Citation Nr: 1808285 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-03 524 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California THE ISSUE Entitlement to service connection for traumatic brain injury (TBI) residuals other than migraine headaches and chronic tension headaches. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD E. Blowers, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from July 1991 to August 1991, from July 2003 to October 2003, from May 2005 to September 2006, and from April 2007 to September 2008. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the RO in Portland, Oregon. The case was first before the Board in March 2017, where the Board, in pertinent part, remanded the issue on appeal to obtain outstanding records. While cognizant of its responsibilities under Stegall v. West, 11 Vet. App. 268 (1998), as the instant decision must once again remand the issue of service connection for TBI residuals, the Board need not address Remand compliance at this time. In the March 2017 decision, the Board also remanded the issue of an effective date prior to December 22, 2009 for the grant of a 30 percent disability rating for migraine headaches and chronic tension headaches. While on remand, in a November 2017 rating decision, the Appeals Management Center (AMC) granted an earlier effective date of October 1, 2008, which was the day following the Veteran's separation from service on September 30, 2008. As October 1, 2008 is the earliest effective date available at law, this was a complete grant of benefits as to this issue, and the question of an earlier effective date for the service-connected headaches is no longer before the Board. See 38 C.F.R. § 3.400(b)(2)(i) (2017) (effective date will be day following separation from active service or date entitlement arose if claim is received within one year after separation from service). In the February 2012 substantive appeal, via a VA Form 9, the Veteran requested a hearing before the Board as to the issue on appeal. Subsequently, in January 2016, VA received a written request from the Veteran asking that the hearing request be withdrawn and that the case be forwarded to the Board for a decision. As such, the Board finds there is no hearing request pending at this time as the previous request has been withdrawn. 38 C.F.R. § 20.702(e) (2017). The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr, 21 Vet. App. at 312. The Veteran is seeking service connection for TBI residuals. The Veteran is service connected for both posttraumatic stress disorder (PTSD) and migraine and chronic tension headaches. PTSD and TBI residuals often share the same symptomatology. A VA TBI examination was conducted in January 2010. At the conclusion of the examination, the VA examiner diagnosed migraine headaches, which the VA examiner attributed to a TBI. While no other TBI residuals were specifically diagnosed, upon examination the VA examiner noted symptoms of mild difficulty with disequilibrium, insomnia, fatigue, mild depression, mild memory impairment, and hypervigilance. Due to the overlap in symptoms between TBI residuals and PTSD, the Board is unable to state with certainty whether the aforementioned symptoms are completely attributable to the service-connected PTSD and/or headaches. As such, the Board finds remand warranted for a new VA examination to attempt to differentiate the Veteran's PTSD symptoms, headache symptoms, and TBI (if any) symptoms. VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). On remand the AOJ should obtain any outstanding VA treatment records for the period from January 2010. During the previous remand, VA attempted to obtain the Salem Vet Center treatment (medical) records. Per a June 2017 Report of General Information, VA was informed that the Vet Center would not provide the outstanding treatment records without a properly executed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs. The Veteran was subsequently informed of this in a June 2017 letter; however, no VA Form 21-4142 was ever received from the Veteran. As remand is again necessary in the instant matter, the AOJ should again request that the Veteran submit the appropriate release to allow VA to obtain the outstanding Vet Center treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request submission of a VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, authorizing the AOJ to obtain outstanding treatment records from the Salem Vet Center. Further, the AOJ should request information as to any other outstanding private treatment (medical) records concerning treatment for claimed TBI residuals. Upon receipt of the requested information and the appropriate releases, the AOJ should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of any TBI residuals, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e) (2017). 2. Associate with the record all VA treatment records pertaining to the treatment of any TBI residuals, not already of record, for the period from January 2010. 3. Schedule a VA TBI examination. The relevant documents in the record should be made available to the examiner, who should indicate on the examination report that he/she has reviewed the documents in conjunction with the examination. A detailed history of relevant symptoms should be obtained from the Veteran. All indicated studies should be performed. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The VA examiners should provide the following opinions: A) Conduct a thorough examination of the Veteran and identify all symptoms that could potentially be attributed to an in-service TBI. B) For each symptom identified above, opine as to whether said symptom is due to the Veteran's service-connected PTSD and/or the service-connected migraine and chronic tension headaches. C) For each symptom identified above that cannot be attributed to the Veteran's service-connected PTSD and/or the service-connected migraine and chronic tension headaches, is it at least as likely as not (50 percent or higher degree of probability) that the symptom is due to an in-service TBI? 4. Then, readjudicate the issue of service connection for TBI residuals other than migraine headaches and chronic tension headaches. If any benefit sought on appeal remains denied, the Veteran and representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The Veteran has 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).