Citation Nr: 1637677 Decision Date: 09/26/16 Archive Date: 10/07/16 DOCKET NO. 09-00 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD C. Howell, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1972 to April 1973. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Togus, Maine. The appeal was certified by the RO in Detroit, Michigan (Agency of Original Jurisdiction (AOJ)). In preparing to decide the issues on appeal, the Board has reviewed the contents of the Veteran's electronic claims file, including the Virtual VA and Veterans Benefit Management System (VBMS). Some relevant treatment records are located in Virtual VA. All records are now in these electronic systems. The Veteran testified at a September 2009 Travel Board hearing before the undersigned. A transcript of those proceedings is associated with the Veteran's VBMS file. In April 2012, the Board remanded the claim for further development. The appeal has been returned to the Board for further appellate consideration. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action, on his part, is required. REMAND The Veteran seeks entitlement to service connection for TBI. In April 2012, the Board remanded the claim to obtain a VA examination concerning the nature and etiology of the Veteran's claimed TBI. During the April 2012 VA examination, the examiner diagnosed the Veteran with bipolar disorder; alcohol dependence in remission; and polysubstance abuse in remission including personality disorder with mixed features. Initially, the examiner indicated that the Veteran had no traumatic brain injuries or residuals from such injuries. However, the examiner later indicated that the Veteran did have residuals of TBI, noting that it is at least as likely as not that the Veteran meets the criteria for TBI. The examiner also noted several instances of head injuries. The examiner indicated it was possible to differentiate the symptoms related to each mental disorder diagnosed, but proceeded to simply list the numerous head injuries in the section for differentiating symptoms. The examiner also indicated that it was possible to differentiate what portion of occupational and social impairment was caused by TBI, but again simply listed the Veteran's numerous head injuries. Finally, after noting several head injuries, the examiner indicated that it is only speculation that any head injury is solely due to any incident in the military. The examiner did not address the November 2007 VA treatment record indicating the Veteran had organic affective syndrome secondary to head trauma. The Board finds the opinion inadequate to determine whether the residuals of TBI are etiologically related to service. Upon remand, VA must obtain an addendum opinion clarifying these issues. The examiner is requested to discuss the criteria for diagnosing TBI, the type of in-service TBI claimed by the Veteran, and whether the lay and medical evidence in service and after service supports a medical determination that the TBI incurred by the Veteran in service resulted in current TBI residuals. This opinion must address the November 2007 VA diagnosis of organic affective syndrome secondary to head trauma, the Veteran's description of injury and resultant functioning, and the lay description of events in service in light of the clinic findings. Notably, the Veteran has reported that he was hit over the head with a tire iron during an attempted robbery in service. See, e.g., November 2003 VA Treatment Records. While the Board has previously determined the Veteran is not a reliable historian, the claims file also contains a March 1973 lay statement that, in January 1973, the Veteran "got rolled spending most of the night in a junkyard ditch," and was subsequently treated for a broken nose. January 1973 service treatment records reflect that he was treated for a broken nose and a knot on the base of his neck. Notably, the service personnel records note a history of behavioral problems. The addendum opinion must address this service treatment record in light of the entire evidentiary record. Finally, the Board instructed VA to attempt to obtain any treatment records from Camp Hansen in Okinawa, Japan, from 1972 and 1973. VA requested these records, and received a response that no search was possible because an allegation was needed and a complete unit at the time of the allegation was needed. The Veteran's military records reflect that in January 1973, when the Veteran contends he was treated for a head injury at Camp Hansen, he served in the First Battalion, Fourth Marines, Third Marine Division, Company D. See March 1973 Military Records. Upon remand, VA should again attempt to obtain these records. Any additional outstanding, relevant treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding, relevant VA treatment records. 2. Attempt to obtain any treatment records from Camp Hansen in Okinawa, Japan, from January 1973, through official sources. In the request for treatment records, include the information that the Veteran claims treatment for a head injury, and that his unit was the First Battalion, Fourth Marines, Third Marine Division, Company D. All attempts to obtain records should be documented in the claims folder. 3. After any additional documents are obtained and associated with the electronic claims file, obtain a VA medical opinion from an examiner other than the April 2012 VA examiner, or another appropriate examiner, concerning the nature and etiology of any diagnosed residuals of TBI. Following a complete review of the claims file, the reviewing professional is requested to provide the following opinions: Is it at least as likely as not (50 percent probability or greater) that the Veteran has residuals of any TBI incurred during service? The examiner is requested to discuss the criteria for diagnosing TBI, the type of in-service TBI claimed by the Veteran, and whether the lay and medical evidence in service and after service supports a medical determination that the TBI incurred by the Veteran in service resulted in current TBI residuals. This opinion must address the November 2007 VA diagnosis of organic affective syndrome secondary to head trauma, the Veteran's description of injury and resultant functioning, and the lay description of events in service in light of the clinic findings. In providing this opinion, the examiner is requested to specifically consider the Veteran's report that he was hit over the head with a tire iron during an attempted robbery in service, a March 1973 lay statement (located in service personnel records) that, in January 1973, the Veteran "got rolled spending most of the night in a junkyard ditch," and was subsequently treated for a broken nose, January 1973 service treatment records reflecting that he was treated for a broken nose and a knot on the base of his neck, and the service personnel records noting a history of behavioral problems. A complete rationale must be provided for these opinions. If the examiner opines that any question cannot be answered without resorting to speculation, then a detailed medical explanation as to why causation is unknowable must be provided. 4. After completing the actions detailed above, readjudicate the claim. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ 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).