Citation Nr: 21003812 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-08 291 DATE: January 22, 2021 REMANDED Service connection for residuals of a head injury, to include traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1962 to April 1965. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the Court of Appeals for Veterans Claims (Court). It was originally before the Board on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA). This issue was denied by the Board in a December 2017 decision. The Veteran appealed that decision to the Court, which vacated the decision for that issue in a July 2019 Memorandum Decision. The Board remanded the issue in February 2020; it is once again before the Board. In May 2017, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) no longer at the Board; a transcript of that hearing is of record. In December 2020, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.604. Because the Veteran did not respond to that letter within 30 days, the Board will proceed with adjudication. The Board finds that further development is needed before it can proceed with adjudication. As stated above, the Board remanded this matter in February 2020 for further development. However, remand is again needed to comply with the February 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2019 Memorandum Decision, the Court found that the Board erred by failing to return the June 2013 VA examination for clarification on the existence and nature of residuals of the Veteran’s in-service head injury. The VA examiner wrote that the Veteran had “no residuals, no subjective symptoms of any mental, physical, or neurological conditions related to a TBI.” However, an April 2014 private physician’s letter stated that the Veteran suffered from “eye movement abnormalities of the right eye that very likely” occurred at the time of the in-service kicking injury. As the June 2013 VA examiner was requested to examine the Veteran for residuals of a head injury, rather than just the residuals of a TBI, clarification was needed from the examiner as to whether the Veteran experienced any residuals from the in-service kicking injury. The Board remanded the issue for further development in February 2020. The Board directed the AOJ to obtain an addendum opinion whether the Veteran experienced any residuals from an in-service head injury, to include TBI, and to consider the April 2014 private physician’s letter in rendering the opinion. The Veteran underwent a VA examination in September 2020. The VA examiner opined that the Veteran’s condition was less likely than not related to service. He stated that the Veteran’s service treatment records and separation examination did not note any head injury or loss of consciousness during service. Regarding the April 2014 private physician’s report about the Veteran’s eye movement abnormalities, the VA examiner stated that the report was a very generic statement that does not by any means establish any pathology, and the Veteran’s ophthalmological examinations from 2008, 2009, and 2011 diagnosed early cataracts. There is no current diagnosis for the claimed head injury to establish causality. The Veteran noted in a September 2020 letter that his ophthalmological examinations were basic eye examinations merely to obtain eyeglass prescriptions, cataract, and glaucoma checks – not comprehensive neurological examinations looking for neurological symptoms. His service treatment records do show a reported head injury, laceration, and loss of consciousness, and his separation examination was not conducted by a neurologist looking for a head injury. He further noted that the VA examiner’s support to his opinion that there are no details regarding his behaviors subsequent to his injury was because the Veteran’s work was classified. The Veteran also stated that he did exhibit bizarre behavior post-concussion. Further, a September 2020 buddy statement of the Veteran’s fellow service member, G.D., states that the Veteran was kicked above his eye while in service and the Veteran was “really out of it” and “not all there for the next day or so.” It is also noted that the Veteran was treated at the Army post by interns, as the only doctors were all in Munich. Finally, in the Court’s Memorandum Decision in June 2019, the Court stated that “a service treatment record showed that in August 1964, the Veteran was treated for a right eyebrow laceration, a concussion, and headaches after he was kicked in the head.” VA’s brief conceded an in-service injury and that the servicemember was treated a day later for headaches and “had a concussion yesterday.” The September 2020 VA examiner did not consider the Veteran’s service treatment records showing that the Veteran had a concussion in August 1964, nor did the examiner opine whether the Veteran experienced any residuals of the in-service kicking injury, rather than just the residuals of a TBI. As such, remand is necessary for an addendum opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain updated VA and non-VA treatment records. 2. The AOJ should arrange for a VA medical opinion from an appropriate specialist, with examination or telehealth interview of the Veteran only if deemed necessary by the specialist physician, to determine the nature and likely cause of any residuals of an in-service head injury. The examiner should review the claims file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify any residuals of the Veteran’s in-service head injury, to be considered separately from any residuals of a TBI. The examiner must consider and discuss the April 2014 private physician’s letter stating that the Veteran suffers from eye movement abnormalities of the right eye due to an in-service kicking injury. (b.) For any residuals diagnosed, is it at least as likely as not (50 percent or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service? Please explain why. (Continued on the next page)   The examiner must consider and discuss the April 2014 private physician’s opinion stating that the Veteran’s eye movement abnormalities of the right eye “very likely occurred at the time of the in-service kicking injury.” The examiner must consider and discuss the Veteran’s August 1964 kicking injury. For the purposes of this opinion, the examiner must take as fact that the Veteran suffered an in-service concussion resulting from this injury. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.