Citation Nr: 21000437 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-25 745 DATE: January 5, 2021 REMANDED Entitlement to service connection for psychomotor epilepsy (claimed as residuals of a traumatic brain injury) is remanded. Entitlement to service connection for unspecified neurocognitive disorder (claimed as residuals of a traumatic brain injury) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1968 to August 1968. These matters are on appeal from a November 2014 rating decision. At a July 2019 hearing, the Veteran testified before the undersigned Veterans Law Judge. In November 2019, the Board of Veterans’ Appeals (Board) remanded this appeal to the Agency of Original Jurisdiction (AOJ) for further development. The Board has split this appeal into two separate issues based on the current and distinct diagnoses provided at the recent January 2020 VA examinations. 1. Entitlement to service connection for psychomotor epilepsy (claimed as residuals of a traumatic brain injury) is remanded. 2. Entitlement to service connection for unspecified neurocognitive disorder (claimed as residuals of a traumatic brain injury) is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding these issues. Specifically, in November 2019, the Board remanded the appeal to obtain the Veteran’s treatment records dated since 1968 from the Jamaica Plain VA Medical Center (VAMC), which is part of the Boston, Massachusetts, VAMC. Upon remand, the AOJ sent the Veteran a November 2019 letter, requesting a VA 21-4142 Form for the Jamaica Plain VA treatment records. However, a VA 21-4142 Form is not required for VA facilities. No further attempts were made by the AOJ, and the AOJ did not issue a Formal Finding of Unavailability regarding these records. The AOJ then sent the Veteran a letter in February 2020, stating that VAMC records were unavailable; however, the letter did not state which VAMC facility records were unavailable, the attempts made by the AOJ to obtain the records, or the dates of the records that were unavailable. The Board does not find that these actions represent substantial compliance of the Board’s prior remand. The Board notes that the Veteran has also reported treatment at the Brockton VAMC since 1968, which is also part of the Boston, Massachusetts, VAMC. Attempts to obtain these records have not been made by the AOJ. See May 2013 VA 21-526 Form. Upon remand, the Veteran was also provided VA examinations and medical opinions in January 2020. In pertinent part, the Veteran was diagnosed with unspecified neurocognitive disorder, but the examiner did not provide a medical opinion regarding the etiology of this diagnosis. Also, the examiner did not provide a chronic presumptions medical opinion for the current diagnoses. Further, the examiner did not presume the Veteran is competent and credible to describe the head injury sustained during basic training, as specifically stated in the Board remand. Thus, additional VA medical opinions must be obtained upon remand. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following actions: 1. Obtain the Veteran's treatment records for the period from 1968 to January 2011 from the VA Medical Center in Boston, Massachusetts (to include those from the Jamaica Plain VAMC and the Brockton VAMC). If the treatment records are unavailable, a Formal Finding of Unavailability must be issued by the AOJ. If the treatment records are unavailable, the Veteran and his representative must be notified of the unavailability of the VA records, to include the name(s) of the VA facility(ies), the date(s) that are unavailable, and the attempts made by the AOJ to locate the records. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s currently diagnosed psychomotor epilepsy. The examiner is asked to provide a response to the following: Is the psychomotor epilepsy at least as likely as not related to service, including the head injury sustained during basic training? Is it at least as likely as not that the psychomotor epilepsy (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must presume that the Veteran is competent and credible to describe the head injury sustained during basic training. The examiner must address the Veteran’s statement that he was treated by VA within weeks of his release from active duty and was informed that he had epilepsy at that time. Provide a rationale to support the opinion(s). 3. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s currently diagnosed unspecified neurocognitive disorder. The examiner is asked to provide a response to the following: Is the unspecified neurocognitive disorder at least as likely as not related to service, including the head injury sustained during basic training? Is it at least as likely as not that the unspecified neurocognitive disorder (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? The examiner must presume that the Veteran is competent and credible to describe the head injury sustained during basic training. Provide a rationale to support the opinion(s). 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shauna M. Watkins, 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.