Citation Nr: 20036744 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 13-35 387 DATE: May 28, 2020 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1985 through August 1992, October 2002 through July 2003, August 2004 through August 2005, February 2006 through June 2007, October 2007 through October 2008, October 2007 through October 2008, May 2009 through June 2010 to July 2010 and August 2010 through December 2011, which includes honorable service in the Southwest Asia Theater Operation. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2019 decision, the Board denied entitlement to service connection for residuals of a TBI. The Veteran’s claims for bilateral hearing loss, a sinus condition, and a respiratory condition were remanded. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 Joint Motion for Partial Remand (JMPR), the parties agreed to vacate and remand the January 2019 Board decision as to the issue of entitlement to service connection for residuals of a TBI. An order memorializing the JMPR was issued by the Court in December 2019. Entitlement to service connection for residuals of a TBI is remanded. The Veteran contends that he has residuals of a TBI sustained in military service. In October 2004, service treatment records document the Veteran’s report of injury after his convoy was struck by a suicide vehicle-borne improvised explosive device (SVBIED). He endorsed decreased hearing and tinnitus as a result. Post-service treatment notes document a history of TBI with secondary hearing impairment. In June 2012, he was afforded a VA examination for residuals of TBI. He reported that after the convoy attack, he had experienced unconsciousness or loss of awareness for a few seconds. He also had a headache that lasted for several days. Other notable symptoms included difficulty hearing people and having a “solid tone” in his ears. Thereafter, he slowly began to forget things. The examiner opined there was no evidence of actual injuries consistent with a TBI, head injury, or concussion. Thus, there was no diagnosis of TBI. While the examiner acknowledged that the Veteran’s MOCA screen was abnormal, it was rationalized that it was best explained as a manifestation of PTSD or ADHD. In the November JMPR, it was conceded that the VA examiner’s opinion was inadequate. First, the examiner had failed to complete much of the examination form. Secondly, the examiner’s statement that there was no actual injury was inconsistent with the evidence of record; namely, the Veteran’s noted injury resulting from the SVBIED attack. Moreover, the examiner inappropriately referenced preexisting injuries although the Veteran had been presumed sound at entry. Lastly, the examiner’s opinion was conclusionary in finding that the MOCA screening’s abnormality was best explained as a manifestation of PTSD or ADHD. There was not a discussion of whether the MOCA score was also consistent with a TBI or a head injury, nor was a rationale provided for the opinion. There was also no consideration of whether the Veteran suffered from a TBI and PTSD as a result of enemy fire and IED explosions. As the record stands, there is conflicting evidence regarding whether the Veteran sustained a head injury or TBI in-service, and if so, has any current residuals thereof. Additionally, the Veteran informed VA that he was treated for a TBI in 2004 at Canandaigua VAMC. See August 2010 Application for Compensation. Available VA treatment notes also reference a history of TBI with hearing impairment and a TBI diagnosis. However, the current record does not contain treatment notes from Canandaigua VAMC 2004, nor information regarding an initial diagnosis of a TBI. Thus, further development is necessary. The matters are REMANDED for the following action: 1. Obtain all outstanding relevant VA treatment records, to include treatment records from Canandaigua VAMC in 2004. 2. Schedule the Veteran for a VA examination from a qualified VA medical professional to determine the nature and etiology of any current TBI disability. Any necessary diagnostic tests should be conducted, and a full history of all head injuries obtained. The examiner should review the claims folder, and then respond to the following: a. Does the Veteran have a current TBI or any other type of brain injury or brain disorder? Please identify and discuss when the injury was first diagnosed and identify all associated/residual symptoms. b. If the Veteran has a current TBI, or any other type of brain injury or brain disorder, is it at least as likely as not (i.e., probability of 50 percent or greater) that it is related to the Veteran’s service? Note that service treatment records document the Veteran’s report of injury after his convoy was struck by a suicide vehicle-borne improvised explosive device (SVBIED). In answering the questions, the examiner must review and consider the lay assertions of record. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge, particularly symptoms of residuals of a TBI. Specifically, attention is invited to: See VBMS, documents labeled STR-Medical, receipt date 04/14/2015, pages 30, 145 of 145, CAPRI, receipt date 11/8/2013, pages 313, 323-325; and Military Personnel, receipt date 11/26/2013. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. The examiner should note that the lack of a diagnosed TBI in service cannot serve as the sole basis for a negative finding. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.