Citation Nr: 21001676 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-37 328 DATE: January 11, 2021 REMANDED The issues of entitlement to service connection for a traumatic brain injury (TBI), to include as secondary to service-connected posttraumatic stress disorder (PTSD), and entitlement to service connection for a head scar, right orbit, to include as secondary to service-connected PTSD, are remanded for additional development. REASONS FOR REMAND The Veteran served on active duty from November 2003 to November 2007, with service in Iraq. He was awarded the Combat Action Ribbon, Humanitarian Service Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal (Iraq), and National Defense Service Medal. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In August 2019, the Board remanded the current issues on appeal for additional development. Since the requested development has not been completed, however, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Board remanded this appeal in August 2019 so that the Agency of Original Jurisdiction (AOJ) could obtain a VA examination and VA medical opinion, and then readjudicate the Veteran’s claim for service connection for a TBI and head scar, right orbit. In July 2020, the AOJ issued a supplemental statement of the case (SSOC) continuing to deny the claims. In the August 2019 remand, the Board noted that the Veteran asserted that he has residuals of a TBI and head scar due to a motor vehicle accident (MVA) in 2009, which he states was an intentional result of a suicide attempt associated with his service-connected PTSD. Pursuant to the August 2019 remand, the Veteran was afforded a VA TBI residuals examination in January 2020. The Veteran reported that he attempted suicide by driving his vehicle into a ditch while under the influence of alcohol. The Veteran stated that he was airlifted to a hospital and incurred right-sided brain swelling and a scalp tissue injury and required cardiac pulmonary resuscitation. The Veteran endorsed current symptoms of headaches in the right scalp area, dizziness, decreased attention, concentration, and memory; difficulty learning repetitive tasks and understanding directions; difficulty using or comprehending written language, and poor hand-eye coordination. The examiner determined that the Veteran did not have complaints of impairment of memory, attention, concentration, or executive function and that he had normal social interaction and was always oriented to person, time, place, and situation. The examiner also determined that the Veteran had no subjective symptoms and was able to communicate and comprehend spoken and written language. The examiner concluded that the Veteran did not have any subjective symptoms or any mental, physical or neurological conditions or residuals attributable to a TBI, including headaches or scars. In contrast, the Veteran was also afforded VA scars examination with the same examiner. The examiner diagnosed the Veteran with right frontal and temporal scalp scars and a scar above the base of the nose between the eyebrows. The examiner noted that the Veteran’s scars resulted in depressed surface contour to depression, abnormal texture, and hyperpigmentation but did not provide color photographs of the Veteran’s facial scars. At the VA headaches examination, the Veteran reported that he experiences headache pain localized to one side of the head. The Veteran described a very brief sharp stabbing pain on the right side of his head that occurs multiple times per day. The examiner then determined that the Veteran had no evidence of a headache diagnosis. The Board finds that the VA examiner’s medical findings at the above examinations are internally inconsistent and disregard the Veteran’s reported symptoms. Furthermore, the VA examiner opined that residuals of a TBI and head scar were not related to service, to include direct service connection and causation or aggravation by service-connected PTSD. He applied verbatim reasoning for each of the three theories of entitlement to service connection. In so doing, the VA examiner premised his opinion upon the apparent absence of contemporaneous medical records regarding the MVA. The Board points out that the examiner’s rationale violated the rule espoused in Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) that a ‘medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service.” Notwithstanding, the Board notes that June 2009 emergency department records documenting the MVA are of record, which reflects that the VA examiner did not appropriately review the claims file in conjunction with his examinations. Further, the VA examiner placed significant emphasis upon the credibility of the Veteran’s self-reported symptoms. The examiner’s province, however, is restricted to the medical realm, and the matter of weighing the credibility of lay statements ultimately fall within the province of VA adjudicators, and not VA examiners. Puzzlingly, the VA examiner also noted that “hypothetically, if a head injury or TBI had occurred as claimed by the Veteran, it is due to blunt trauma of his head or brain; the Veteran’s decision to leave the road to commit suicide is not a blunt trauma force to the head or brain” and that “PTSD is a mental health condition of psychiatric or psychological etiology, it is not a physical diagnosis; PTSD is not a physical force that can be applied upon the brain structures nor to the skin or scars thus it is not possible for PTSD to aggravate these physical entities.” The above patronizing statements, read together with the medical nexus opinions, do not indicate that the VA examiner appropriately reviewed the claims file or considered the Veteran’s lay statements that the MVA, which resulted in brain swelling, was an intentional result of a suicide attempt associated with his service-connected PTSD. Based on the foregoing deficiencies, the Board finds this opinion inadequate to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). By issuing an SSOC without obtaining an adequate VA opinion, the AOJ did not substantially comply with the Board’s August 2019 remand order. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). On remand, the AOJ must obtain an adequate VA medical opinion regarding the nature and etiology of any diagnosed TBI, to include headaches and post-concussion syndrome, and head scar. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a neurologist, other than the January 2020 VA examiner, to determine the nature and etiology of any TBI and head scar. The examiner should review the Veteran’s entire claims file and any relevant studies, tests, and evaluations deemed necessary should be performed. The entire claims file, including a copy of this Remand, must be made available to and must be reviewed by the examiner. Thereafter, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s TBI and head scar, right orbit, had its onset in, was caused by, or is otherwise related to service? Please address the Veteran’s contention that the MVA in which he sustained a TBI and head scar was a result of a suicide attempt related to his PTSD symptoms, which was untreated at the time. The examiner must address the Veteran’s post-service diagnoses of TBI with loss of consciousness, postconcussion syndrome, impaired cognition, and posttraumatic headaches. (b.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s TBI and head scar was caused by or was a result of the Veteran’s PTSD symptoms? Please address the Veteran’s contention that the MVA in which he sustained a TBI and head scar was a result of a suicide attempt related to his PTSD symptoms, which was untreated at the time. For purposes of this opinion, the examiner should presume the Veteran’s statements are credible. The examiner must address the Veteran’s post-service diagnoses of TBI with loss of consciousness, postconcussion syndrome, impaired cognition, and posttraumatic headaches. (c.) Is it at least as likely as not (50 percent probability or more) that the Veteran’s TBI or head scar was aggravated beyond its natural progression by the Veteran’s PTSD? Please address the Veteran’s contention that the MVA in which he sustained a TBI and head scar was a result of a suicide attempt related to his PTSD symptoms, which was untreated at the time. For purposes of this opinion, the examiner should presume the Veteran’s statements are credible. The examiner must address the Veteran’s post-service diagnoses of TBI with loss of consciousness, postconcussion syndrome, impaired cognition, and posttraumatic headaches. (d.) If the Veteran’s TBI or head scar was worsened beyond its natural progression (aggravated) by his PTSD, please attempt to quantify the degree of aggravation beyond the baseline level that is attributable to the PTSD. (e.) The clinician should note that, pursuant to the Court of Appeals for Veterans Claims holding in Frost v. Shulkin, 29 Vet. App. 131 (2017), service connection for a TBI or head scar as caused or aggravated by PTSD is not barred merely because the TBI or head scar was diagnosed prior to PTSD. (f.) In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim, March 22, 2014. (g.) The clinician should note that this question requires two separate opinions: one for causation and a second for aggravation. The term “aggravation” means a worsening of the disability beyond its natural progression. If aggravation is found then, to the extent possible, the clinician should attempt to establish a baseline level of severity of the TBI and head scar prior to aggravation by the PTSD. (h.) A rationale for any opinions expressed should be set forth. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claims on appeal. If the benefit sought on appeal remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Bilstein, 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.