Citation Nr: 1329440 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 10-15 452 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for chronic brain syndrome, status post head trauma, to include as secondary to a personal assault in service. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from January 1964 to January 1967 and from January 1969 to October 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his April 2010 substantive appeal (VA Form 9), the Veteran requested a hearing before a Veterans Law Judge. A hearing was scheduled for December 2011, but in November 2011, the Veteran withdrew his request for such hearing. As no further communication from the Veteran with regard to a hearing has been received, the Board considers his request for a hearing to remain withdrawn. See 38 C.F.R. §§ 20.702(d), (e); 20.704(d), (e) (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 Regrettably, the Board's review of the record indicates that another remand is necessary. The evidence establishes that the Veteran was involved in a motor vehicle accident in April 1967 and that he sustained a closed head injury. Contemporaneous treatment records show that the Veteran had residual right-sided weakness and personality changes with low average intelligence, immaturity, maladjustment, and lack of insight. A June 1968 note from his private physician shows that the Veteran's behavior disorder had remained unchanged and that his prognosis was guarded. Based on this information, the Board finds that there is clear and unmistakable evidence that the Veteran had chronic brain syndrome prior to entrance into service in January 1969. However, the evidence is insufficient for the Board to determine whether the chronic brain syndrome was not aggravated by service. The Veteran underwent a Medical Evaluation Board (MEB) in August 1969. Symptoms at that time included poor memory, slow thinking, intellectual enfeeblement, aphasic residuals, minimal right-sided motor system limitations, judgmental defects, and poor impulse control. The Veteran was also noted to have a depressive reaction manifested by low self-esteem, inferiority feelings, feelings of hopelessness, psychomotor retardation, apathy, despondency relieved by excessive alcohol intake, and bleakness with respect to his future. While these symptoms were found to have existed prior to service by the MEB, the Board is not bound by this finding. Therefore, the Board requires an opinion as to whether the Veteran's chronic brain syndrome was clearly and unmistakably not aggravated by his military service. Accordingly, the case is REMANDED for the following action: 1. Send the claims file to the February 2013 VA examiner to obtain another opinion as to the etiology of the Veteran's chronic brain syndrome. Upon a review of the record, the examiner should respond to the following: Did the Veteran's chronic brain syndrome worsen in service? If it worsened in service, does the evidence clearly and unmistakably establish that the Veteran's chronic brain syndrome was not aggravated by service? The examiner is instructed that to find that the disability in question clearly and unmistakably was not aggravated by service, the evidence must be obvious, manifest, and undebatable in establishing that it was not aggravated by service. See Cotant v. Principi, 17 Vet. App. 116 (2003). Aggravation exists when there is an increase in disability during service that is not due to the natural progress of the disease. Temporary or intermittent flare- ups during service of a preexisting injury or disease are not sufficient to be considered aggravation unless the underlying condition, as opposed to symptoms, is worsened. Aggravation may not be conceded where the underlying disability underwent no increase in severity during service. The examiner is advised that, while the Veteran claims his disability was aggravated by a personal assault in service, the Board is ultimately concerned with whether aggravation occurred, regardless of the cause of the aggravation. A complete rationale for any opinion advanced must be provided. If it is determined that the opinion cannot be obtained without another clinical examination, such examination should be scheduled. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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). 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).