Citation Nr: 18150745 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-35 805 DATE: November 15, 2018 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include migraine headaches (claimed as head trauma, vertigo, and floaters) is remanded. REASONS FOR REMAND The Veteran served in the U.S. Army from October 1985 to March 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board reflects that although the Agency of Original Jurisdiction (AOJ) initially separated the headache and TBI claims in this case, the Board reflects that headaches are a known complication of head injuries/TBI’s, as noted in 38 C.F.R. § 4.124a, Diagnostic Code 8045. Accordingly, the Board finds that the scope of the Veteran’s TBI claim encompasses a claim for migraine headaches; the Board has therefore recharacterized the issue as above, in light of the scope of the Veteran’s claim in this case. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends that he sustained a TBI in service when he suffered a concussion from hitting his head multiple times within the span of a year during active duty. The Veteran’s service treatment records document that he complained of trauma to the back of his head and face and was treated for a laceration of his upper lip, in September 1988. He was noted to have slipped and fallen on ice in January 1990. Finally, In September 1991, the Veteran reported that a spring-loaded tank hatch hit him on the head, causing him to blackout. The Veteran said he experienced some nasal bleeding, dizziness, headaches, and nausea, though these symptoms resolved themselves within a few hours. In his February 1992 separation examination, the Veteran reported that he had experienced head trauma. The Board, therefore, acknowledges that the Veteran is shown to have a head injury and headaches during military service. Likewise, the Board acknowledges that the Veteran is shown to have treatment for his headaches after military service, as noted in his VA treatment record. At a February 2011 private examination with a psychological assessment, the Veteran reported that he had frequent headaches and disturbed sleep, but the examiner noted that there was no determination whether the headaches were from his head injuries, stress, or other causes. At a September 2011 private neurological examination, the Veteran reported he had been experiencing daily headaches for the previous eight months, and the examiner noted that the headaches were aggravated by stress and problems with sleep. The Veteran underwent an August 2012 VA examination of his TBI and headaches, during which the examiner diagnosed the Veteran with migraine headaches. The examiner additionally acknowledged the head injuries noted in the Veteran’s service treatment records. After cognitive impairment examination, the examiner ultimately opined that, although the Veteran sustained a head injury during service, the “head injury did not involve a [TBI]. Further review of the [claims] file does not support a TBI having occurred while on active duty.” Furthermore, with respect to the noted headache disorder, the examiner opined that although there was a head injury during service, as that head injury did not involve a TBI and therefore the headaches were not likely sequalae of the head injury during service. The Board finds that the August 2012 VA examiner’s findings and conclusions are inadequate, internally inconsistent, and circular. Specifically, the Board reflects that the Veteran had a head injury during military service; the question in this case is whether those head injuries during military service have resulted in any residuals, including headaches. Furthermore, with respect to the headaches, it appears that the Veteran’s 1991 head injury did, in fact, result in headaches for a short period thereafter; the examiner does not explain this fact with regards to his finding of sequalae. Finally, the private examiners’ opinions in this case appear to indicate that the Veteran’s headaches were aggravated by stress; the Board reflects that there is no rationale for that finding, although the Veteran is service connected for PTSD, and therefore secondary service connection has been raised in this case. The August 2012 examiner did not address this aspect of the case. Accordingly, the Board finds that a remand is necessary in this case in order to obtain another VA examination that adequately addresses whether the Veteran has any residuals of a TBI, including headaches in this case, and if so, whether such is related to service or secondary to a service-connected disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise). On remand, the Board also finds that any outstanding private and VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from Atlanta VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his residuals of TBI/headaches, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 3. Ensure that the Veteran is scheduled for a VA examination with an appropriate TBI specialist in order to determine whether the Veteran’s claimed residuals of a TBI, including any headache disorder, is related to his military service or a service-connected disability. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner must specifically state whether the Veteran has any residuals of a TBI. In so discussing, the examiner should also address whether his claimed headaches are a separate and distinct disorder or whether such are physical complications of a TBI. Then, for residuals of a TBI and/or separate and distinct headache disorder that is found not to be a residual of a TBI in service, the examiner must opine whether it is at least as likely as not (50 percent or greater probability), began in or are otherwise etiologically related to his period of active service, to include the noted head injuries therein. Next, the examiner should also opine whether any separate and distinct headache disorder at least as likely as not is (a) caused by; or, (b) aggravated (i.e., chronically worsened) by his service-connected psychiatric disability. The examiner should specifically address the article submitted by the Veteran in February 2018 in his/her discussion. The examiner is reminded that he or she must address both prongs (a) and (b) above. The examiner must consider the Veteran’s lay statements regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel