Citation Nr: 18158448 Decision Date: 12/17/18 Archive Date: 12/14/18 DOCKET NO. 16-32 835 DATE: December 17, 2018 REMANDED Entitlement to service connection for traumatic brain injury (TBI). Entitlement to service connection for migraine headaches, secondary to TBI. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from August 2000 to December 2000, October 2001 to October 2002, August 2003 to July 2004, October 2004 to December 2005, and from July 2007 to April 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision dated January 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. 1. Entitlement to service connection for TBI. 2. Entitlement to service connection for migraine headaches, secondary to TBI. A remand is necessary to provide the Veteran new with VA examinations in connection with his claims for service connection. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran’s claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also of significance is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999). A VA examiner must consider all pertinent medical and lay evidence relevant to the Veteran’s claim. 38 C.F.R. § 3.303(a); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2006). When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination and/or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Here, the Veteran asserts that while he was deployed to Iraq from July 2007 to April 2008, multiple improvised explosive devices (IED) exploded near the vehicle he was in, causing TBI and residual headaches. The Veteran’s service treatment records (STRs) include a March 2008 periodic health assessment form on which the Veteran endorsed “Near IED blasts” and falling from a step while exiting an arms storage room. See Annual Periodic Health Assessment dated March 20, 2008. Additionally, a December 2007 demobilization TBI questionnaire shows that the Veteran reported a fall. See TBI/Minimal TBI Demobilizing questionnaire dated “December 2007.” Post-service VA treatment records reflect a positive TBI screening in September 2012, and in December 2012, VA developed a care and rehabilitation plan for treatment of TBI. A VA neuropsychology consultation in January 2013 noted that the Veteran reported forgetfulness, weakened concentration, migraines, anger and irritability. The neuropsychologist diagnosed cognitive symptoms exacerbated by medical and emotional issues, and a history of concussion without loss of consciousness, and ocular headaches. See VA Consult Report/Psychological Testing dated January 15, 2013. An October 2014 VA TBI examination report reflects that the Veteran reported blasts from IEDs hit the vehicle he was in while deployed to Iraq in 2007-2008, and that he felt concussions from the blasts inside the vehicle. The examiner noted symptoms that could be residuals of a TBI, specifically problems with gait, coordination, balance, and headaches. However, the examiner opined that the Veteran had never had a TBI, citing the history of the injury provided by the Veteran and the absence of evidence of loss of unconsciousness or concussion. See VA examination report dated October 17, 2014 at pgs. 1, 4. During the October 2014 VA headaches examination, the Veteran was diagnosed with migraine headaches, and the examiner opined that the Veteran’s migraines are related to service. However, in a December 2014 addendum opinion, a different VA examiner opined that it is less likely than not that the Veteran’s headaches are related to service on the basis that the Veteran’s service entrance and exit examinations are silent for headaches, the first post-service evidence of headaches appears in 2012, and that medical knowledge does not support the notion that migraine headaches would develop so long after an in-service TBI. See VA addendum medical opinion dated December 31, 2014. Neither the October 2014 VA examiner nor the December 2014 VA examiner acknowledge or discuss the STRs that reflect a possible head injury or TBI during service, or the post-service VA treatment records that reflect a positive VA TBI screening and that a VA neuropsychologist attributes the Veteran’s cognitive symptoms to a concussion without loss of consciousness, and ocular headaches. The mere absence of evidence does not equate to unfavorable evidence. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (cautioning that negative evidence, meaning actual evidence weighing against a party, must not be equated with the absence of substantive evidence). Moreover, the failure of the VA examiners to acknowledge and discuss relevant STRs and post-service treatment records render the examinations inadequate for VA adjudication purposes. Bloom; Jandreau, supra. Accordingly, the Veteran’s claim for service connection for TBI must be remanded and the Veteran afforded new VA examinations. In light of the remand of the Veteran’s claim for service connection for TBI, and recognizing that the Veteran is seeking service connection for migraine headaches, secondary to TBI, these matters are inextricably intertwined and as such, the Veteran’s migraine headaches claim must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for VA TBI and VA headaches examinations with an appropriately qualified examiner, if possible from an examiner other than the one who conducted the October 2014 VA examinations or the examiner who provided the December 2014 addendum opinion, to determine the nature and etiology of his claimed conditions. All indicated tests and studies should be accomplished and the findings then reported in detail. The complete claims file, including a copy of this remand, should be made available to the examiner. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Provide an opinion, with adequate rationale, as to whether it is at least as likely as not (a degree of probability of 50 percent or higher) that the Veteran experienced a TBI or a blast injury in service. **In making the determination, the examiner should consider and discuss the Veteran’s report of his claimed head injury when the vehicle he was in during deployment to Iraq was hit by the blast of several IED explosions as opposed to the Veteran being actually struck by the IED directly, as well as service records indicating a fall and possible head injury. Although the entire claims file should be reviewed, in rendering an opinion, the examiner is asked to discuss and reconcile the service treatment records and the Veteran’s description of events: See Annual Periodic Health Assessment dated March 20, 2008 (VBMS 11/03/2010 “STR - Medical” pg. 93 of 100); December 2007 TBI/Minimal TBI Demobilizing questionnaire dated “December 2007” (VBMS 11/03/2010 “STR – Medical” pg. 65 of 100); Statements in Support of Claim dated September 12, 2012, pgs. 1 and 4 (VBMS 09/24/2012 “VA 21-4138 Statement in Support of Claim” multiple pages); VA TBI Injury Screening dated September 26, 2012 (VBMS 03/15/2014 “CAPRI” at PDF pg. 42 of 45); VA Consult Report / Psychological Testing dated January 15, 2013 (VBMS 03/15/2014 “CAPRI” at PDF pgs. 21-23); Statements in Support of Claim dated August 8, 2015 (VBMS 08/13/2015 “VA 21-4138 Statement in Support of Claim”); Appeal to Board of Veterans’ Appeals received July 14, 2016 (VBMS 07/11/2016 “Form 9”). (b) If the examiner determines that the Veteran did sustain a TBI or blast injury in service, the examiner should list all residuals that have resulted due to the TBI, including (but not limited to), headaches, including migraines; impaired memory, and impaired balance. (c) Provide an opinion, with adequate rationale, as to whether the Veteran’s headaches are at least as likely as not (50 percent or higher degree of probability) is related to any TBI or blast injury in service, or alternatively CAUSED or AGGRAVATED by, any TBI or blast injury and/or its residuals. A complete rationale for all opinions expressed should be included in the examination report. 3. Thereafter, readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brad Farrell, Associate Counsel