Citation Nr: 20002935 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 10-31 647 DATE: January 14, 2020 REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1976 to April 1980. This case initially came to the Board of Veterans’ Appeals (Board) from a September 2009 decision of the Agency of Original Jurisdiction (AOJ), which denied the Veteran’s claim for service-connected disability compensation for claimed residuals of an in-service traumatic brain injury (TBI). In November 2011, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed by the Board. A hearing transcript is of record. In August 2019, the Board sent a letter to the Veteran explaining to him that the person who presided at his hearing would no longer be able to decide his case and inviting him to participate in a new hearing. Because the Veteran did not respond to this letter, this appeal may proceed without a new hearing. In November 2012, July 2014, November 2016, August 2017, and January 2018, the Board remanded the claim for service connection for TBI for further development. An Informal Hearing Presentation, received from the Veteran’s representative in January 2019, includes the issue of service connection for post-traumatic stress disorder (PTSD). However, that issue is not before the Board. The Board denied the PTSD claim in August 2017. A Board decision becomes final when it is issued as of the date stamped on the decision, unless the appellant continues the appeal to the United States Court of Appeals for Veterans Claims or unless a motion for reconsideration is granted by the Board. 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. In this case, the Veteran has not appealed the denial of service connection for PTSD to the Court; nor has the Board granted a motion to reconsider the denial of his PTSD claim. Accordingly, service connection for TBI is the only remaining issue in this appeal. Entitlement to service connection for a traumatic brain injury (TBI) is remanded. Although the Board regrets the need for further delay, another remand is necessary to protect the Veteran’s due process right and ensure compliance with the Board’s prior remand instructions. When the Board remands an appeal, the claimant obtains a right to compliance with its remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To help decide the claim, the Board has remanded this case many times, attempting to obtain an adequate medical opinion on the nature and etiology of the Veteran’s claimed residuals of TBI. As the Board has explained in earlier remands, the opinions obtained in May 2009, June 2009, March 2015, and May 2017 were inadequate. In August 2017 and January 2018, the Board issued additional remand orders seeking a new TBI examination and medical opinion. But no attempt to schedule an examination has succeeded since May 2017. The AOJ has experienced difficulties scheduling the requested examination for several reasons. On at least one occasion, the Veteran appears to have been hospitalized for psychiatric reasons. In May 2015, the AOJ determined that he was incompetent to manage his own funds and appointed a guardian to manage his monthly VA benefits. In part because of these difficulties, the Board’s January 2018 remand orders included this language: “If the Veteran is ultimately unable to attend an examination, a competent medical professional should review the file and provide the requested opinion to the extent possible.” Since the January 2018 remand, it appears that the AOJ attempted to schedule an examination the requested TBI examination in April 2018. According to a Report of General Information Form (VA Form 27-0820), dated January 2019, the examination was scheduled for June 19, 2018 and was cancelled two days before the scheduled date for the following reason: “Veteran unavailable.” According to the form, an AOJ employee attempted to telephone the Veteran using two numbers available in the claims file. The employee was unable to reach him on the telephone. It is unclear whether the Veteran, his representative, or his guardian were notified of the TBI exam scheduled for June 19, 2018. It is equally unclear whether the AOJ determined that he was “unavailable” because the AOJ was unable to contact him beforehand or whether the examination was actually cancelled at the Veteran’s request. Because of the record is insufficient to show that the Veteran had proper notice of the examination, the Board must remand this case another time. Even if the Veteran did have proper notice, Stegall would require a new remand because the AOJ made no effort whatsoever to comply with the Board’s order that, if the Veteran did not attend the exam, the AOJ should obtain the requested opinion based on a review of the medial records only. The requested post-remand opinion should not be provided by K.C., the examiner who provided the March 2015 and May 2017 VA opinions. The matters are REMANDED for the following action: 1. If the Veteran is available, schedule him for a VA TBI examination by a medical professional other than the examiner, K.C., who provided the March 2015 and May 2017 opinions. THE AOJ SHOULD DOCUMENT ALL ATTEMPTS TO CONTACT THE VETERAN AND HIS REPRESENTATIVE WHEN ATTEMPTING TO SCHEDULE THE EXAMINATION. IF, FOR ANY REASON, THE VETERAN DOES NOT ATTEND THE REQUESTED EXAMINATION, A COMPETENT MEDICAL PROFESSIONAL SHOULD REVIEW THE FILE AND PROVIDE THE REQUESTED OPINION TO THE EXTENT POSSIBLE BASED ON A REVIEW OF THE WRITTEN STATEMENTS AND MEDICAL RECORDS IN THE CLAIMS FILE. IN THE EVENT THE VETERAN DOES NOT REPORT FOR THE SCHEDULED EXAMINATION, DOCUMENTATION MUST BE OBTAINED AND ADDED TO THE CLAIMS FILE WHICH SHOWS THAT NOTICE SCHEDULING THE EXAMINATION WAS ACTUALLY SENT TO THE VETERAN’S LAST KNOWN ADDRESS AND TO THE ADDRESSES OF HIS REPRESENTATIVE AND HIS GUARDIAN. THE AOJ MUST INDICATE WHETHER ANY NOTICE THAT WAS SENT WAS RETURNED AS UNDELIVERABLE. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is also advised that the Veteran is competent to attest to observable symptoms, such as pain. Any opinion provided must consider the Veteran’s and any other competent lay statements and be accompanied by a rationale The examiner is asked to address the following: a) Does the Veteran currently have residuals of a TBI or head trauma? Address the May 2009 VA examination report’s notation of impaired motor functioning that “may be the result of one or both of his remote head injuries (both of which qualify as ‘mild TBI’).” b) If so, is it at least as likely as not (a 50 percent or higher probability) that residuals of a TBI or head trauma were caused by an injury in service, to include his reported fall down a flight of stairs, and in-service assault? The examiner should consider the Veteran’s statements, including his testimony regarding the onset of his TBI symptoms in service, as well as his in-service reports of periods of unconsciousness and fainting spells. If the examiner rejects the Veteran’s lay statements, he or she must provide reasons for doing so, and lay statements should not be rejected solely due to an absence of contemporaneous or corroborating medical records. 2. After completing the above actions, readjudicate the claim on appeal. If the benefits sought remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Michael Nye Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.