Citation Nr: 1633396 Decision Date: 08/23/16 Archive Date: 08/31/16 DOCKET NO. 12-03 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of traumatic brain injury (TBI). REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from October 1992 to April 2004. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from an October 2012 rating decision of the VA Regional Office (RO) in Newark, New Jersey that denied service connection for TBI residuals. By Board decision in May 2015, the Board denied service connection for TBI and the following issues that were also on appeal: service connection for irritable bowel syndrome, a compensable rating for post-traumatic headaches, a rating in excess of 10 percent for cervical strain, a rating in excess of 10 percent for left shoulder repair, a rating in excess of 20 percent for lumbar degenerative disc disease at L5-S1, a rating in excess of 10 percent for scar secondary to pilonidal cyst, a rating in excess of 20 percent for left ankle fracture, a compensable rating for bilateral shin splints, an effective earlier than July 9, 2009 for a total rating based on individual unemployability, and an effective date earlier than July 9, 2009 for dependents' educational benefits. The issues of entitlement to an increased rating for major depressive disorder and entitlement to service connection for right knee, left foot, and head scar disabilities were remanded for further development. In an April 2016 Order, the Court vacated the decision that denied entitlement to service connection for TBI and remanded the matter for readjudication consistent with instructions in the Parties' April 2016 Joint Motion for Partial Remand. It was noted that as the appellant did not contest the Board determinations made with respect to the other issues of appeal, they were dismissed. The claims that were remanded in May 2015 are not currently before the Court since there has been no final Board decision. Following review of the record, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The appellant asserts that he has residuals of in-service TBI for which service connection should be granted. In the April 2016 Joint Motion for Partial Remand, the Parties pointed out that in the Board's May 2015 decision that denied entitlement to service connection for TBI, the analysis of the evidence did not address a VA examiner's findings in August 2012 that the appellant exhibited "[o]bjective evidence on testing of mild impairment of memory attention, concentration, or executive functions resulting in mild functional impairment." The Parties agreed that a remand was necessary to allow the Board to address whether such symptoms might or might not be associated with TBI as a result of in-service head trauma. The Board also observes that, although the examiner stated that the Veteran had headaches attributable to TBI, she stated in her diagnosis that he did not have or had ever had TBI or any diagnosed residuals attributable to TBI. At the conclusion of the report, the examiner commented that "[it] is at least as likely as not that Veteran's symptoms of TBI are a result of head trauma sustained previously as described above." The report does not contain a description of head trauma by history, nor did the examiner refer to any specific instances of head trauma, although the record is replete with references to such, particularly in multiple VA examinations conducted between September and October 2004. The Board thus finds that not only is the VA examiner's report inconsistent, it is confusing. As such, it is found that the 2012 examination report is inadequate for adjudication purposes. The Board also observes that the 2012 Disability Benefits Questionnaire noted that neuropsychological testing might be needed to assess memory, attention, concentration and executive functions. The examiner indicated that Veteran had not been afforded any neuropsychological testing. The Board is of the opinion that such testing should be performed for a more accurate depiction of the appellant's neurologic status. After completion of the testing, the Veteran should be afforded an examination by a VA physiatrist, psychiatrist, neurosurgeon and/or neurologist for additional review of the record and a medical opinion. Additionally, the record indicates that the appellant has received continuing VA outpatient treatment over the years. However, the most recent VA clinical records date through November 2009, except for a hospital admission report in September 2011. As there is the potential existence of additional VA clinical data, these must be retrieved and associated with the other evidence on file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Therefore, VA clinical treatment records dating from December 2009 through the present should be requested and associated with the electronic record. Accordingly, the case is REMANDED for the following actions: 1. Retrieve VA outpatient records dating from December 2009 through the present and associate with the claims file. All attempts to obtain these records should be documented. 2. Schedule the Veteran for an examination by a VA physiatrist or psychiatrist or neurosurgeon or neurologist, who has not seen him previously, to determine whether the appellant has other residuals of TBI, including memory impairment, related to head injury in service. Access to Virtual VA/VBMS and a copy of this remand must be made available to the examining physician. The examiner must indicate whether the claims file is reviewed. The examination report must reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc., in a narrative format. All indicated tests and studies, including neuropsychological testing, must be performed, and clinical findings should be reported in detail and correlated to a specific diagnosis(es). Based on a thorough review of the evidence of record, to include the testing findings, the examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or better) the Veteran currently has any other residuals of TBI, excluding headaches, and specify all of the conditions in this regard. The examiner should provide full rationale for the opinions and conclusions reached in a narrative report. 3. After taking any further development deemed appropriate, re-adjudicate the issue. If the benefit is not granted, provide the appellant and his representative a supplemental statement of the case and afford them an opportunity to respond before the case is returned to the Board. 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. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ________________________________________ T. MAINELLI 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).