Citation Nr: 21001926 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 10-31 647 DATE: January 12, 2021 REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1976 to April 1980. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2009 rating decision. In November 2011, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed by the Board. A hearing transcript is of record. In August 2019, the Board sent the Veteran a letter explaining that the person who presided at his hearing would no longer be able to decide the case and inviting the Veteran to participate in a new hearing. The Veteran did not respond. In November 2012, July 2014, November 2016, August 2017, January 2018, and January 2020, the Board remanded this matter for further development. Unfortunately, additional remand is necessary. 1. Entitlement to service connection for a TBI is remanded. In January 2020, the Board remanded this matter to obtain VA medical opinion regarding whether the Veteran has residuals from a TBI in service. The remand directives instructed that the medical opinion specifically address the May 2009 VA examiner’s notation of impaired motor functioning that “may be a result of one or both of his remote head injuries (both of which qualify as ‘mild TBI’).” In February 2020, a VA medical opinion provider opined that the Veteran does not have residuals of TBI as a result of in-service injury. The opinion provider explained that the Veteran did not have headaches until 2012. The opinion provider explained that the Veteran’s current memory impairment is not likely related to his in-service head injuries as the Veteran complained of memory impairment beginning in 2002 and his psychiatric issues along with his diabetes, chronic ischemic heart disease, and hyperlipidemia are the most likely cause of his cognitive impairment. The opinion provider explained that the records do not show symptoms of TBI. However, the February 2020 opinion provider did not address the May 2009 VA examiner’s notation of impaired motor functioning that may be the result of remote head injuries, as instructed in the January 2020 remand. The May 2009 VA examiner noted that the generalized slowing and areas of executive dysfunction could be attributable to the Veteran’s psychiatric status but that the inconsistently lateralized motor performance may be a result of his head injuries. Accordingly, remand is appropriate to obtain additional VA medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). While this matter is on remand, any outstanding treatment records should be obtained, including any VA treatment records from July 2019 to the present. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from July 2019 to the present. 2. After outstanding treatment records are obtained to the extent possible, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should opine as to whether the Veteran has experienced residuals of a TBI or head trauma at any time during the claims period (from March 2009 to the present), even if resolved. If so, the examiner should opine as to whether it is at least as likely as not (a 50 percent or higher probability) that the Veteran’s residuals of a TBI or head trauma are related to service, to include the Veteran’s reported in-service fall down a flight of stairs and in-service assault. The examiner should consider all medical and lay evidence of record. The examiner MUST specifically address the May 2009 VA examiner’s notation of impaired motor functioning that “may be a result of one or both of his remote head injuries (both of which qualify as ‘mild TBI’).” The examiner should consider the Veteran’s statements, including his testimony regarding the onset of his TBI symptoms in service, as well as his in-service reports of periods of unconsciousness and fainting spells. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. 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. 3. After the above development, and any other development deemed necessary, readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.