Citation Nr: 18160557
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-56 007
DATE:

1. Entitlement to service connection for a traumatic brain injury (TBI), to include residuals other than headaches.
2. Entitlement to an increased disability rating for a lower back strain, currently rated as 10 percent disabling.
3. Entitlement to an increased disability rating for a ventral hernia, status post repair, currently rated as noncompensable.
4. Entitlement to an initial disability rating in excess of 10 percent for a tender scar, status post hernia repair.
5. Entitlement to an initial compensable disability rating for a scar, status post hernia repair.
6. Entitlement to an effective date prior to June 19, 2015 for the grant of service connection for tender scar, status post hernia repair.	December 27, 2018
REMANDED
Entitlement to service connection for a TBI, to include residuals other than headaches, is remanded.
Entitlement to an increased disability rating for a lower back strain, currently rated as 10 percent disabling, is remanded.
Entitlement to an increased disability rating for a ventral hernia, status post repair, currently rated as noncompensable, is remanded.
Entitlement to an initial disability rating in excess of 10 percent for a tender scar, status post hernia repair, is remanded.
Entitlement to an initial compensable disability rating for a scar, status post hernia repair, is remanded.
Entitlement to an effective date prior to June 19, 2015 for the grant of service connection for tender scar, status post hernia repair, is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Air Force from August 2004 to August 2008.
These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.
The Board notes that an appeal to the Board is initiated by a NOD and completed by a substantive appeal after an SOC is furnished.  In essence, the following sequence is required: There must be a decision by the AOJ; the claimant must timely express disagreement with the decision; VA must respond by issuing an SOC; and, finally the claimant, after receiving the SOC, must complete the process by stating his argument in a timely-filed substantive appeal.  See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 and 20.203 (2017).  In the September 2015 rating decision, the RO granted service connection for a tender scar, status post hernia repair, and assigned a 10 percent disability rating.  The RO also granted service connection for a scar, status post hernia repair, and assigned a noncompensable rating.  In his timely, April 2016, Notice of Disagreement (NOD), the Veteran disagreed with the rating assigned to the tender scar.  In his addendum to his NOD, received on the same date as his NOD, the Veteran, disagreed with the rating assigned to the scar not noted as tender.  The Veteran further listed both the tender and non-tender scars on his VA Form 9, but the RO only certified the matter of an increased rating for the tender scar to the Board.  As such, the Board finds that the matter of entitlement to an initial compensable disability rating for a scar, status post hernia repair, is properly before the Board.  
The Board further notes that in a March 2013 rating decision, the RO denied service connection for migraine headaches, posttraumatic stress disorder (PTSD) and irritable bowel syndrome.  The Veteran submitted a timely NOD in April 2013 listing all three of these conditions.  In August 2013, the Veteran’s counsel submitted a letter advising that the Veteran wished to withdraw his April 2013 NOD as to all issues.  In October 2013, VA sent both the Veteran and his counsel a letter acknowledging this and advising that the appeal had been withdrawn as to all 3 issues.  That same month, and on numerous dates thereafter, VA received a letter from the Veteran’s counsel inquiring as to the Statement of the Case (SOC) in response to the April 2013 NOD.  The Board notes that withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies; withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case (SOC) is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed.  38 C.F.R. § 20.204 (c).  See, Hanson v Brown, 9 Vet. App. 29, 31 (1996) (holding that once a claim is withdrawn by a veteran, "it ceases to exist; it is no longer pending and it is not viable").  The board notes that neither the Veteran nor his counsel filed a new NOD within the specified time frame and the March 2013 rating decision became final.  The Board notes that the Veteran and/or his counsel are free to file a claim to reopen service connection for these matters if they deem it appropriate.
In the September 2015 rating decision, the RO denied service connection for a TBI, which the Veteran appealed in his April 2016 NOD.  In his April 2016 addendum to the NOD, the Veteran specifically asserted service connection for “residuals of a head injury in service, such as headaches.”  In a December 2016 letter, the Veteran’s counsel inquired as to the status of the SOC regarding the issue of “residuals of a head injury in service, such as headaches.”  The Board notes that in his June 2015 supplemental claim for compensation, the Veteran specified service connection for a TBI, and not residuals.  In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified the scope of a claim on appeal by holding that when a Veteran files a claim he is seeking service connection for his symptoms, regardless of how those symptoms are diagnosed or labeled.  In this case, the Veteran is seeking service connection for a TBI, to include residuals, such as headaches.  However, as discussed above, the Veteran was already denied service connection for migraine headaches, which the Veteran asserted through lay testimony were the direct result of an in service TBI (see July 2012 Buddy/Lay Statement), and that denial became final.  As such, the Board will recharacterize the Veteran’s claim for service connection for a TBI to service connection for a TBI, to include residuals other than headaches.  As will be discussed below, the Board will refer the matter of whether new and material evidence has been received to reopen a claim of service connection for headaches, to include as due to a TBI, to the RO.  
