Citation Nr: 1307145 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 09-28 553 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for the residuals of a closed head injury. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from October 1961 to August 1982. He served in the Republic of Vietnam during the Vietnam War era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) located in Waco, Texas that denied the claim on appeal. The Veteran also appealed the denials of service connection for disabilities of the right knee, hypertension, vision loss, left wrist, right ankle, and an increased rating for hearing loss. In January 2010, the RO granted service connection for hypertension, right ankle, and a right knee disability. As this rating action results in a full grant of the benefit sought, these issues are not before the Board. In his January 2010 substantive appeal (VA Form 9), the Veteran limited the issues on appeal to service connection for lumbar strain, right shoulder strain, and a head injury. The Veteran was afforded a December 2011 hearing before the undersigned at the RO. The hearing transcript is associated with the record. In an April 2012 decision, the Board granted entitlement to service connection for a low back disability. This is a full grant of the benefit sought and this matter is no longer on appeal. The Board also reopened a previously denied claim for service connection for a head injury. This claim was then remanded for additional development. A December 2012 rating decision granted entitlement to service connection for a right shoulder disability. This is a full grant of the benefit sought with regard to that issue. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. The appeal is remanded to the RO via the Appeals Management Center (AMC). The Veteran will be advised if further action is required on his part. REMAND At his hearing, the Veteran testified that he had experienced intermittent headaches and tenderness on the right side of his head ever since an artillery blast injury in service. Service treatment records document the blasé injury and the Veteran's reports of headaches on one occasion. In accordance with the Board's previous remand instructions the Veteran was afforded a VA examination in May 2012. The examiner commented that the Veteran did not have headaches or subjective complaints related to traumatic brain injury, but provided no rationale for this opinion. A medical opinion is generally not adequate unless it is supported by a rationale. Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008). VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, the courts will vacate the decision and remand the appeal "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination.'" Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993); see Deloach v. Shinseki,-F.3d-, 2013 WL 335945 (Fed. Cir. Jan 30, 2013) (NO. 2011-7147, 2011-7166). Accordingly, this case is REMANDED for the following: 1. Ask the examiner who conducted the June 2012 traumatic brain injury examination to review the claims folder and provide an addendum to the examination report. The examiner should consider the Veteran's testimony that he had experienced intermittent headaches and tenderness on the right side of his head since the artillery blast injury in service. The examiner should provide an opinion as to whether the reported tenderness and headaches are, at least as likely as not, residuals of the in-service artillery blast injury. The examiner should provide reasons for this opinion The examiner should note that the Veteran's testimony as to his symptoms is competent. The absence of supporting evidence in clinical records is an insufficient reason, by itself, to reject his reports. If an opinion cannot be provided without resort to speculation, the examiner should provide reasons why this is so; and state whether the inability to provide the needed opinion is due to the absence of specific evidence or is due to the limits of scientific knowledge. If the examiner who conducted the June 2012 examination is unavailable, another physician may review the record and provide the needed opinion and explanation. 2. If the appeal remains denied, the agency of original jurisdiction should issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. 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. 2012). ____________________________________________ Mark D. Hindin 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) (2012).