Citation Nr: 21063677 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 18-13 379 DATE: October 15, 2021 REMANDED The appeal to reopen the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. The appeal to reopen the claim for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, is remanded. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2001 to September 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran was afforded a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. 1. The appeal to reopen the claim for entitlement to service connection for PTSD is remanded. 2. The appeal to reopen the claim for entitlement to service connection for an acquired psychiatric disorder other than PTSD is remanded. During his November 2020 Board hearing, the Veteran reported that he received mental health counseling through the VA Veterans Center. His counselor from the Vet Center testified at the hearing that he had been treating the Veteran for about two and a half to three years. However, to date, no records from the Vet Center have been associated with the claims file. VA's duty to assist includes assisting the claimant in the procurement of relevant records in the custody of federal agencies. 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(2). This duty ends only where the records either are obtained or it is determined that such records do not exist or that further efforts to obtain them would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). Here, the Veteran placed VA on notice of federal medical records that are not yet associated with the claims file; thereby triggering VA's duty to assist before VA can determine whether reopening is warranted. Ivey v. Derwinski, 2 Vet. App. 320, 32223 (1992). As such, a remand is necessary to obtain the VA Vet center records before the Board can determine whether the Veteran's claims should be reopened. See id. 3. Entitlement to service connection for residuals of a TBI is remanded. The Veteran asserts that his current memory problems, trouble concentrating, and headaches are associated with a TBI sustained during active duty resulting from his close proximity to several IED blasts. See November 2020 Board hearing transcript and July 2014 VA TBI examination. In July 2014, the Veteran was afforded an initial TBI evaluation. Under the diagnosis section, the examiner diagnosed the Veteran with a traumatic brain injury which occurred in 2005 while in the military. However, in his remarks section at the end of the examination, the VA examiner, Dr. F., opined that although the Veteran was exposed to multiple IED blasts at 100 to 300 feet range, he had no loss of consciousness, alteration of mental state at the time of the injury, head trauma or structural brain damage. Therefore, it was less likely as not that he suffered a TBI during service. Dr. F. was later asked to clarify his opinion because he initially diagnosed the Veteran with a TBI which began during service but subsequently stated that the Veteran did not suffer a TBI while in the military. Dr. F. responded that the case was difficult because the Veteran did not have the typical presentation for a patient with TBI, but he was exposed to activities which made him susceptible to have a TBI. He noted that the Veteran "may have a TBI" but he was not 100 percent sure and acknowledged that he could not determine whether or not the Veteran suffered a TBI in service without resorting to mere speculation. See September 2014 examination clarification email. The Board notes that an opinion is not inadequate merely because a medical professional indicates he or she cannot reach a conclusion without resorting to speculation. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Thus, while VA has a duty to assist a veteran by providing a medical examination in certain situations, that duty does not extend to requiring a medical professional to render an opinion beyond what may reasonably be concluded from the procurable medical evidence. Nevertheless, the Court of Appeals for Veterans Claims did find in Jones that the phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. In the case at hand, this is unclear. Because the VA examiner did not adequately opine as to whether the Veteran was currently diagnosed with a TBI disability that began in service or is related to service, noting that he "may have a TBI," but could not determine whether he had a TBI without resorting to speculation, the Board finds that remand is required to obtain a new medical opinion. On remand, the examiner should determine if the Veteran has a current TBI disability that began during service or is at least as likely as not related to an in-service injury or event, to include IED explosions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate.) The matters are REMANDED for the following actions: 1. The Veteran should be provided with a VA Form 21-4142 (Authorization and Consent to Release Information to the VA), so he can provide the information necessary to identify and locate VA and private medical records related to his mental health treatment. In particular, medical records should be obtained from the VA Vet Center located in Connecticut. For records from VA medical facilities identified by the Veteran, the RO must make as many requests as necessary to obtain the relevant records, until a determination has been made that the records sought do not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. § 3.159(c)(2). For private records identified by the Veteran, the RO should make an initial request for the records and, if the records are not received, at least one follow-up request. A follow up request is not required if a response to the initial request indicates that the records sought do not exist or that a follow-up request for the records would be futile. See 38 C.F.R. § 3.159(c)(1). 2. After the above records have been associated with the claims file, afford the Veteran a VA TBI examination to determine if he has a diagnosis of residuals of a TBI and, if so, whether it is related to his active duty service. The examiner must obtain from the Veteran and include in the examination report a complete description regarding the onset and continuity of symptoms. All appropriate diagnostic testing should be performed. Following a complete review of the evidence of record, and with consideration of the Veteran's statements, the examiner is requested to provide the following opinion: Determine whether it is at least as likely as not (50 percent probability or higher) that the Veteran has a diagnosis of residuals of a TBI which began during or is etiologically related to his active duty service, to include as due to in-service exposure to IEDs. Why or why not? A complete rationale for this opinion is required. Citation to accepted medical literature and principles (or lack thereof) would be of great assistance to the Board. If the examiner is unable to provide an opinion without resorting to speculation, he or she must explain why this is so. The phrase "without resort to speculation" should reflect the limitations of knowledge in the medical community at large and not those of a particular examiner. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.