Citation Nr: 1410129 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-35 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for anxiety disorder. 2. Entitlement to service connection for residuals of a traumatic brain injury (TBI). 3. Entitlement to service connection for skull indentation, to include as secondary to a TBI. 4. Entitlement to service connection for scarring, to include as secondary to a TBI. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to May 1971. These matters are on appeal from a July 2009 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. The Veteran testified during a hearing before a Decision Review Officer (DRO) at the RO in February 2010. A transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As regards the Veteran's claim for an increased rating for anxiety disorder, in the December 2013 Appellant's Brief, the Veteran contended that his anxiety disorder had increased in severity. The Board observes that the most recent VA examination for rating purposes was performed in May 2009. A new examination is therefore required to obtain updated findings regarding the severity of the Veteran's anxiety disorder. As regards the Veteran's claim for service connection for residuals of a TBI and a skull indentation and scarring, to include as secondary to the TBI, the Veteran's DD Form 214 listed his military occupational specialty (MOS) as a firefighter. He is a recipient of a Purple Heart. He contends that he suffered a head injury when his loader tank hit a land mine. In light of the Veteran's statements and the official records of his exposure to combat in service, the Veteran's alleged in-service head injury is presumed to have occurred. 38 U.S.C.A. § 1154(b). However, there is some question as to whether or not the Veteran's in-service head injury resulted in chronic residuals. On VA PTSD examination in January 2008, the examiner stated that the Veteran apparently sustained a "concussive-type" injury during service with significant retrograde amnesia and opined that it appeared that some of his anxiety symptoms were sequelae of that injury. A February 2010 VA treatment note suggested that the Veteran experienced headaches as a result of his in-service head injury. A June 2010 psychology report noted the presence of some sort of organic cognitive disorder that was unrelated to his anxiety disorder. None these reports/notes conclusively determined whether the Veteran actually has/had a TBI, however. Indeed, on VA TBI examination in July 2010, the examiner noted the Veteran's complaints of mild memory loss and mildly impaired judgment and opined that she was unable to determine if the Veteran had a TBI. She seems to have dismissed the prospect of the Veteran suffering an in-service head injury due to the lack of service treatment records recording the injury. However, as noted above, the occurrence of the injury is conceded. She also indicated that she was unable to determine which emotional/behavioral signs and symptoms are part of a co-morbid mental disorder and which represent residuals of a TBI. She indicated that she would be resorting to mere speculation to determine whether the Veteran suffered from the residuals of a TBI. Because the VA examiner did not provide any reasoning as to why such an opinion would be speculative, and because she seemed to dismiss the Veteran's account of suffering a head injury in service, the July 2010 opinion is found to be inadequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Jones v. Shinseki, 23 Vet. App. 382 (2010) (indicating that the examiner must explain why the requested opinion would be speculative before the Board could rely on such a conclusion.) A new examination/opinion is required. Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of the Veteran's treatment records from the Newington VAMC and any other identified VA facility since July 2010; records from the Hartford Vet Center from May 2007 to July 2007 and December 2007 to April 2008, and records from the Springfield Vet Center since October 2008. If the records are not available, or if the search for the records yields a negative result, that fact should be clearly documented on the Veteran's electronic claims file uploaded to the Veteran's electronic Virtual VA claims file, and the Veteran notified of the efforts made to obtain such records. 2. After any treatment reports are obtained pursuant to the development in directive (1) and associated with the Veteran's electronic VVA file, schedule him for a VA examination to determine the current severity of his anxiety disorder. The examiner must review the Veteran's electronic Virtual VA claims file be in conjunction with the examination. Any indicated studies should be performed and the examination report should comply with all AMIE protocols for rating psychiatric disorders. The examiner should obtain a detailed clinical history from the Veteran. The psychiatric examiner should identify what symptoms, if any, the Veteran currently manifests or has manifested in the recent past that are attributable to his service-connected anxiety disorder. The examiner is also requested, if possible, to determine and specifically list all symptoms as well as the levels of social and occupational impairment experienced by the Veteran that are attributable to his anxiety disorder. The examiner should assign a Global Assessment of Functioning (GAF) score for the Veteran's disorder consistent with the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and explain the significance of the score. The examiner should also discuss whether the Veteran's anxiety symptomatology is part and parcel of his service-connected anxiety disorder or constitute separate and distinct disorders, including whether such symptoms are distinguishable from any residuals of a TBI. Discussion of the January 2008 VA initial PTSD examiner's finding that it is likely that some of the Veteran's anxiety symptoms are the sequelae of the head injury sustained in service and July 2010 VA TBI examiner's opinion that she was unable to determine which emotional/behavioral signs are part of a co-morbid mental disorder and which represent residuals of TBI, would be helpful. The examiner should also provide an opinion concerning the impact of the anxiety disorder on the Veteran's ability to work. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, schedule an appropriate VA examination by an examiner other than the July 2010 VA examiner to determine the nature and etiology of any residuals of a TBI. The claims folder should be reviewed and that review should be indicated in the examination report. Any medically indicated special tests should be accomplished, and all special tests and clinical findings should be clearly reported. Specifically, the examiner should provide the following information: (a) Diagnose any current residuals of TBI, including headaches, a cognitive disorder, a skull indentation, and scarring. (b) Is it at least as likely as not (50 percent or more probability) that any residuals of a TBI including, but not limited to, headaches, a cognitive disorder, a skull indentation, and scarring were incurred in or aggravated by the Veteran's active service? For purposes of this Remand, the examiner should accept as true the Veteran's statements regarding the incurrence of an in-service head injury. In rendering the requested opinions, the examiner should specifically consider and discuss the Veteran's contentions set out in the most recent Brief of Appellant. Discussion of the January 2008 VA initial PTSD examiner's opinion that it is likely that some of the Veteran's anxiety symptoms are the sequelae of the head injury sustained in service, the May 2009 VA PTSD examiner's opinion that recent neurological findings may indicated that his pathology is more related to the psychological impact of war, and the July 2010 VA TBI examiner's opinion that she was unable to determine which emotional/behavioral signs are part of a co-morbid mental disorder and which represent residuals of TBI, would be helpful. Other evidence in the record such as the February 2010 hearing transcript and his VA and private medical records must also be considered. 4. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of the case. 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). These claims 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. 2013). _________________________________________________ MICHAEL A. HERMAN 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).