Citation Nr: 21066486 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 11-17 550 DATE: November 1, 2021 REMANDED Entitlement to service connection for residuals of a head injury, including a traumatic brain injury (TBI), is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1969 to September 1970, and from July 1976 to November 1992. This matter comes before the Board on appeal from a rating decision issued in August 2011 by the Department of Veterans Affairs (VA) Regional Office in Houston, Texas. It was previously before the Board in March 2018, at which time it was remanded for a VA examination, and again in October 2019. In its October 2019 decision, the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 Memorandum Decision, the Court set aside the October 2019 decision and remanded the claim to the Board for further development and readjudication. Specifically, the Court found that there had not been substantial compliance with its March 2018 remand instructions, which instructed the examiner to address service treatment records showing an in-service assault. The August 2018 examiner who authored a medical opinion explained that he did not believe that the Veteran's symptoms showed that he had been assaulted in service, but if he had, then his subsequent symptoms began long after such an event. The Court determined that the examiner was biased regarding the existence of an in-service event, and the effect of such bias on his negative nexus opinion was unclear. Because the Board had instructed the examiner to address in-service evidence of an assault, there was not substantial compliance with its March 2018 remand instructions. Thus, the Court instructed the Board to order a new examination, undertaken by a different examiner. It does so now. The matters are REMANDED for the following action: Provide the claims file to an appropriate medical professional, other than the neurologist who authored the August 2014 and August 2018 opinions, to provide a medical opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the new opinion. The selected examiner is asked to accept as true the fact that the Veteran was assaulted in May 1980, while in service. Following a review of the record, the examiner is asked to opine as to whether it at least as likely as not (that is, a 50 percent or greater probability) that the Veteran experiences any residuals, including a TBI and/or headaches, from the head injury he sustained in that assault. The examiner's attention is directed to service treatment records from May 1980 which show that after the Veteran was assaulted, he lost consciousness, and subsequently reported headaches, increased lethargy and confusion. The examiner must also consider and address the Veteran's competent and credible lay statements concerning the injury in service and any current symptoms. A rationale should be provided for any opinion or conclusion offered. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.