Citation Nr: 20004479 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 16-38 432 DATE: January 21, 2020 REMANDED The issue of entitlement to service connection for traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran had active service from December 1979 to August 1992. This matter is before the Board on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) dated December 2012. The Veteran and his wife testified before the undersigned Veterans Law Judge during an August 2019 videoconference hearing, a transcript of which is associated with the claims file. The Veteran seeks service connection for a TBI. The Veteran is not presumed to have been in sound condition upon entrance into service because in June 1979, prior to his entry into active service, the Veteran sustained a TBI with loss of consciousness when he was involved in a motor vehicle accident (MVA). Thus, the issue before the Board is whether the Veteran’s pre-existing TBI was aggravated (i.e., permanently increased in severity) during service. Key to this determination is the existence of an in-service event or injury. The Veteran’s service personnel records show that his military occupational specialty was 52C - Utilities Equipment Repairer, and that he was deployed to Saudi Arabia from January 22, 1991 to April 30, 1991. The Veteran’s DA Form 2446 dated January 17, 1991 states that the Veteran was ordered to temporary duty at the 23rd Replacement Detachment (1D41A) and was to be assigned to ARCENT MEDCOM upon arrival in theatre. A February 1994 VA Social Work Service form completed by the Veteran shows that he reported being assigned to the 350th Evacuation Hospital, the 251st Evacuation Hospital, and the 803rd Medical Group during his deployment. A certificate of appreciation in his personnel records indicates that the Veteran was assigned to the Armed Forces Hospital at King Khalid Military City. The Veteran has made contradictory statements regarding the existence of any in-service injury or event upon which his claim is based. The Veteran initially denied that he experienced any head-related injury during service, to specifically include during his deployment to Southwest Asia, and reported that his current symptoms began after he suffered a post-service head injury at work in or about 1997. See, e.g., February 1994 VA Social Work Service form (Veteran reported exposure to burning oil wells but no other injuries); July 2009 VA Physical Medicine Rehabilitation Consultation note (denying any injury while deployed); April 2011 VA provider memorandum (noting Veteran’s report of pre-service MVA and 1997 work injury and onset of TBI-related symptoms following the latter). However, in 2012 the Veteran started claiming that he had suffered multiple TBIs while on deployment as a result of “bombs” exploding near him, specifically in Dhahran in January 1991 and at “Log Base Echo” in early March 1991. See, e.g., July 2012 VA TBI examination (Veteran reported “that he experienced several explosions during his time on deployment” and “was thrown from his bed in one incident”); August 2012 VA eye examination (Veteran reported a TBI “when he was near a bomb explosion”); December 2012 Notice of Disagreement (“While in Desert Storm I was involved in several explosions in which I was thrown to the ground from the duty I was performing due to the concussive blast of the explosion.”); June 2013 VA Form 21-4138 (Veteran reported that in January 1991 a “bomb went off close to the reception area” at Dhahran; that in March 1991 he was at “Log[istics] Base Echo” and knocked off of his cot and lost consciousness when a bomb went off near his tent, which he contends happened “several times”; and that he “was also around a lot of bombing” in Iraq).   The Board finds that VA’s duty to assist necessitates remand for the RO to attempt to obtain records that could verify the Veteran’s contentions regarding his exposure to bomb blasts. On remand, the RO should make a request to the National Personnel Records Center (NPRC) or other appropriate records custodians for copies of any assignment orders, travel orders, unit histories, morning reports, or other records that can verify where and/or to which units the Veteran was assigned within the Southwest Asia theatre of operations during his deployment. The RO should specifically attempt to obtain records showing where the 23rd Replacement Detachment (1D41A), 251st Evacuation Hospital, the 350th Evacuation Hospital, and the 803rd Medical Group were assigned during the period from January 22, 1991 to April 30, 1991. The RO should also specifically attempt to obtain records that could verify the occurrence of any “bomb” or other explosions that occurred either in Dhahran at a reception area between January 22, 1991 and January 31, 1991 or at “Log Base Echo” in March 1991. If the foregoing development results in evidence that shows that the Veteran was as likely as not directly exposed to one or more explosions while deployed to Southwest Asia, the Veteran should be afforded an opportunity for a new VA examination and medical opinion regarding aggravation. In addition, the Veteran testified that his work performance declined upon his return from deployment. The RO should attempt to obtain any performance evaluation reports that are not already associated with the claims file for the period from May 1991 to August 1992. Accordingly, the matters are REMANDED for the following action: 1. Obtain and associated with the claims file any missing performance evaluation reports for the period from May 1991 to August 1992. 2. Conduct the following development to attempt to corroborate the Veteran’s alleged in-service exposure to “bomb” explosions. The RO should contact the NPRC or other appropriate records custodian(s) to obtain any relevant records, such as assignment orders, travel orders, unit rosters, daily reports, or other records that might provide information about the following: (a.) The Veteran’s unit(s) and location(s) of assignments while deployed to Southwest Asia from January 22, 1991 to April 30, 1991. (b.) The location(s) of the following units for the period from January 22, 1991 to April 30, 1991: 1. 23rd Replacement Detachment (1D41A) 2. 251st Evacuation Hospital; 3. 350th Evacuation Hospital; and 4. 803rd Medical Group. (c.) Whether the Veteran was in Dhahran, Saudi Arabia between January 22, 1991 and January 31, 1991. (d.) Whether a bomb or other munition/ordnance explosion occurred at or near a reception center (including but not limited for the 23rd Replacement Detachment (1D41A)) in Dhahran between January 22, 1991 and January 31, 1991, and if so, the details regarding the explosion to include the magnitude of the blast, proximity to the reception center, and any casualties. (e.) Whether the Veteran was at “Log[istics] Base Echo” in March 1991. (f.) Whether any bomb or other munition/ordnance explosion(s) occurred at “Log[istics] Base Echo” in March 1991, and if so, any available details regarding the explosion(s). 3. Document all efforts and any negative responses in the claims file. If all procedurally appropriate actions have been taken to locate and secure those records and it is determined such records do not exist, or further efforts to obtain those records would be futile, make a formal finding to that effect. 4. DO NOT schedule the following VA examination until the above development has been completed to the extent possible. 5. If, and only if, the RO determines the Veteran was as likely as not exposed to one or more explosions from a bomb or other munition/ordnance, schedule the Veteran for a VA TBI examination to obtain an opinion. All indicated tests and studies should be accomplished and the findings reported in detail. The examiner must provide a comprehensive explanation for all opinions provided, and address the following: (a.) Is it at least as likely as not (i.e., at least a 50 percent probability) that the Veteran’s pre-existing TBI was aggravated during his active military service? The term “aggravated” means a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve to the baseline level of disability.   (b.) If so, is there clear and unmistakable evidence (obvious or manifest) that the increase in severity was due to the natural progress of the disability, as opposed to any in-service events or injuries? MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Leamon 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.