Citation Nr: 1315451 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 10-12 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from March 2002 to May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the September 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Veteran testified at a videoconference hearing in November 2012 that was conducted at the Wilkes Barre RO before the undersigned Acting Veterans Law Judge, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A copy of the transcript of that hearing has been associated with the claims file. The Board notes that the Veteran submitted additional evidence to the Board after the appeal was certified to the Board. The submission of such evidence was accompanied by a waiver of RO consideration. 38 C.F.R. § 20.1304(c) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); 38 C.F.R. § 3.159(c)(4) (2012). In the present appeal, the Veteran contends that he suffered a TBI when an improvised explosive device (IED) detonated several feet away from his location during his period of deployment in Iraq. He further claims to have sustained a TBI after continual exposure to repeated mortar explosions while stationed at his base camp in Iraq. During the November 2012 hearing, the Veteran testified that he was in the back of the military vehicle when the impact of an IED explosion several feet away caused him to fall off the back of the vehicle and land on his head. See November 2012 Hearing Transcript (T.), p. 3. The Veteran also submitted a statement written by his former fellow serviceman, G.S., wherein he recalled how the base camp he and the Veteran were stationed at during their period of service in Iraq was continually hit by mortar rounds, and recalled one particular incident in which their camp was struck by a mortar round "near a berm inside the camp grounds." According to G.S., this was one of the many blasts sustained inside their camp, and one particular blast occurred twenty feet from their building. See undated statement issued by G.S. According to the Veteran, he currently suffers from residuals of these traumatic events, to include headaches, memory loss, difficulty concentrating, fatigue, mood swings and erratic sleeping problems. See T., pp. 4-5; see also September 2009 and September 2012 statements of Veteran. [The Board notes that the RO has already granted service connection for the Veteran's headaches as well as his bipolar disorder, as reflected by the September 2005 and 2009 rating decisions.] The Veteran's service treatment records reflect that he served in Iraq for several months in 2003 and 2004, and his DD form 214 reflects that he received a Combat Action Ribbon. In the case of any Veteran who engaged in combat with the enemy in active service, the VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the Veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Given the corroborating evidence, the Veteran's service in combat with enemy forces is, therefore, conceded, and the blasts to which he was purportedly exposed are presumed to have occurred. At the October 2007 VA consultation, the Veteran provided his military history and described some of the symptoms he believed to be attributed to his TBI. According to the Veteran, these symptoms include mild dizziness and loss of balance, as well as severe headaches which start in the back of his head and move forward. He also reported to have a moderate level of nausea associated with his headaches and described moderate sensitivity to bright lights and noise. In addition, the Veteran reported to experience fatigue, and stated that he is very forgetful and has problems concentrating, getting organized and making decisions. Upon neurological examination, the VA physician noted that the Veteran was fully alert and oriented to person, place, time and situation, and capable of quickly memorizing information. While the Veteran had trouble completing the "serial 3s," he was able to complete the "serial 7s" correctly, his speech fluency was described as good, and his balance while sitting and standing were within normal limits. The VA physician further noted that the extraocular motions were intact, and described the Veteran's pupils as equal, round, and reactive to light and accommodation. Based on his evaluation of the Veteran, the VA physician assessed him with a possible TBI, and noted that while the Veteran's history was not "totally smooth or consistent," he did report "sufficient enough trauma to possibly sustain a traumatic brain injury diffuse axonal injury." A TBI second level evaluation was conducted in February 2009, at which time the Veteran provided a brief synopsis of the circumstances leading to his in-service injuries, and described the extent of his residual symptoms, which include but are not limited to, a mild level of nausea and coordination problems; moderate dizziness, loss of balance, vision problems, and sensitivity to light; and a severe level of headaches, concentration difficulties, and sensitivity to noise. According to the Veteran, these symptoms have severely interfered with his life. The VA neurologist noted that the neurological examination findings were normal, and that the Veteran had already undergone a magnetic resonance imaging (MRI) of his brain, the results of which were normal. She further noted that neuropsychological testing had already been completed and was clear for any significant cognitive impairment. She assessed the Veteran with bilateral maxillary sinusitis. According to the VA neurologist, the Veteran's self-reporting symptoms were consistent with a diagnosis of TBI. The Veteran was afforded a VA TBI examination in September 2009. During this evaluation, the Veteran once again provided his military history and described two in-service events which he believed to be the cause of his TBI. The Veteran explained that he was part of a convoy when an IED hit a truck that was several cars ahead of him. According to the Veteran, the blasts reverberating from this explosion caused him to lose consciousness. Another incident occurred several years later wherein the Veteran reportedly fell out of a truck and hit his head while attempting to prevent an altercation with detainees. According to the Veteran, he suffered momentary loss of consciousness on both occasions. With respect to his current symptoms, the Veteran reported to experience headaches with associated lightheadedness and dizziness, as well as decreased attention and concentration. He also reported to have poor sleep, balance and mobility problems, and impaired long-term memory. Based on his physical and neurological evaluation of the Veteran, the VA examiner diagnosed the Veteran with chronic headaches which have features of migraine headache and chronic low back pain secondary to degenerative spine disease. According to the VA examiner, both these disorders are the result of the Veteran's self-reported in-service injuries during his deployment in Iraq. The Board acknowledges these diagnoses, but notes that the examiner did not provide a clear explanation as to whether the Veteran currently suffers from residuals of his TBI as a result of his in-service mortar and IED