Citation Nr: 18152008 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-51 577 DATE: November 20, 2018 REMANDED Entitlement to service connection for traumatic brain injury (TBI), to include memory loss, to include as secondary to service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1977 to June 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran’s original claim is for entitlement to service connection for memory loss. However, the Veteran has stated her memory loss resulted from a fall from the back of a truck onto a hard concrete surface, resulting in head trauma, during active service. The Veteran, as a layperson, is not competent to distinguish between competing diagnoses, and so a claim of service connection for one is considered a claim for all. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Veteran’s original claim for a memory loss condition has been expanded to include possible traumatic brain injury, and the claim has been recharacterized as such on the title page. This appeal originally contained one additional issue: entitlement to service connection for an acquired psychiatric disorder, to include PTSD and depression. In an April 2015 rating decision, the RO granted service connection for another trauma and stressor-related disorder, effective from January 31, 2007. As such, the issue is no longer in appellate status before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Entitlement to service connection for traumatic brain injury (TBI), to include memory loss, to include as secondary to service-connected disability is remanded. The Veteran is claiming entitlement to service connection for a TBI with memory loss, which she asserts resulted from a February 1980 fall from the back of a truck onto a hard concrete surface, during active service. She also asserts she has had problems with memory loss since that incident. The Veteran has also asserted that her memory loss, to possibly include dementia, could result from the medications she takes from other service-connected disabilities. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States Court of Appeals for Veterans Claims (Court) held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran has never had a VA examination and opinion for service connection for her claimed TBI with memory loss. The matter is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that she identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s TBI with memory loss, to include the possible effects of medication from other service-connected disability. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should answer the following question: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran has a disability characterized by memory loss as a result of TBI or otherwise, and if so: Whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s TBI with memory loss is related to her active duty service, or are otherwise related to any in-service disease, event, or injury? If not, is it at least as likely as not (probability of fifty percent or greater) that the TBI with memory loss was caused by any other service-connected disability, to include medications taken for those disabilities? If other service-connected disability did not cause the TBI with memory loss, is it at least as likely as not (probability of fifty percent or greater) that TBI with memory loss was aggravated (an increase in severity) by other service-connected disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the acquired psychiatric disorder by the service connected disability. Attention is invited to the February 1980 service treatment record where the Veteran was treated for a fall from a truck and multiple resulting injuries, to include bleeding from the scalp. A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions 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). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. 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). (Continued on the next page)   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). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel