Citation Nr: 1340448 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-42 675 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for residuals of traumatic brain injury (TBI), to include headaches. REPRESENTATION Veteran represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Counsel INTRODUCTION The Veteran served on active duty from March 1963 to February 1966. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified before the undersigned in a videoconference hearing in April 2011. A transcript of that hearing was produced, but it contained a number of notations that the recording was inaudible. In July 2011, the Board remanded this case to afford the Veteran another videoconference hearing. The Veteran again testified before the undersigned via videoconference in October 2011. That hearing transcript is sufficient. Transcripts of both hearings are of record. In February 2013, the Board granted service connection for posttraumatic stress disorder (PTSD) and remanded the TBI issue. The issues of service connection for a neck and back disorder were raised in the October 2011 hearing. These issues were previously referred to the agency of original jurisdiction (AOJ). It does not appear that any action has been taken on such claims; therefore, they are again referred to the AOJ for adjudication. 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 Veteran was afforded a VA examination in March 2013 to determine the nature and etiology of any current TBI residuals, to include headaches. The examiner diagnosed tension headaches and opined that they were not the result of TBI or service because the Veteran reported symptoms beginning 35 or more years after service and there was no treatment during service. This opinion did not consider the documented complaints of headaches during service; or the Veteran's reports of persistent and recurring symptoms since the in-service injury during the 2011 Board hearings. VA must ensure that any medical examination or opinion that is provided when developing a claim is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (overruled on other grounds). Accordingly, the case is REMANDED for the following action: 1. Ask the examiner who provided the March 2013 VA examination to review the claims file. If that examiner is no longer available, the entire file another examiner should review the claims file. (The Veteran should be scheduled for a new VA examination if a full examination is deemed necessary by the examiner.) Review of the claims file should be noted in the addendum or examination report. The examiner should respond to the following: (a) Are the Veteran's current headaches at least as likely as not (probability of 50 percent or more) the result of TBI during service, to include the October 1965 parachuting incident, or otherwise related to the Veteran's service? In responding to this question, the examiner should comment on the significance of the Veteran's documented complaints of headaches during service in January 1966. The examiner should also consider the Veteran's reports of persistent headaches since service, along with the other evidence of record, including post-service treatment. (b) If there is no direct relationship to service: (1) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current headaches were caused by his service-connected PTSD with related depression and anxiety? (2) Is it at least as likely as not (probability of 50 percent or more) that the Veteran's current headaches were aggravated (meaning worsened beyond the natural progression) by his PTSD with related depression and anxiety? (3) If aggravated, is there medical evidence created prior to the aggravation or prior to the current level of disability that shows a baseline of headaches prior to aggravation. In responding to these questions, the examiner should comment on the significance of the January 2000 and March 2012 VA treatment records noting chronic headaches with nervousness and anxiety. The examiner should provide reasons for these opinions. The Veteran's statements cannot be rejected due solely to a lack of corroborating medical evidence. If the examiner chooses to reject the Veteran's statements, he/she should explain why. If any requested opinion cannot be offered without resorting to speculation, the examiner should why the necessary opinion cannot be offered, and what, if any, additional information or evidence is necessary. 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case before returning the case to the Board, 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). This claim must be afforded expeditious treatment. All claims 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). _________________________________________________ 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) (2013).