Citation Nr: 20047544 Decision Date: 07/16/20 Archive Date: 07/16/20 DOCKET NO. 13-16 635 DATE: July 16, 2020 REMANDED Entitlement to service connection for a traumatic brain injury (TBI) (claimed as concussion) is remanded. Entitlement to service connection for migraine headaches is remanded. REASONS FOR REMAND The Veteran had honorable active duty service in the U.S. Army from August 1969 to November 1970. His service in the U.S. Marine Corps from June 1972 to July 1974 was characterized as under conditions other than honorable. See Administrative Decision, September 1974. This appeal arises from a December 2011 rating decision, denying service connection for the claimed concussion and headaches disorders. In April 2019, the Board remanded the case to the AOJ for additional development and consideration. The file is again before the Board for further appellate review. 1. Entitlement to service connection for a traumatic brain injury (TBI) (claimed as concussion) 2. Entitlement to service connection for migraine headaches The Veteran contends that he received a concussion when he was blown off of a bunker, from a mortar attack in the summer of 1970, while stationed at Camp Holloway, in Pleiku, Vietnam, and that the concussion caused the development of his migraine headaches. See August 2008, May 2009 and January 2012 Veteran’s statements; see also April 2019 Veteran’s representative’s informal hearing presentation. A May 2019 VA memo by the AOJ had earlier conceded the Veteran’s claim that he was blown off a bunker while on guard duty, during mortar attacks while stationed at Camp Holloway, Vietnam in May-June 1970. Then, the Board’s April 2019 remand had accepted the Veteran’s in-service concussion from mortar attacks as a presumed combat-related injury under 38 U.S.C. § 1154 (b). The Board’s April 2019 remand directive for a VA examination and medical opinion on the etiology of the claimed headaches/TBI expressly stated that the Board conceded the fact of an in-service head injury. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). On remand, the November 2019 VA examiner provided negative nexus opinions concerning the headaches and TBI claims, reasoning that the Veteran did not suffer a head injury or TBI during service. So, the Board finds this opinion is inadequate for resolving the claim and did not comply with the Board's remand directive for conceding an in-service head injury in offering a medical nexus opinion. See Stegall v. West, 11 Vet. App. 268 (1998); and Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Another VA medical nexus opinion, from a different VA clinician, is needed to determine the etiology of the Veteran’s claimed TBI and migraine headaches. The matters are REMANDED for the following action: Obtain a VA medical opinion by an appropriate clinician, different from the November 2019 VA examiner, to determine the etiology of his claimed migraines and TBI disabilities. The examiner should indicate that the record was reviewed. On review of the record, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed headaches and/or TBI disability is caused by or otherwise etiologically related to active duty service. In providing the opinion, the examiner must consider as an established fact that the Veteran had a concussion during a mortar attack in May-June 1970, in Vietnam. Rationale must be provided for the opinion proffered. Also reconcile any competent lay statements by the Veteran on the history of his claimed disability during service and symptoms (e.g., concussion during service and headaches) following service. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, 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.