Citation Nr: 1301904 Decision Date: 01/17/13 Archive Date: 01/23/13 DOCKET NO. 09-40 283 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD), in excess of 70 percent prior to January 15, 2010. 2. Entitlement to service connection for traumatic brain injury. ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from January 1988 to January 1992. This appeal comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the RO in Philadelphia, Pennsylvania. The issue of entitlement to service connection for traumatic brain injury is addressed in the REMAND below and is therein REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue decided herein has been accomplished. 2. Prior to January 15, 2010, the evidence for and against whether Veteran's PTSD was manifested by total occupational and social impairment is in approximate balance. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, prior to January 15, 2010, the criteria for a total disability rating for PTSD were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). As the Board is granting a 100 percent rating for PTSD prior to January 15, 2010, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance) Disability Ratings - Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Although the claimant's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). When a claimant is awarded service connection and assigned an initial rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). In Hart v. Mansfield, 21 Vet. App. 505, 511 (2007), the CAVC extended entitlement to staged ratings to claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." In the process of evaluating a mental disorder, VA is required to consider a number of pertinent factors, such as the frequency, severity, and duration of a veteran's psychiatric symptoms. See 38 C.F.R. § 4.126. After consideration of these factors, and based on all the evidence of record that bears on occupational and social impairment, VA must assign a disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering. Just as in a claim for service connection, in rendering a decision on a disability rating claim, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Analysis of Rating for PTSD In a June 2005 rating decision, the RO granted service connection for PTSD and assigned an initial disability rating of 30 percent, pursuant to Diagnostic Code 9411, effective July 26, 2004. In a June 2008 rating decision, the disability rating was increased to 50 percent, effective March 13, 2008. In a November 2008 rating decision, the disability rating for PTSD was increased to 70 percent, effective August 11, 2008. This appeal arises from a claim received on February 9, 2009. In the appealed March 2009 rating decision, the RO denied a disability rating for PTSD in excess of 70 percent. However, during the course of the appeal, in a September 2011 rating decision, the RO granted a 100 percent rating for PTSD, effective January 15, 2010. The Veteran now seeks a disability rating in excess of 70 percent prior to January 15, 2010. The VA Secretary, acting within his authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the VA Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The schedular criteria incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). 38 C.F.R. §§ 4.125, 4.130. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). Pertinent to the claim on appeal, the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: a 10 percent rating is warranted for PTSD if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted for PTSD if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if it is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to compete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating, may be assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. 4.130, Diagnostic Code 9411. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A GAF score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A GAF score from 31 to 40 reflects some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A GAF score of 41-50 indicates "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A GAF score of 51-60 indicates "Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." A GAF score of 61-70 indicates "Mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." As noted previously, the Veteran is assigned a 100 percent disability rating for PTSD, effective January 15, 2010. A review of the September 2011 rating decision reveals that this was based on a January 15, 2010 VA outpatient examination, which revealed worsening symptoms of PTSD and the examiner's opinion that it was unlikely that he would be able to maintain gainful employment. A January 2011 VA examination report revealed significant interference with employment and social functioning, including severe memory loss, frequent panic attacks lasting up to four hours, and an inability to control anger outbursts. The examiner assigned a GAF score of 20. The question before the Board is whether it is factually ascertainable that the worsening in symptomatology that supports a total disability rating occurred prior to January 15, 2010. For reasons next addressed, the Board finds that the evidence for and against entitlement to a total disability rating prior to January 15, 2010 is in approximate balance. Pertinent to the period on appeal, the evidence prior to the January 2010 VA examination is somewhat mixed. Notably, findings on VA examination in March 2009 reflect symptoms of somewhat decreased intensity as compared with findings before and after that examination. On VA examination in October 2008, the Veteran was found to have significant functional impairment associated with his PTSD. At that time, he was neglecting his personal hygiene to the point that he would shower only one time in three to five days and might brush his teeth only once in three days. He also had been unable to work. It was noted that he last worked nine months prior at a job in shipping and receiving. However, he developed paranoid thinking at his job, and believed people were talking about him or typing in the computer about him and that they were conspiring against him in order to get him fired. He reportedly made mistakes at his job because of impaired concentration. He also had much anxiety at his job and sought reassurance repeatedly from his boss. He called his boss a lot, which was annoying to his boss and led to his boss being angry and yelling at him, which in turn fed his own anger and paranoia. In the social domain, he was no longer going out to movies or to dinner with his wife. He would ask her repeatedly certain questions because of his impaired concentration and his anxiety and need for reassurance, which was annoying to his wife. His nightmares would awaken his wife and he required