As discussed above, the Veteran submitted an addendum to his NOD in April 2016 asserting that he is seeking service connection for residuals of a TBI, such as headaches, now recharacterized as whether new and material evidence has been received to reopen service connection for headaches, to include as due to a TBI.  The Board notes that the RO has yet to adjudicate this issue.  As such, the Board does not have jurisdiction over the Veteran’s claim as to whether new and material evidence has been received to reopen service connection for headaches, to include as due to a TBI as it is not on appeal and is referred to the RO for appropriate action.  38 C.F.R. § 19.9 (b) 2017.
1. Entitlement to service connection for a TBI, to include residuals other than headaches, is remanded.
The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a TBI, to include residuals other than headaches, because no VA examiner has opined whether the Veteran suffered a TBI while in service or whether he suffers from residuals of said TBI .
2. Entitlement to an increased disability rating for a lower back strain, currently rated as 10 percent disabling is remanded.
While the record contains contemporaneous VA examinations regarding the Veteran’s service-connected lower back strain, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  The examinations do not contain passive range of motion measurements.
3. Entitlement to an increased disability rating for a ventral hernia, status post repair, currently rated as noncompensable is remanded.
When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes.  Barr v. Nicholson, 21 Vet. App. 303 (2007).
The Veteran was afforded a VA hernias examination in September 2015.  The Board notes the examiner indicated that he did not review the Veteran’s claims file nor did he comment on whether the Veteran presented with a weakened abdominal wall.  For these reasons, the Board finds that a remand for a new examination is required.
4. Entitlement to an initial disability rating in excess of 10 percent for a tender scar, status post hernia repair is remanded.
The Board notes that there is a gap in VA treatment records from August 2012 to December 2015 and further notes that such records could have a bearing on the matter of an increased disability rating for tender scar, status post hernia repair.  The Board also notes that the Veteran has not had the benefit of a VA scars examination.  As such, the Board finds that a remand is required to obtain any outstanding VA treatment records and then an examination to determine the current manifestations and severity of his tender scar, status post hernia repair.
5. Entitlement to an initial compensable disability rating for a scar, status post hernia repair is remanded.
The Board notes that the Veteran has not had the benefit of a VA scars examination.  As such, the Board finds that a remand is required for an examination to determine the current manifestations and severity of his scar, status post hernia repair.
6. Entitlement to an effective date prior to June 19, 2015 for the grant of service connection for tender scar, status post hernia repair is remanded.
Finally, because a decision on the remanded issue of entitlement to an initial disability rating in excess of 10 percent for a tender scar, status post hernia repair could significantly impact a decision on the issue of entitlement to an effective date prior to June 19, 2015 for the grant of service connection for tender scar, status post hernia repair, the issues are inextricably intertwined.  A remand of the claim is required. 
The matters are REMANDED for the following action:
1. Obtain the Veteran’s VA treatment records for the period from August 2012 to December 2015, and from February 2016 to the Present.
2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any TBI, to include residuals other than headaches.  The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including the asserted injury sustained in Japan due to being hit in the head with a small excavator bucket.
The examiner’s attention is invited to a July 2012 buddy statement from C. E. who stated that while in service the Veteran told him that he was struck in the head with a small excavator bucket and later developed headaches from this injury.
All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate).  The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.  
It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records.
3. After, and only after completion of step one above, schedule the Veteran for an examination of the current severity of his lower back strain.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to lower back strain alone and discuss the effect of the Veteran’s lower back strain on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
The examiner should discuss whether the Veteran has ankylosis of the lumbar spine and, if so, whether it is favorable or unfavorable.
The examiner should identify and discuss and neurological manifestations associated with the low back disability.  All neurological manifestations should be described in detail and the specific nerve affected should be specified, with the degree of disability caused by the service-connected disability stated.
All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate).
4. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected ventral hernia, status post repair.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to ventral hernia, status post repair alone and discuss the effect of the Veteran’s ventral hernia, status post repair on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate).
5. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected tender scar, status post hernia repair.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to tender scar, status post hernia repair alone and discuss the effect of the Veteran’s tender scar, status post hernia repair on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate).
6. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected non-tender scar, status post hernia repair.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to non-tender scar, status post hernia repair alone and discuss the effect of the Veteran’s non-tender scar, status post hernia repair on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).  
All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate).
7. 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 an effective date prior to June 19, 2015 for the grant of service connection for tender scar, status post hernia repair.  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 Pappas
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. P. Keeley, Associate Counsel

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