Citation Nr: 1800464 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 10-31 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for residuals of a traumatic brain injury (TBI). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD I. Warren, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1976 to April 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Manchester, New Hampshire RO has jurisdiction over the case. In November 2011, the Veteran testified before the undersigned via videoconference hearing. In November 2012, July 2014, November 2016 and August 2017, the Board remanded the claim for further development. The case has since been returned to the Board for appellate review. In the August 2017, decision, the Board granted service connection for a psychosis; but denied service connection for posttraumatic stress disorder. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, the directives of the August 2017 Remand have not been substantially complied with. Cf. Stegall v. West, 11 Vet. App. 268 (1998). 38 U.S.C. § 5103A (West 2012); 38 C.F.R. § 3.159 (2017). In August 2017, the Board remanded the claim to obtain a VA TBI examination to be conducted by a medical professional other than the examiner who provided the Veteran's previous March 2015 and May 2017 opinions. To date, a VA TBI examination has not been conducted. The Board is required to remand the appeal. Stegall. Accordingly, the case is REMANDED for the following action: 1. If the Veteran is available, schedule him for a VA TBI examination by a medical professional other than the examiner who provided the March 2015 and May 2017 opinions. The AOJ should document all attempts to contact the Veteran or his representative to schedule the examination. If the Veteran is ultimately unable to attend an examination, a competent medical professional should review the file and provide the requested opinion to the extent possible. The record and a copy of this Remand must be reviewed by the examiner. The examiner should answer the following questions: a) Does the Veteran currently have residuals of a TBI or head trauma? Address the May 2009 VA examination report's notation of impaired motor functioning that "may be the result of one or both of his remote head injuries (both of which qualify as 'mild TBI')." b) If so, is it at least as likely as not (a 50 percent or higher probability) that residuals of a TBI or head trauma were caused by an injury in service, to include his reported fall down a flight of stairs, and in-service assault? The examiner should consider the Veteran's statements, including his testimony regarding the onset of his TBI symptoms in service, as well as his in-service reports of periods of unconsciousness and fainting spells. If the examiner rejects the Veteran's lay statements, the examiner must provide reasons for doing so, and lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. If the examiner is unable to provide any requested opinion without resorting to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary to render an opinion. 2. If any benefit sought on appeal is not granted, issue a supplemental statement of the case. Then, return the appeal 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. 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. §§ 5109B, 7112 (West 2012). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2012), 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) (2017).