Citation Nr: 21001215 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-04 117 DATE: January 7, 2021 REMANDED Service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2004 to July 2004, June 2005 to September 2006, and February 2009 to March 2010. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision issued by a regional office of the Department of Veterans Affairs (VA). In October 2020, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A copy of the hearing transcript is included in the claims file. The Veteran contends that he sustained a TBI from an improvised explosive device blast in Iraq in July 2006. He seeks service connection for residuals from that injury, including chronic headaches. The Board notes that he is already service-connected for an anxiety disorder (previously rated as posttraumatic stress disorder). The agency of original jurisdiction (AOJ) originally denied the TBI claim in an unappealed November 2012 rating decision. Generally, VA may not reopen and review the disposition of previously denied claims unless the claimant submits new and material evidence. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156. However, 38 C.F.R. § 3.156(c) requires VA to reconsider a claim when relevant service department records are newly associated with the claims file, whether or not they are “new and material.” Blubaugh v. McDonald, 773 F.3d 1310, 1313 (Fed. Cir. 2014). In this case, the AOJ associated additional service treatment records with the claims file in July 2014. The Board finds these records relevant and will therefore consider the claim on the merits, without first determining whether the evidence received since the previous denial is new and material. Consistent with his hearing testimony, post-service medical records reflect that the Veteran has been diagnosed with a TBI and posttraumatic tension headaches. Additionally, in 2012, a VA MRI revealed white matter lesions “consistent” with a TBI. See e.g. May 2010 VA TBI Assessment; March 2012 & May 2012 VA Neurology Consultation Notes. In May 2012, a VA examiner determined that the claimed disability was less likely than not incurred in or caused by service. Because the 2012 medical opinion was based primarily on a lack of evidence of a head injury or headaches in the then-available service treatment records, remand for a new examination and opinion is warranted. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). On remand, the examiner should consider the service treatment records added to the file in 2014, VA treatment records (particularly the 2012 neurology reports), the Veteran’s recent hearing testimony and any other relevant lay statements. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate medical professional, preferably a neurologist. After reviewing the claims file, including this remand, the examiner should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran experiences residuals from a TBI sustained in service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s headaches are otherwise etiologically related to service, or manifested within one year of separation? In particular, the examiner’s opinion must reflect consideration of the service treatment records added to the file in July 2014, VA treatment records (including the 2012 neurology reports), the Veteran’s October 2020 testimony and any other relevant lay statements. 2. Review the medical opinion above to ensure substantial compliance with the Board’s directives. Take any necessary corrective action. 3. Readjudicate the Veteran’s claim. If it remains denied, issue a supplemental statement of the case and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.