explosions. Indeed, the medical opinion is somewhat unclear as to whether the VA examiner believed the Veteran's headaches to be part of his TBI residuals, or a disability separate and distinct from any potential TBI residuals. As previously highlighted above, the Veteran's claim for service connection for headaches was separate from his claim for TBI residuals, and the RO already granted service connection for the Veteran's headaches as reflected by the September 2009 rating action. Unfortunately, the September 2009 VA medical opinion leaves the Board to question whether the Veteran currently suffers from TBI residuals separate from, or in addition to, his headaches. The diagnoses provided do not take into consideration the Veteran's complaints of difficulty concentrating, long-term memory impairment, problems with his balance and mobility, and sensitivity to noise and light, and no additional explanation was provided in the medical opinion as to what these symptoms may be attributed to. The Board notes that a medical opinion is considered adequate only "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" See Stefl v. Nicholson, 21 Vet. App. 120, 122 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). While the October 2007 consultation report reflects an assessment of a possible TBI, the Board finds that this opinion suffers from a lack of specificity and certainty. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus). In addition, while the VA neurologist noted that the examination findings were consistent with a diagnosis of TBI at the February 2009 TBI second level evaluation, this appears to be based on the Veteran's self-reported statements describing the extent of his symptoms, and not on an actual objective medical findings. In light of the incomplete medical findings, the Board finds that the Veteran's claim for service connection for residuals of a TBI must be remanded for the agency of original jurisdiction (AOJ) to request from the examiner who conducted the September 2009 VA examination an addendum to that report that sets forth an explanation as to whether the Veteran currently has residuals of a TBI based on the examination findings and reported symptoms. The examiner must discuss whether the Veteran has a specific disability, separate from his diagnosed bipolar disorder headaches, that accounts for his reported symptoms of impaired long-term memory, poor concentration, fatigue, sensitivity to noise and light, and balance and coordination problems, to list a few. The examiner should also be informed that the Veteran has already been service-connected for his bipolar disorder and headaches with features of a migraine. As such, the examiner should attempt to distinguish between any symptoms that may be related to the service-connected bipolar disorder and headaches from those that may be related to a TBI. The Board is precluded from differentiating between symptomatology attributed to a non service-connected disability and a service-connected disability in the absence of medical evidence which does so. Mittleider v. West, 11 Vet. App. 181 (1998). In addition, during the September 2009 VA examination, the Veteran indicated that he had undergone a MRI of his brain and a neuropsychological evaluation sometime in December 2008. However, the specified treatment records have not been associated with the claims file, nor has any attempt been made to obtain the specified treatment records. Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to make a reasonable effort to obtain identified private treatment records as well as records in the custody of a Federal department or agency. See 38 C.F.R. § 3.159(c)(1)-(2). As such, the claim must be remanded to attempt to obtain the specified treatment records. Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information form(s) if necessary, procure and associate with the claims folder copies of a December 2008 brain MRI report, and records of any neuropsychological testing that the Veteran may have received anytime between October 2007 to February 2009. If any records are not obtained, inform the Veteran and provide him an opportunity to submit the records. All such available documents should be associated with the Veteran's claims folder. 2. Once these records have been obtained and associated with the claims file, refer the file to the examiner who conducted the September 2009 examination. The claims folder, the records located on Virtual VA, and a copy of this remand must be made available to, and reviewed by, the examiner. Following a review of the record, the examiner should then express an opinion as to a.) Whether the Veteran has any current residuals of a TBI? In discussing this, please distinguish between symptomatology that is attributed to the Veteran's already service-connected bipolar disorder and headaches from symptomatology attributed to potential TBI residuals. If certain symptoms cannot be ascribed to a specific diagnosis, this should be indicated. If it is found that the Veteran does not have residuals of a TBI, and his symptomatology cannot be attributed to his service-connected bipolar disorder and headaches, then provide an opinion as to whether the Veteran's self-described symptoms (including, but not limited to, memory loss, poor concentration, decreased attention, balance/mobility problems, sensitivity to light and noise, difficulty making decisions, slowed thinking and fatigue) can be attributed to any specific disability. b.) If the Veteran does have residuals of a TBI, is at least as likely as not (i.e., a 50 percent probability or greater) that the TBI residuals had their clinical onset in service or are otherwise related to the Veteran's military service, to include his conceded in-service exposure to mortar and IED explosions. In answering these questions, the examiner should also address the Veteran's competent assertions that he has experienced symptoms of TBI residuals since service, and should specifically set forth the medical reasons for accepting or rejecting the Veteran's statements regarding continuity of symptoms since his military service. If the examiner finds that the Veteran's disability(ies) is(are) not related to his service, then he or she must provide a complete rationale upon which his or her opinion is based, and must include a discussion of the medical principles as applied to the medical evidence and facts used in establishing his or her opinion. If the examiner determines that he/she cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) (If the examiner who conducted the September 2009 examination is no longer available, the file should be referred to a clinician with sufficient expertise to address the questions set out above. If further examination of the Veteran is required, this should be scheduled.) 3. After completing the above, readjudicate the issue remaining on appeal. If any benefit sought on appeal is not granted, 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 before the case is returned to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ THOMAS H. O'SHAY Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court 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).