Citation Nr: 20021978 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 19-30 513 DATE: March 30, 2020 ORDER Reopening of the claim for entitlement to service connection for the residuals of a head injury, to include traumatic brain injury (TBI) residuals, is granted. REMANDED Entitlement to service connection for the residuals of a head injury, to include TBI residuals, is remanded. FINDING OF FACT 1. Service connection for a head injury was denied in a December 2015 rating decision. The Veteran did not file an appeal of the rating decision. 2. Evidence associated with the claims file since the final December 2015 rating decision relates to an unestablished fact necessary to substantiate the claim for service connection for a head injury. CONCLUSION OF LAW 1. The December 2015 rating decision that denied service connection for a head injury is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim for service connection for a head injury. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 1992 to October 1996. Additional evidence was added to the record since the August 2019 statement of the case. As the reopened claim is REMANDED to the Agency of Original Jurisdiction (AOJ) for consideration on its merits, that evidence will be considered at that time; waiver is not necessary. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for the residuals of a head injury, to include TBI residuals The Veteran’s claim of service connection for a head injury was denied in a December 2015 rating decision because there was no clinical diagnosis of a head injury. The December 2015 decision became final because the Veteran did not submit a Notice of Disagreement (NOD) or new and material evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156(b). The question before the Board is whether new and material evidence has been submitted to reopen the claim. Evidence added the record since the December 2015 rating decision include an August 2018 VA PTSD examination which noted a stressor of a TBI in service. PTSD was granted, based on the conceded stressor of the TBI in service. See September 2018 rating decision. A separate VA examiner opined that the Veteran had a significant shift in thresholds of both ears from the explosion, subjective neurological conditions or residuals attributable to TBI, and his headaches were due to the explosion he experienced during service. See August 2018 C&P Exams; February 2020 C&P Exam. The Board finds this evidence is “new” in that it had not been previously submitted. Moreover, the evidence is “material” because it relates to an unestablished fact necessary to substantiate the Veteran’s claim. The VA examinations include diagnoses of TBI or other disabilities related to the incident itself. The examinations are neither cumulative nor redundant of the evidence of record at the time of the December 2015 rating decision and raises a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110 (2010). De novo consideration of the claim is addressed in the remand below. REASONS FOR REMAND Entitlement to service connection for the residuals of a head injury, to include TBI residuals, is remanded. Prior to the adjudication of this appeal on the merits, additional development must be undertaken. The claim is remanded to obtain an adequate opinion. The December 2015 examiner gave a negative opinion noting the Veteran’s symptoms but based his opinion on the lack of a medical diagnosis or clinical data of TBI in the file while ignoring the Veteran’s lay statements of record including onset and continued symptoms. The August 2018 examiner opined that the Veteran has “subjective neurological conditions or residuals attributable to TBI,” but in a subsequent September 2018 addendum opinion, stated that “the diagnosis of TBI that [he] initially made was based on [the Veteran’s] subjective report of his history.” He further stated that “there is no medical evidence that this occurred from the medical records in his file.” The opinions are inconsistent, especially in light of the subsequent grant of service connection for PTSD which conceded the explosion in service as a stressor. The examination on remand must identify any residuals of the TBI, other than those already service connected (example PTSD, tinnitus, hearing loss). The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Upon receipt of any additional records, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any residuals of the conceded in-service explosion. Copies of all pertinent evidence must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the record, the examiner answer the following: (a) identify all residuals of the conceded explosion in service (other than hearing loss and tinnitus). (b) Is it at least as likely as not that the pineal cyst on the brain, diagnosed in 2016 is a residual of the explosion in service? In providing the opinion, the examiner should address the following: In answering this, the examiner must consider the following: (i) the Veteran’s statements that the blast was about one foot from his head, his hair was burned, his vision went black, and he was blown back several feet and to the ground; (ii) that he had a brief loss of consciousness as he does not recall being blown to the ground; (iii) being confused and disoriented on the way to the medical clinic following the explosion (see December 2015 C&P Exam; October 2019 Form 9); (iv) the Veteran’s statements that after the explosion and as a result of the explosion, he experienced headaches, pressure sensations on both sides of his head, tinnitus, hearing loss, forgetfulness, loss of balance, dizziness, vertigo, and concentration impairment (See December 2015, August 2018 C&P Exams). In rendering the requested opinions, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must provide a rationale for any proffered opinion. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jones Council, 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.