her sometimes to help to check the safety of the home. He was short-tempered, would yell, and was argumentative with his wife over even small things. These symptoms would occur on a daily basis. His anger was also affecting his relationships with his children. He was nearly physically aggressive with them, but his wife would intervene to stop him. This would occur approximately four times per week. He would not drive because of intrusive memories. He would get angry at strangers easily, as a passenger in the car, and shopping. He could no longer work on a car because of difficulty focusing his concentration. He had difficulty following conversations because of his impaired concentration. He would stay home most of the time. His wife had to pressure him to go out. He had lost interest in swimming and diving at which he used to compete on a very high level, and had lost interest in other sports. He had a sense of a foreshortened future in which he felt he would die in his sleep. He was experiencing panic attacks on a daily basis. He reported feeling that his symptoms had become worse since the prior VA examination. In addition to symptoms of occupational and social impairment, the Veteran reported delusional symptoms. He reported having an experience of hearing loud noises, loud booms, that his wife would not hear. This was relatively infrequent, but an unusual sensory experience. He also had difficulty with his cognitive functioning that the examiner noted was apparent during the interview. He had difficulty finding words and formulating his thoughts. His wife was present in the interview at his invitation, and she helped him to communicate by giving him the word he was looking for several times during the interview. There were moments during the interview that the Veteran used an expression that just did not make sense to the examiner. For example, he used the term "affection of controversy" during the interview. When asked what he said, he clarified that that is what he said. He believed that he was communicating something, but the expression did not make sense in the context and, according to the examiner, did not make sense really at all. The Veteran also reported significant impairment associated with short-term memory and concentration. He reportedly tried to cook an egg in a frying pan and he forgot that he was cooking it or that the flame was on and he ended up with flames burning his cabinets, scorching the wall, and nearly starting a house fire. The examiner assigned a GAF score of 38, which is consistent with some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). Notably, this GAF score is consistent with the inability to work. Shortly before the October 2008 examination, on VA examination in June 2008, it was noted that the Veteran had been doing much worse. He would avoid crowds because he was uncomfortable around large numbers of people. Insomnia had progressively worsened over the past three years. He had an exaggerated startle reflex that had been unchanged since his return from Iraq in 1990. Over the prior year, the Veteran had not worked. He reported a significant problem at work and thought that this was related to his PTSD symptoms. He had difficulty working with more than two co-workers, as this lead to frequent arguments. He had difficulty focusing and maintaining his attention and staying on the job task, he had a history of forgetting job tasks and he had made numerous job-related mistakes. The Veteran had been written up on several occasions for job related mistakes and not paying attention. He was not sure whether his job problems would result in a permanent firing. He was diagnosed as having significant occupational impairments. At the time of the examination, he was able to carry out all of his activities of daily living. He was oriented to time, person and place, and his memory was normal for remote and recent events. Overall, his intellectual functions were in the normal range and he had normal cognitive functions. However, his mood was low and his affect was sad. His level of anxiety would range between moderately high to high throughout the interview. The depression was rated as having a moderate to moderately severe intensity. A GAF score of 41 was assessed. Thus, it would appear that a definite worsening occurred in the Veteran's PTSD symptoms consistent with the June 2008 and October 2008 examinations. The Veteran filed his claim in February 2009, so the evidence one year prior to the claim is directly pertinent to the issue on appeal. While at the June 2008 examination, the Veteran was not neglecting his personal hygiene, was not described as paranoid or as having impaired concentration, inability to follow instructions, and difficulty finding words and expressing his own thoughts, at the October 2008 examination, these symptoms were specifically noted. More significantly, the Veteran had stopped working due to these symptoms and was not working at the time of the October 2008 examination. The Board finds that these symptoms are consistent with gross impairment in thought processes or communication, persistent delusions or hallucinations, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). As noted above, there has been some inconsistency in the evidence. On VA examination in March 2009, the Veteran's PTSD symptoms do not appear to have been as severe as in the prior two examinations. The examiner found that the Veteran showed no serious impairment of thought process or communication at that time. He appeared to be in good reality contact and was oriented in all three spheres. There were no delusions or hallucinations in his thought content, and no active suicidal or homicidal ideation. Reasoning and judgment seemed adequately intact. However, his memory was poor for both recent and remote events. He communicated fairly well, although he was not real talkative throughout this interview. He presented as casually and appropriately dressed and he spoke in a clear and coherent manner. He had good reality contact and was oriented in all three spheres. There were no delusions or hallucinations in his thought content; there was some suicidal ideation recently, but no plan or intention to carry this out. There was no homicidal ideation. Reasoning and judgment seemed adequately intact, and his memory was poor for both recent and remote events. His affect was somewhat depressed and anxious. A GAF score of 48 was assigned. Despite the seemingly improved findings on clinical evaluation in March 2009, the Veteran's complaints were quite similar to the prior and subsequent examinations. The Veteran reported that, when awake, he was quite vigilant, checking doors and windows, and needing to patrol outside of the house scanning the environment. In buildings or restaurants he needed