noting the Veteran’s reports of frequent headaches since the motor vehicle accident in service; and 11) the August 2013 private treatment record noting that the Veteran’s increased headaches may be related to the degenerative disease in his neck.
3.  Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diagnosed degenerative disc and degenerative joint disease of the lumbosacral spine and/or cervical spine are at least as likely as not related to the March 1968 accident in service, in which the Veteran fell from a moving vehicle.
The examiner should consider: 1) the March 1968 service treatment record documenting injuries to the back resulting from the Veteran’s fall from a vehicle; 2) the normal separation examination in 1970; 3) the complaints of, and treatment for, back pain beginning in 1992; 4) the June 1994 lumbar spine MRI showing diffuse desiccation at all lumbar disc spaces and mild bulging; 5) the July 1994 cervical spine MRI showing mild desiccation of the C5-6 disc with no bulging or herniated discs; 6) the January 1997 cervical spine MRI showing soft disc herniation and central bulging of posterior disc margins; 7) the July 1998 private treatment record noting the Veteran’s complaints of pain in the neck and lower back since 1979 and reporting motor vehicle accidents in 1968 and 1996; 8) the August 1998 private treatment record noting the Veteran’s complaints of low back pain since 1979, and his reports of motor vehicle accidents in 1994 and 1996 with an inability to work since his last accident due to low back pain; 9) the September 1998 private treatment record noting a history of low back pain since an accident in service with an increase of that pain since a 1996 motor vehicle accident; 10) the February 2006 statement from Dr. J. M. noting a significant history of a motor vehicle accident with injuries to the lumbar and cervical spine; 11) the April 2009 private treatment record relating the Veteran’s severe degenerative joint disease to the initial accident in service; 12) the October 2010 VA spine x-ray suggesting an old upper dorsal vertebral body fracture; and 13) the March 2011 VA treatment record assessing neck and back pain due to degenerative disc disease and an old compression fracture per x-ray imaging; and 14) the May 2011 VA treatment record in which the Veteran reported a history of chronic low back pain since a 1968 fall in service.
4.  Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diagnosed right shoulder degenerative joint disease at least as likely as not related to the March 1968 accident in service, in which the Veteran fell from a moving vehicle.
The examiner should consider: 1) the March 1968 service treatment record documenting injuries to the right side resulting from the Veteran’s fall from a vehicle with several deep skinning contusions to the right elbow; 2) the normal separation examination in 1970; 3) the April 2009 private treatment record relating the Veteran’s severe degenerative joint disease to the initial accident in service; and 4) the March 2011 VA treatment record noting chronic bilateral shoulder pain related to a motor vehicle accident in service with an impression of bilateral shoulder pain related to injuries while in service.
5.  Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s diagnosed right knee degenerative chondropathy is at least as likely as not related to the March 1968 accident in service, in which the Veteran fell from a moving vehicle.
The examiner should consider: 1) the March 1968 service treatment record documenting injuries to the right side resulting from the Veteran’s fall from a vehicle with several deep-skinning contusions to the right knee; 2) the normal separation examination in 1970; 3) the November 1998 right knee MRI; 4) the May 2004 treatment record noting the Veteran’s reports of occasional right knee pain with a previous torn ligament; 5) the January 2008 right knee MRI showing early degenerative chondropathy in the medial compartment; and 6) the April 2009 private treatment record relating the Veteran’s severe degenerative joint disease to the initial accident in service.

6.  After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 
MICHAEL LANE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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