Citation Nr: 18143518 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-30 483 DATE: October 19, 2018 REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Entitlement to service connection for service connection for an eye disability is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for insomnia is remanded. Entitlement to a compensable evaluation for migraines is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to February 2008, January 2009 to April 2009, and August 2012 to July 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by the Department of Veterans Affairs (VA). The Board notes a July 2014 rating decision denying service connection for a TBI and an eye disability (characterized as for accommodative and convergence insufficiency by the Agency of Original Jurisdiction (AOJ)) did not become final and thus those issues are not considered requests to reopen previously denied claims. Specifically, the July 2014 rating decision denied service connection for a TBI on the basis that the Veteran was not diagnosed with a TBI. No VA treatment records were of record at that time. VA treatment records received in November 2014 indicate the Veteran had a diagnosis of TBI. See September 2013 VA treatment records. Thus, new and material evidence was received within one year of the July 2014 decision, and the decision remained pending. See 38 C.F.R. § 3.156(b). In regard to the issue of entitlement to service connection for an eye disability, new and material evidence relating to the Veteran’s claim was also received within one year of the July 2014 rating decision. Specifically, this issue was denied on the basis that the Veteran’s disabilities were merely symptoms with no underlying diagnosis. A June 2015 VA examiner opined that these symptoms are related to the Veteran’s traumatic brain injury in service; thus, an underlying diagnosis of TBI was provided. See June 2015 VA examination. Competent medical evidence indicating such a relation was not previously of record. Accordingly, this issue also remained pending and the July 2014 decision was not final. See 38 C.F.R. § 3.156(b). 1. Entitlement to service connection for TBI. During an April 2014 VA examination, the Veteran reported altered consciousness during his TBI event in service, but not loss of consciousness. The examiner opined the Veteran did not have a TBI because he did not experience loss of consciousness at the time of the event. See April 2014 VA examination. VA publicly provides information about TBI and has stated that “[a]ny alteration in mental state at the time of the injury” may indicate a TBI, and that loss of consciousness is merely a sufficient, rather than necessary, element of TBI. See Veterans Health Initiative, Traumatic Brain Injury, at 5, http://www.publichealth.va.gov/docs/vhi/traumatic-brain-injury-vhi.pdf (last visited October 15, 2018). Thus, the examiner’s reliance on the absence of loss of conscious immediately following the event renders the opinion inadequate, and remand for a new examination is necessary. 2. Entitlement to service connection for an eye disability. This matter is inextricably intertwined with the Veteran’s issue of entitlement to service connection for a TBI; accordingly, it must be remanded as well. 3. Entitlement to service connection for obstructive sleep apnea. VA treatment records reflect the Veteran is diagnosed with moderate sleep apnea. See May 2015 VA treatment records (discussing December 2014 sleep study). The Veteran stated that his snoring started after an in-service accident when a bullet detonated near his face, and was not a problem prior to that accident. See May 2016 substantive appeal. Because there are medical questions outstanding, remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 4. Entitlement to service connection for insomnia. The Veteran has been assessed as having insomnia, but it is largely associated with a diagnosis of an anxiety or panic disorder. See, e.g., May 2016 VA treatment records. The Veteran stated that his sleeping problems began after his in-service accident when a bullet detonated near his face. See May 2016 substantive appeal. Because there are medical questions remaining as to the nature of the Veteran’s insomnia, remand for a VA examination is necessary. See McLendon, 20 Vet. App. at 81. 5. Entitlement to a compensable evaluation for migraines. A May 2015 VA examiner opined the Veteran did not have prostrating attacks due to his migraines. See May 2015 VA examination. Since that time, the Veteran indicated that his migraines are debilitating and his cognitive ability is hindered due to his migraines. See May 2015 substantive appeal. These statements are in conflict with the May 2015 VA examiner’s opinion. Thus, to remedy inconsistencies in the record, a new examination is necessary. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from April 2014 to May 2015, and August 2016 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any TBI. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran has a TBI from his military service due to the incident when a bullet detonated near his face? Please explain why. The examiner may not rely on the absence of loss of consciousness immediately after the Veteran’s event in service. The examiner must rely on the criteria VA has provided as to what constitutes a TBI, to include the presence of an altered mental state immediately after the event. 3. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his obstructive sleep apnea. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Is it at least as likely as not (50% or greater probability) that the Veteran’s obstructive sleep apnea was either incurred in or otherwise related to his military service? Please explain why. The examiner must discuss the Veteran’s statements that his snoring began during service after his accident when a bullet detonated near his face. 4. After the development in the first instruction is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his insomnia. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify whether the Veteran has had insomnia at any time during the appeal period (from February 2015). If the Veteran’s sleeping difficulty is merely a symptom of another disability or disorder, please explain why. (b.) If the Veteran is diagnosed with insomnia, is it at least as likely as not (50% or greater probability) that it was either incurred in or otherwise related to his military service? Please explain why. The examiner must discuss the Veteran’s statements that his sleeping difficulty began during service after his accident when a bullet detonated near his face. 5. After the development in the first instruction is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected migraines. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. 6. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel