Citation Nr: 1614384 Decision Date: 04/08/16 Archive Date: 04/25/16 DOCKET NO. 07-25 171 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), a dysthymic disorder, chronic major depression, and as due to a traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, attended an initial period of active duty for training (ACDUTRA) in the Army Reserves National Guard from February 1982 to July 13, 1982. She thereafter served periods of ACDUTRA and inactive duty for training (INACDUTRA) in the North Carolina Army National Guard until December 1989. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating determination by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. In a November 2008 decision, the Board denied the Veteran's appeal for service connection for PTSD. The Veteran appealed the November 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court) and in a March 2010 memorandum decision, the Court vacated the Board's November 2008 decision and remanded the case back to the Board for further development. In January 2011, August 2011, and August 2012, the Board remanded this claim for additional development. The appeal was returned to the Board and in May 2013 it was denied again. The Veteran appealed the Board's decision to the Court which, in a September 2014 Memorandum Decision, vacated the May 2013 decision and again remanded the case to the Board for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Consideration of TBI In its Memorandum Decision, the Court observed that the issue of entitlement to service connection for residuals of a TBI was implicitly raised by the record. While both the Board and the VA Appeals Management Center (AMC) have treated the matter as on appeal, it is important that "the Board and the AMC must continue to consider whether the appellant has a psychiatric disorder, to include residuals of a TBI, related to a period of ACDUTRA or INACDUTRA." See Memorandum Decision, pg 8. Stegall & VA Examination In its August 2012 remand, the Board ordered both neurological and mental health examinations in order to help assess whether she has residuals of a TBI and to ascertain an opinion as to the nature and etiology of any current psychiatric disorder. The Court held in its September 2014 Memorandum Decision that VA did not substantially comply with the Board's remand orders insofar as the nexus opinion provided was unsupported and inadequate. Thus, a new examination must be ordered, and a new opinion provided, in order to comply with the Board's August 2012 orders. Stegall v. West, 11 Vet.App. 268, 271 (1998). Supplemental Statement of the Case In its May 2013 decision, the Board had found that additional evidence submitted by the Veteran since the most recent prior adjudication in a January 2013 Supplemental Statement of the Case (SSOC), was not pertinent to the matter on appeal. The lack of a waiver of initial AOJ consideration of such evidence was accordingly found not to necessitate that the entire claim be readjudicated by the AOJ prior to the Board's consideration of the appeal. The Court held that the Board had erred in arriving at this conclusion. Thus, on remand, the entire claims file must be reviewed and a SSOC issued based on all evidence of record prior to returning the appeal to the Board. Accordingly, the case is REMANDED for the following action: 1. Scheduled the Veteran for a VA neurological examination to assess whether she has residuals of a TBI, to include as sustained in ACDUTRA or INACDUTRA. The relevant documents from the claims folder should be provided to the examiner and should be reviewed by the examiner in connection with the examination. The examination must be performed by an examiner with appropriate expertise, such as a neurologist. Any testing deemed necessary by the examiner should be performed. The examiner should specifically note all evidence regarding the purported incidents that the Veteran claims to have occurred during a period of ACDUTRA or INACDUTRA, specifically the July 1982 diving accident and the April 1984 "push ball" incident. The VA examiner should note the service treatment records, to include the March 1984 National Guard medical examination report, the April 1984 Army Community Hospital treatment record regarding treatment for an injury incurred during a pushball game, and the January 1987 Statement in Lieu of Current Medical Examinations. After all necessary testing, the examiner should report whether the Veteran currently has residuals of a TBI. If residuals of a TBI are diagnosed, the examiner should address the following: If residuals of TBI are found, is at least as likely as not (50 percent probability or greater) that the residuals of a TBI are related to a period of ACDUTRA or INACDUTRA, to include potentially the July 1982 diving accident and the April 1984 "push ball" incident? In offering this opinion, please specifically discuss the reported April 1993 automobile accidents that include hitting the head on a windshield and sustaining a concussion. A rationale should be provided, to include, if applicable, an explanation of how the clinical findings support a diagnosis of TBI. 2. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The RO/AMC is reminded that the matter on appeal expressly includes entitlement to service connection for PTSD, a dysthymic disorder, chronic major depression, AND residuals of a TBI. (CONTINUED ON NEXT PAGE) 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 2014). _________________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).