to sit with his back to a wall where he could see everybody. He would frequently experience anxiety symptoms with hyperventilation at times, and stated that he does not go out to dinner anymore very much with his wife. He reported startling to loud noises, and stated that the 4th of July particularly upset him. He described that his mood was short and temperamental, and he found himself irritable and short tempered a lot. He argued easily with those around him, and had significant problems getting along with his kids as well as his wife in maintaining personal relationships. His wife confirmed this. He had been told that he was cold and somewhat insensitive to other people's feelings. In the work environment, he had difficulty with people that he worked with, including supervisors. He pointed out that it was his first week back to work after getting off disability due to serious stress problems. He pointed out that things were not going well at work and that he had already been reprimanded. He had missed time from work due to his emotional problems. The Veteran described that, when he felt depressed, he would go to his room, shut the door, and hide from everybody. He had withdrawn for a couple of days at a time, and tended to ignore his grooming habits at times. He reported night sweats and had even urinated on himself at times due to anxiety. He reported suicidal thoughts, and had the feeling that he will not live long and that something terrible will happen to him. He would shake and sweats, and get a tightening feeling in his chest. These panicky-type symptoms were happening two or three times per week. Thus, while the Veteran's symptoms may have moderated somewhat by the time of the March 2009 VA examination, this was clearly not a lasting improvement, as the Veteran's condition in January 2011 was arguably worse than it had ever been. For these reasons, the Board finds that a staged rating is not appropriate in this case, and that, prior to January 15, 2010, the evidence for and against entitlement to a total disability rating for PTSD is in approximate balance. Resolving all reasonable doubt in the Veteran's favor, the Board finds that, prior to January 15, 2010, a total disability rating is warranted. In light of the Board's grant of the maximum benefit sought on appeal, consideration of referral of the claim for extraschedular consideration is not warranted. ORDER Resolving reasonable doubt in the Veteran's favor, prior to January 15, 2010, a total disability rating for PTSD is granted. REMAND A remand is required to ensure that there is a complete record upon which to decide the Veteran's claim of entitlement to service connection for a traumatic brain injury. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c), (d) (2012). In order to establish service connection for a claimed disorder, generally, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A reading of the March 2009 rating decision indicates that the RO denied service connection for a traumatic brain injury based on evidence indicating that the Veteran sustained a traumatic brain injury in September 2007, due to a fight. However, the Veteran has acknowledged this post-service injury. His essential contention is that exposure to concussive effects of explosions in service predisposed him to injury in the post-service injury. On his claim form, the Veteran contended that he sustained a traumatic brain injury as a result of air concussions in service. On his notice of disagreement, he specifically acknowledged that he had an injury that was after service, but argued that the effect of this injury was worsened by the effect of a brain injury sustained during his service in Iraq due to several air concussions. On the VA Form 9, he again acknowledged a post-service injury, but asserted that his exposure to "air concussion" made this recent injury worse. The post-service clinical evidence offers some support for the Veteran's assertion. On a March 2009 VA examination, it was noted that the Veteran was wounded from a concussion from an explosion on one occasion, and now suffers from headaches as a result of his concussions. Unfortunately, the examiner did not discuss or acknowledge the post-service injury. While the service treatment records do not indicate treatment for concussive effects of explosions, the Veteran does not assert that he was treated in service. The RO has granted service connection for PTSD based on stressors related to engagement in combat with the enemy. Accordingly, as combat has been previously shown and acknowledged, the Board finds that the combat rule is applicable, and the Veteran's assertions regarding having been exposed to concussive effects of explosions is accepted as true. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). However, this case presents certain medical questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern the relationship, if any, between the Veteran's diagnosed headaches and his military service. These questions must be addressed by an appropriately qualified medical professional. See Charles v. Principi, 16 Vet. App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the CAVC has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). Given the competent evidence of exposure to explosions in service, the Veteran's reported history of headaches, and the current diagnosis of a traumatic brain injury, the Board finds that a VA examination with medical nexus opinion is required to determine whether any current disability is causally related to service. Accordingly, the issue of entitlement to service connection for a traumatic brain injury is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed traumatic brain injury. The relevant documents in the claims file should be made available to the VA examiner. The examiner is directed to consider the Veteran's reported history of exposure to concussive effects of explosions in service. For the purposes of the examination, the Veteran's assertions should be accepted as true based on his combat service. The Veteran asserts that this exposure worsened the effect of a recent traumatic brain injury sustained due to a post-service fight. The VA examiner is requested to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that a traumatic brain injury or symptoms described as headaches are causally or etiologically related to the Veteran's active service. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. If the requested medical opinion cannot be given, the examiner should state the reason(s) why. 2. Readjudicate the remanded claim for service connection for traumatic brain injury. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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. 2011). ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs