Citation Nr: 1342015 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 11-08 157 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for residuals of traumatic brain injury (TBI), claimed as headaches, blurred vision, memory loss, and concussion. REPRESENTATION Appellant represented by: Daniel C. Cummings, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1980 to June 1984, and from December 2003 to March 2005. This claim comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. During the appeal period for the November 2009 rating decision, the Veteran submitted evidence that was received in March 2010. The evidence included a Medical Determination Memorandum from the Department of the Army dated December 2, 2009 that included a finding that the Veteran's medical documents were reviewed under IAW AR 40-501, Chapter 3-30j (Traumatic Brain Injury) where his condition was found to be "medical unacceptable" and a referral for administrative action was included; a memorandum dated February 26, 2010 that discussed the Veteran's medical record versus his duty description; and a March 4, 2010 discharge letter from the United States Army Reserve effective March 20, 2010. The RO re-adjudicated the claim and issued a new rating decision in March 2010. The Veteran filed a notice of disagreement in June 2010, and a statement of the case was issued in March 2011. The Veteran appealed to the Board in March 2011. The Board notes that, while the Veteran previously was represented by the Military Order of the Purple Heart at the outset of this appeal, in June 2011 the Veteran granted a power-of-attorney in favor of attorney Daniel C. Cummings with regard to the claims on appeal. The Veteran's current attorney has submitted written argument on his behalf and represented him at his hearing. The Board recognizes the change in representation. In August 2011, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. The Veteran submitted new evidence to the Board in October 2011. He included a waiver of his right to have the RO consider the newly submitted evidence first, and also authorized the Board to consider the new evidence in the first instance. For the reasons expressed below, the matter on appeal is being remanded to the VA Regional Office. VA will notify the Veteran when further action, on his part, is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. 38 C.F.R. § 19.9 (2013). The Veteran contends that his current residuals of traumatic brain injury (TBI), claimed as headaches, blurred vision, memory loss, and concussion are a result of a TBI he suffered after exposure to blasts from improvised explosive devices and rocket-propelled grenades in October 2004 while deployed to Iraq during military service. A VA examination and opinion were provided for the Veteran's claim in October 2009, but the inadequacies evident in the examination and opinion require a remand. More specifically, the opinion and rationale were supported by an incomplete neurobehavioral inventory, citation of an MRI and an MRA of the brain without the test results or analysis of the results, potentially invalid neuropsychological test results, and a rationale itself that attributed the Veteran's claimed symptoms to prior head traumas and service-connected post traumatic stress disorder without analysis of whether these reportedly pre-existing injuries were aggravated are all reasons that require a remand for an adequate examination in this case. The Board notes that the opinion and rationale relies upon an incomplete neurobehavioral symptoms inventory that was administered December 22, 2008 by an unknown individual whose credentials and employer (VA or private) are not listed, or what purpose the individual used the inventory for. Further, the VA examination report states "Neurobehavioral Symptoms Inventory: This is not administered in full, but the following results are provided," and subsequently lists symptoms. As the incomplete neurobehavioral symptoms inventory was administered 11 months prior to the VA examination by an unidentified examiner for an unknown purpose, it was inappropriate for the VA examiner to rely on what was noted to be an incomplete neurobehavioral symptoms inventory to support the opinion and rationale for the VA examination. As such, remand is warranted. In addition, the VA examiner listed an MRI and MRA of the brain in the section of the report referring to relevant diagnostic testing. However, the VA examiner failed to include the actual results and interpretations of these diagnostic tests, or any analysis of the impact of the MRI and MRA results on the Veteran's claimed residuals of TBI. As such, the matter must be remanded to obtain current MRI and MRA testing, if necessary, and to consider the results in analyzing the Veteran's claim. Further, the VA examiner quotes a July 22, 2009 neuropsychological examination by Dr. Bhagwat, a neuropsychologist as pertinent medical evidence reviewed from the service treatment records in rendering the opinion. The VA examiner quotes Dr. Bhagwat's report and states: RBANS testing: not experiencing a significant number of cognitive deficits. No suggestion of memory deficit. Unlikely a mild TBI from 2004 would cause impairment. Not likely mild TBI would cause isolated visuospacial deficit. Performance on testing and symptomatology likely related to non-TBI factors such as untreated PTSD, poor sleep, and headaches. Dr. Bhagwat's report is included in the Veteran's claims file. Review of Dr. Bhagwat's report reveals that the psychometrist who did the RBANS (neuropsychological status screening measure) testing July 22, 2008 to assess the Veteran's current cognitive status revealed "some variability in effort" and "fluctuating effort/interest." The psychometrist "also reported that patient would sometimes quickly finish his responses, but when prompted or cajoled, would give more information. Thus, the results of testing may underestimate his actual current functioning." Dr. Bhagwat also noted that "his performance on a narrative memory measure was impaired based on strict scoring; however, when standard administration was broken and the patient was prompted for more information, his score jumped into the average range." As such, the record reflects that the psychometrist broke the standard administration procedure for the RBANS testing by cajoling and prompting the Veteran during the examination and obtained an average range score. The failure to follow standard administration procedure during the RBANS calls into question the validity of the results, as well as the adequacy of any rationale made in reliance on these results as pertinent evidence. As such, remand is warranted. The VA examiner also listed a December 22, 2008 polytrauma consult in psychology from the VA treatment records as pertinent evidence. The VA examiner included the impression from the polytrauma consult, which indicated that the Veteran "likely sustained at least a concussion in the fall from the roof, and other injuries could have produced concussion, especially the motor vehicle accident and ice-fall." The consult noted that "these earlier injuries would be expected to lower threshold for injury, such that later combat exposures may have had more impact. It is quite unclear if [patient] suffered concussion during combat - it is possible, but symptoms were quite modest and better explained by emotional reactions. He is describing cognitive symptoms that are most consistent with interference effects and cognitive biasing from psychological issues. Although post-concussion cannot be fully excluded, it seems very unlikely." The VA examiner's reliance upon this report, without considering the impact of pre-service injuries and in-service injuries on the claimed injury from the IED/RPG attack in the rationale is error and requires a remand. As for the opinion and rationale in the October 2009 VA examination, inadequacies require remand. The diagnosis was mild TBI with no residuals, and the VA examiner noted a diagnosis of mild TBI in service with no diagnosis of residuals. The VA examiner stated that while the Veteran had some symptoms that may be post-concussive, two separate evaluations have concluded the symptoms are unlikely related to a combat TBI. The VA examiner noted that there was some suggestion the injury of falling off the roof would be more likely to cause symptoms, however the Veteran had several incidents subsequently without complaint until recently, and had been diagnosed with a concussion that was not service related in the past. The Board notes that the VA examiner appears to attribute the Veteran's symptoms to prior head trauma due to falling off the roof and subsequent incidents, and not to the IED/RPG blasts the Veteran was exposed to in service. However, the VA examiner did not address aggravation of any pre-existing injuries including prior head trauma suffered before service, or the impact of head injuries the Veteran reported in his history during service (hit head on radiator during fight; slipped and hit head on ice while stationed in Germany; IED/RPG blasts in October 2004 incident) and their impact on current symptoms. As such, the VA examination is inadequate and incomplete, and requires remand. The Board has also determined that the new VA examination should include consideration of any evaluations given to the Veteran after he was notified in May 2009 and June 2009 that he had to provide additional medical information and undergo medical review to meet medical retention standards prior to mobilization and recall to active duty from the reserves. The Board notes that the September 2009 physical review board found that he did not meet medical retention standards, and cited TBI, chronic post traumatic stress disorder, and decreased visual acuity as relevant diagnoses. A subsequent medical determination December 2009 concluded that the Veteran was medical[ly] unacceptable under the TBI chapter, and he was ultimately discharged from the reserves March 2010. The VA examiner should consider the findings from these evaluations in the new examination. It is unclear whether the nurse practitioner who conducted the October 2009 VA TBI examination was clinically privileged to conduct this type of examination. Nor does it indicate whether the TBI examination was conducted under close supervision of a board-certified or board-eligible physiatrist, neurologist, or psychiatrist. As such, the new VA examination must be conducted with an appropriate, qualified physician specialist. Finally, the Board notes that service treatment records from the Veteran's first period of service (June 1980 to June 1984) are not in the record, and a December 13, 2010, RO deferred rating decision in the claims file requested a review for completion of a formal finding of STR unavailability for this period of service. However, the claims file does not reflect formal finding of unavailability, including the methods used to obtain these records. This is important, as the VA examination includes the Veteran's report of 4 accidents with head injuries other than the October 2004 IED/RPG blasts, including a fight in the Army where he hit his head on a radiator and got a scar on the back of his head, and a slip and fall on ice while in Germany with a reported brief loss of consciousness and stitches. Without the June 1980 to June 1984 records or a finding that the records are unavailable, it is unclear whether other incidents reported at the VA examination (motor vehicle accident with concussion; falling off the roof in 1990s) were ever noted in his service treatment records at entry or reactivation for active duty. In addition, it precludes the adjudicator's ability to determine if the incidents the Veteran reported that occurred in service were treated in service, and for any findings to be reviewed. The presumption of soundness and aggravation of pre-existing injuries are implicated by these other incidents of reported head trauma. As such, the RO must exhaust the methods available to locate these missing records, and make a formal finding of unavailability if they cannot be found and apply appropriate presumptions of soundness and benefit of the doubt in the re-adjudication of the Veteran's claim. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete an authorization and consent form to request any private records relevant to his claim of service-connection for residuals of traumatic brain injury (TBI), claimed as headaches, blurred vision, memory loss, and concussion. Request all VA records pertaining to the Veteran since November 2010, and associate them with the claims file. 2. