Citation Nr: 1801018 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-28 136A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for headaches due to traumatic brain injury (TBI). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 2000 to June 2004 which included 11 months of service in the Persian Gulf. He was awarded the Combat Infantryman Badge. This matter came to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was filed in July 2010, a statement of the case was issued in August 2013, and a substantive appeal was received in October 2013. In a May 2014 rating decision, service connection was established for bilateral knee, degenerative joint disease, and separate 10 percent ratings were assigned effective May 28, 2009. This constitutes a full grant with regard to the issues sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997); AB v. Brown, 6 Vet. App. 35 (1993). Neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period. Thus, these issues are not currently in appellate status. The Veteran testified at a Board hearing in October 2017; the transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND A June 2009 VA treatment record, a TBI screening, reflects the Veteran's report that he experienced a blast or explosion improvised explosive device (IED), rocket propelled grenade (RPG), land mine and grenade during service. He reported being dazed, confused or "seeing stars" afterwards. He reported headaches within the past week and a consult was ordered for TBI referral. 08/07/2013 Legacy Content Manager Documents (LCMD), CAPRI at 40-41. A June 2009 VA mental health evaluation reflects an Axis I diagnosis of PTSD, major depressive disorder (MDD), panic disorder with agoraphobia, and alcohol abuse in early remission, and an Axis III diagnosis of migraine headaches. Id. at 38. In June 2009, the Veteran underwent a VA examination wherein PTSD was diagnosed. The examiner noted that he has problems concentrating and has questionable TBI. The examiner also provided Axis III diagnoses of headaches and ulcers. 06/18/2009 VA Examination at 9, 11. In July 2009, the Veteran underwent a VA TBI evaluation. He reported that while in Iraq he was in lots of battle but no injury. One possible TBI was when his unit was trying to blow up some old ammunition. He stated that he probably was in a blast zone. He reported that he started to have a headache 10 days later. The headaches had been worse over the years and he has to take Diclofenac every day. A neurological examination was normal and the assessment was PTSD. He was to undergo an MRI of the head; however, such is not of record. 08/07/2013 LCMD at 20-21. In October 2011, the Veteran underwent a VA examination to assess the severity of his PTSD. The examiner checked the 'No' box with regard with whether he has a TBI, but then noted that the Veteran was screened for a TBI in 2009 and was "judged likely." 10/14/2011 VA Examination at 4. At the Board hearing, the Veteran described an incident in which there was an explosion at an area which was close to a classroom in which he was sitting, and the explosion blew in the glass and knocked him over. He felt "fuzzy-headed" afterwards. 10/13/2017 Hearing Transcript at 3. As the record is not clear whether the Veteran has residuals of TBI and an opinion has not been proffered regarding the etiology of his headaches, the Veteran should be afforded a VA examination to assess whether he has residuals of TBI, to include headaches, as a result of his active service. The record contains VA outpatient treatment records dated from June 9, 2009 to June 7, 2013. 08/07/2013 LCMD, CAPRI. The June 9 record, however, reflects that the Veteran is a current patient, thus outstanding records must be obtained for the period prior to June 9, 2009, and updated treatment records must be obtained for the period from June 8, 2013. Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims folder outstanding and updated VA treatment records for the period prior to June 9, 2009, and from June 8, 2013. 2. After completing #1, schedule the Veteran for a comprehensive VA examination with a physician with appropriate expertise (physiatrist, psychiatrist, neurologist, or neurosurgeon) to determine the nature and etiology of his claimed headaches due to TBI. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examiner should provide opinions as to the following: a) Does the Veteran have residuals of a TBI? b) If so, are residuals of a TBI at least as likely as not (i.e., a likelihood of 50 percent or more) due to service? c) Are the Veteran's headaches at least as likely as not (i.e., a likelihood of 50 percent or more) due to service, to include a TBI? A comprehensive rationale for all opinions expressed must be provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. 3. After completion of the above, review the relevant evidence of record and readjudicate the service connection issue. If the benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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 (2012). _________________________________________________ Paul Sorisio 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 the appeal. 38 C.F.R. § 20.1100(b) (2017).