07-26 864 ( 2010 )

Citation Nr: 1045619
Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 07-26 864 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUE
Entitlement to service connection for head trauma with residual
migraines, chronic vision problems, and tinnitus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Morales, Associate Counsel
INTRODUCTION
The Veteran had active service from July 1978 to July 1981 and
from April 1982 to April 1984.
This appeal comes before the Board of Veterans' Appeals (Board)
on appeal from a July 2005 rating decision of the Department of
Veterans affairs (VA) Regional Office (RO) in St. Petersburg,
Florida. The appeal was remanded for additional development in
June 2009.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran has consistently reported that he was hit in the head
with the butt of a rifle during basic training in 1948 and was
dazed for about five minutes. He reported that it took two to
three weeks for him to feel normal again, and that he has
experienced headaches, vision problems, and ringing in his ears
since that time. He stated that he did not go to sick call
because his commanding officer had ordered his men not to "waste
time" in sick call. The Veteran can attest to factual matters of
which he had first-hand knowledge, such as being hit in the head
in service and experiencing problems thereafter. See Washington
v. Nicholson, 19 Vet. App. 362, 368 (2005). In such cases, the
Board is within its province to weigh that testimony and to make
a credibility determination as to whether the evidence supports a
finding of service incurrence and continuity of symptomatology
sufficient to establish service connection. See Barr v.
Nicholson, 21. Vet. App. 303 (2007). Here, the Board finds the
Veteran's reports of an in service head injury, and headaches,
vision problems, and ringing in his ears continuously since that
injury, are credible evidence in support of his claim.
The Veteran was afforded three separate VA examinations in an
attempt to determine the nature and etiology of the claimed head
trauma and residuals: an audiological examination, a visual
examination, and a neurological examination. The audiological and
visual examiners felt that this was beyond the area of expertise
and declined to offer an opinion. The neurological examiner
declined to offer an opinion on the tinnitus aspect. Based on the
lack of in service treatment for a head injury, the neurological
examiner found that migraines and any eye disorder were not
related to service. The neurological examiner failed to discuss
the Veteran's reports of an inservice head injury and continuous
symptoms thereafter. The Board observes that opinions, such as
that rendered by the above VA examiners, in which a physician is
unable to opine regarding any causal connection between a
Veteran's current complaints and his period of service lack
probative value. Sklar v. Brown, 5 Vet. App. 140 (1993).
Once VA has provided a VA examination, it is required to provide
an adequate one, regardless of whether it was legally obligated
to provide an examination in the first place. Barr, supra. If a
VA examination is inadequate, the Board must remand the case. A
medical examination report must contain not only clear
conclusions with supporting data, but also a reasoned medical
explanation connecting the two. See Nieves- Rodriguez v. Peake,
22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120,
124 (2007). The Board finds that the Veteran is entitled to a
neurological examination which discusses the fact that the
Veteran had provided credible evidence of an in service head
injury and of continuous symptoms ever since. See McLendon v.
Nicholson, 20 Vet. App. 79 (2006) (VA must provide a medical
examination when it is necessary to decide the claim).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited
handling is requested.)
1. The Veteran should be afforded a
neurological examination to determine the
etiology of the Veteran's visual problems
(diagnosed as retinal/visual migraines),
claimed tinnitus, migraines, and any other
residuals of the Veteran's head trauma in
service. The claims folder and a copy of this
remand should be made available to the
examiner for review prior to the examination.
The examiner should indicate whether or not
the claims folder was reviewed.
The examiner should be advised that the
Veteran's reports of an in service head
injury and headaches, vision problems, and
ringing in his ears continuously thereafter
should be treated as credible evidence that
these events and symptoms occurred. The
examiner should conduct a complete history
and physical, identifying all current
neurologic symptomatology of the head, to
include migraines, visual problems, and
tinnitus. For each condition identified, he
should provide an opinion as to whether they
are at least as likely as not (50 percent or
better probability) related to the head
injury in service, or otherwise to service.
In reaching a conclusion, the examiner should
discuss the Veteran's reported continuous
symptoms of headaches, vision problems, and
ringing in his ears. If a negative conclusion
is reached, the examiner should explain why
these symptoms are not related to the head
injury in service or otherwise related to
service.
2. Upon completion of all requested
development, review the Veteran's claim based
on the new evidence. Should the benefits
sought on appeal remain denied, the Veteran
and his representative should be provided
with a supplemental statement of the case. An
appropriate period of time should be allowed
for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. 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 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), 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)
(2010).