Citation Nr: 20008151 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 18-28 134 DATE: January 30, 2020 REMANDED Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1987 to February 1992. These matters come before the Board of Veterans’ Appeals (Board) from a July 2016 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a November 2019 hearing and a transcript of the hearing has been associated with his claims file. 1. Entitlement to service connection for residuals of TBI is remanded. The Veteran contends that he hit his head on several occasions in service while performing parachute jumps. Although this occurred several times, one such injury was more severe than the others and he experienced symptoms such as confusion and dizziness following the injury. He did not receive any significant treatment in service for his head injuries, but he suggested during the November 2019 Board hearing that he has continued to experience symptoms related to his head injuries (including memory loss) in the years since service. However, there is some evidence to the contrary. For instance, there is no evidence of any complaints of or treatment for head injuries or symptoms associated with head injuries in his service treatment records, the first evidence of any treatment for such symptoms is not for years following service, and the Veteran has provided information which is inconsistent with a continuity of symptomatology in the years since service. Moreover, his treatment records suggest that some of his claimed symptoms are associated with his claimed psychiatric disability. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for residuals of TBI because no VA examiner has determined the nature of any such disability or opined whether such disability is related to service. Therefore, an appropriate examination should be conducted upon remand. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Also, evidence associated with the claims file, including an April 2016 letter from the Disability Determination Section, indicates that the Veteran applied for Social Security Administration (SSA) disability benefits for unspecified disability. A remand is required to allow VA to request these outstanding and potentially relevant records. Lastly, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Huntington Vista electronic records system and are dated to February 2017. Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to service connection for psychiatric disability, to include PTSD, is remanded. The Veteran contends that he has current psychiatric disability related to his head injuries in service. In the alternative, he has reported combat-related psychiatric stressors while serving in Southwest Asia. He suggested during the November 2019 Board hearing that he began to experience psychiatric symptoms in service and that such symptoms have continued in the years since service, but there is some evidence to the contrary. For instance, there is no evidence of any complaints of or treatment for psychiatric problems in his service treatment records, the first evidence of any treatment for psychiatric symptoms is not for years following service, and the Veteran has provided information which is inconsistent with a continuity of symptomatology in the years since service. The Veteran was afforded VA psychiatric examinations in March and April 2018 and was diagnosed as having major depressive disorder and generalized anxiety disorder with panic attacks. The examiner who conducted the March 2018 examination concluded that the Veteran did not have PTSD and both the March and April 2018 examiners opined that his current psychiatric disabilities were not likely related to service, to include his head injuries in service. A May 2016 VA primary care nursing note and a June 2016 VA mental health note indicate that a PTSD screen was positive and that the Veteran reported symptoms consistent with PTSD. In light of this evidence and the fact that the issue of entitlement to service connection for psychiatric disability is otherwise being remanded to obtain outstanding SSA records and VA treatment records, an appropriate medical opinion should be obtained upon remand that considers the evidence of PTSD in the Veteran’s claims file and addresses whether he has ever experienced PTSD during the claims period or whether any other current psychiatric disability is related to service, to include his reported head injuries and psychiatric stressors in service. Also, all outstanding SSA records and VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for residuals of TBI and psychiatric disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for residuals of TBI and psychiatric disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Huntington Vista electronic records system for the period since February 2017; and all such relevant records from any other sufficiently identified VA facility. 3. Obtain the Veteran’s federal disability and/or supplemental security income records from the SSA. Document all requests for information as well as all responses in the claims file. 4. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, schedule the Veteran for a TBI examination by an appropriate clinician to determine the nature and etiology of any current residuals of TBI. The examiner must opine whether any residuals of TBI experienced by the Veteran since approximately May 2016 (including, but not limited to, any disability manifested by memory loss) at least as likely as not (1) began during active service; or (2) is related to an in-service injury or disease, including his reported head injuries while performing parachute jumps in service. For purposes of the above opinion, the examiner shall presume that the Veteran’s reports of head injuries and symptoms in service are accurate. The examiner must provide reasons for each opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any SSA records and additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the etiology of any current psychiatric disability, including PTSD. The clinician must opine whether the Veteran has experienced PTSD at any time since approximately May 2016. If so, the clinician must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to an in-service stressor. The clinician must also opine whether any other psychiatric disability experienced by the Veteran since approximately May 2016 at least as likely as not (1) began during active service; or (2) is related to an in-service injury or disease, including his reported head injuries while performing parachute jumps in service and his reported combat stressors in service. For purposes of the above opinions, the clinician shall presume that the Veteran’s reports of head injuries, symptoms, and psychiatric stressors in service are accurate. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for each opinion given. In this regard, the clinician should acknowledge and comment upon the significance of any evidence of PTSD in the Veteran’s treatment records (including, but not limited to, the May 2016 VA primary care nursing note and the June 2016 VA mental health note). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.