Citation Nr: 1800936 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 11-26 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana 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 Veteran ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from April 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In September 2012, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing has been associated with the record. This claim was remanded in November 2013 and January 2017 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 The Veteran's representative submitted a November 2017 brief arguing the April 2017 VA addendum opinion does not comply with the Board's January 2017 remand directives. The Board's January 2017 remand directives instructed the examiner to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any residuals of TBI, including, but not limited to, headaches and balance problems. The directives required the examiner address the Veteran's statements regarding headaches, balance problems, and difficulty pronouncing words since his in-service injury. The directives required the examiner perform a MRI or explain why a MRI was not indicated. The April 2017 VA examination noted the Veteran's reported balance problems, headaches, and memory problems in the history portion of the examination report, but did not provide rationale supporting his opinion that the Veteran does not have residuals of a traumatic brain injury that is at least as likely as not incurred in or caused by head injury during service. No rationale or discussion of the etiology of the Veteran's balance problems or headaches was provided. An MRI was not performed, nor explanation of why it was unnecessary. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by a physician with appropriate expertise, preferably a neurologist, to determine whether the Veteran has residuals of an in-service traumatic brain injury (TBI). The Veteran's claims file must be made available and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must either order an MRI or indicate why an MRI was not ordered. The examiner should then opine: Is it at least as likely as not (50 percent probability or greater) that the Veteran has any residuals of a TBI, including, but not limited to, headaches and balance problems. In providing this opinion, the examiner must address the Veteran's lay statements regarding his headaches, balance problems, and difficulty pronouncing words since his in-service injury. The examiner must provide a detailed rationale for any opinion expressed. If an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Upon completion of the opinion, the AOJ should review the examiner's report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2 (2017). 3. Upon completion of the above actions, readjudicate the claims. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Thereafter, this issue should be returned to the Board for further appellate review, if in order. 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. §§ 5109B, 7112 (2012). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).