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities to obtain service treatment records from June 1980 to June 1984 for the Veteran. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA traumatic brain injury examination, by an appropriate specialist physician (neurology, neurosurgery, psychiatry) with training and experience in TBI, at a VA medical facility, to assess the Veteran's asserted residuals of traumatic brain injury (TBI), claimed as headaches, blurred vision, memory loss, and concussion. The entire claims file, to include a complete copy of this REMAND, along with copies of any relevant Virtual VA records, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies for the Traumatic Brain Injury Examination, including relevant MRI, MRA, x-ray, neuropsychological, and neurobehavioral testing should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must take a complete medical history of the Veteran, to include any head injuries and associated symptoms. The examiner must also conduct a complete physical examination with objective findings, including testing of the following: motor function; muscle tone; muscle reflex; sensory function; gait/spasticity/cerebellar signs; autonomic nervous system; cranial nerves; cognitive impairment (with screening with appropriate tests, and neuropsychological testing to confirm presence and extent of cognitive impairment); psychiatric manifestations; vision and hearing; skin; endocrine dysfunction; autonomic dysfunction; any other abnormal physical findings; and, assessment of cognitive impairment and other residuals of TBI not otherwise classified. The examiner is asked to distinguish symptoms associated with a psychiatric disorder and residuals of TBI. If the examiner feels it is necessary, conduct a psychiatric examination. a. The examiner must clearly identify (by diagnosis) and list any and all currently manifested diagnoses. b. The examiner is advised to consider the Veteran's reported history, including any prior head injuries and asserted head injuries from the IED/RPG blasts in October 2004 and their impact on current symptoms. The examiner should also consider the physical review board evaluations the Veteran underwent when he was ultimately discharged from reserve service as medical[ly] unacceptable under the TBI chapter. c. The examiner is also requested to address the following questions: Is it clear and unmistakable that the Veteran had a head injury (please specifically identify such by diagnosis/manifestations) prior to his service enlistment in June 1980? d. If the Veteran did have a head injury prior to his service enlistment in June 1980, is it clear and unmistakable that such a condition was not aggravated (permanently worsened) during, or as a result of, the Veteran's period of military service from June 1980 to June 1984? e. If there was an aggravation (permanent worsening) of a preexisting head injury during, or as a result of, the Veteran's period of military service from June 1980 to June 1984, is it clear and unmistakable that the aggravation was not due to the natural progress of that condition? f. If it is not clear that the Veteran had a head injury prior to his service enlistment in June 1980, did any currently manifested head injury: (1) have its onset during service; (2) manifest within the first post-service year after the Veteran's discharge from service in June 1984; OR, (3) is such a head injury otherwise etiologically related to service or any incident therein? g. Is it clear and unmistakable that the Veteran had a head injury (please specifically identify such by diagnosis/manifestations) prior to his service enlistment in December 2003? h. If the Veteran did have a head injury prior to his service enlistment in December 2003, is it clear and unmistakable that such a condition was not aggravated (permanently worsened) during, or as a result of, the Veteran's period of military service from December 2003to March 2005? i. If there was an aggravation (permanent worsening) of a preexisting head injury during, or as a result of, the Veteran's period of military service from December 2003to March 2005, is it clear and unmistakable that the aggravation was not due to the natural progress of that condition? j. If it is not clear that the Veteran had a head injury prior to his service enlistment in December 2003, did any currently manifested head injury: (1) have its onset during service; (2) manifest within the first post-service year after the Veteran's discharge from service in March 2005; OR, (3) is such a head injury otherwise etiologically related to service or any incident therein? In all conclusions, it is essential that any examiner providing an opinion also give a complete explanation and discussion supporting that opinion. If any opinion and supporting explanation cannot be provided without invoking processes relating to guesses or judgment based upon mere conjecture, the examiner should clearly and specifically so specify in the report, and explain this is so. In this regard, if the examiner concludes that there is insufficient information to provide an etiological opinion without resorting to speculation, the examiner should state whether the inability to provide a definitive opinion was due to the need for further information (with said needed information identified) or because the limits of medical knowledge had been exhausted regarding the medical issue at hand. The examiner must indicate the Veteran's capacity to manage financial affairs, the impact of injury or disease on the Veteran's ability to manage his financial affairs, and whether the examiner believes the Veteran is capable of managing his financial affairs based on the examination. 4. After the Directives above have been completed, re-adjudicate the Veteran's claim in light of all pertinent evidence (to include all evidence added to the records since the last adjudication) and legal authority. 5. If the claim remains denied, issue to the Veteran and his representative a supplemental statement of the case (SSOC), and afford them the appropriate period of time to respond thereto before the claims file is returned to the Board for further appellate consideration. 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. 2013). ______________________________________________ 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) (2013).