Citation Nr: 21067454 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-30 484 DATE: November 4, 2021 REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 1980 to July 1984. This matter comes before the Board of Veterans Appeals (Board) on appeal from March 2016 and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously denied the claim in an August 2019 decision. The Veteran timely appealed to the Court of Appeals for Veterans Claims (Court) which issued a Memorandum Decision in March 2021 vacating and remanding the Board decision. A denial of service connection for asthma also contained in the Board decision was not disturbed. 1. Entitlement to service connection for TBI is remanded. The Veteran believes she has a TBI due to two different in-service incidences: a 1981 attack and a 1983 motor vehicle accident (MVA). Service treatment records (STRs) show in June 1981 the Veteran was treated for injuries where she claimed she was assaulted by three women in her barracks. She reported at that time being struck to the back of the cranium across the thoracic back and across the clavicle. STRs reflected she "received a blow to back of cranial" but a neurological evaluation was normal and there were no bruises or abrasions. No loss of consciousness was reported. It is worth noting that decades after service, in a July 2012 statement, the Veteran now recalls that, in fact, it was an August 1981 assault in Germany where a male Sergeant attacked her and banged her head against his bed and slapped and punched her. She reported that she went in and out of consciousness and believed that she may have been drugged. Aside from the 1981 assault (whether by three women or by one male), in an August 1998 statement, the Veteran also reported being in a motor vehicle accident (MVA) during service in January 1993. No head injury or loss of consciousness was noted in connection with the motor vehicle accident. At separation, a head evaluation was normal and the Veteran herself denied a head injury, loss of memory or amnesia, and periods of unconsciousness. After service, the Veteran was afforded several VA examinations, most relevantly in September 2015 and October 2015 where the September 2015 VA examiner diagnosed a mild TBI and the October 2015 examiner found no likely TBI at all in light of the inconsistencies in the Veteran's narratives of her past injuries, manifestations, and symptoms since the injuries. The examiner also found a diagnosis unlikely in light of the objective testing at the time did not match her subjective complaints. The Board previously denied this claim finding the October 2015 VA examiner's opinion more persuasive than the September 2015 VA examiner's diagnosis. In a March 2021 Memorandum Decision, the Court vacated and remanded the Board's previous denial finding the Board did not provide an adequate explanation for rejecting the evidence indicative of a current TBI diagnosis. In that regard, the Board notes the record does contain conflicting evidence as to whether the Veteran has a TBI and, if so, whether it is related to either or both of the in-service incidences. After service, there are no significant TBI-related complaints until May 2015, decades after service, where she described occipital headaches, nausea, dizziness, loss of balance, and draining in her ears to VA clinicians. She was diagnosed with labyrinthitis and headaches likely secondary to muscle spasm and tenderness in the cervical spine. After noting dizziness for a month in June 2015, she was diagnosed with mild external otitis and dizziness. A July 2015 MRI was provided but demonstrated no abnormalities. Again, the September 2015 VA clinician did indicate a diagnosis of a mild TBI due to at least one episode of TBI. Although this appeared to diagnose TBI due to the in-service incidents, the clinician provided no discussion of whether the MRI findings demonstrated that a TBI was suffered in service and no supporting rationale. Further, the other likely etiologies noted (chronic hypertension and chronic migraines) were not discussed. It is further worth noting, VA outpatient treatment records since this time indicate a "medical history" of TBI. In contrast, the October 2015 VA examiner ruled out the diagnosis of a TBI as noted above. Given the conflicting determinations in the record as to whether the Veteran has a diagnosis of TBI, and in light of the March 2021 Memorandum Decision from the Court, the Board finds a new VA examination to further reconcile the evidence is necessary before a decision may be rendered on the claim. As such, upon remand, a new examination should be afforded the Veteran and an opinion obtained which considers all of the evidence in the claims file. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA TBI examination with an appropriate examiner to determine whether she has had a TBI and the etiology of any current symptomology. Following a review of the record, and any other clinical testing deemed necessary, (i.e., MRI, CT scan), the examiner is asked to address the following: (a.) Whether it is at least as likely as not that the two reported in-service incidents, the June 1981 assault and January 1983 motor vehicle accident, resulted in a TBI. It is noted that the 1981 assault has been variably reported by the Veteran sometimes claimed as occurring in June 1981 by three women and sometimes reported by the Veteran as occurring in August 1981 by one male. For purposes of this report, the examiner should presume an assault occurred as confirmed in the STRs, regardless of the exact details. The examiner is asked to attempt to decipher the extent and nature of the injuries from both incidences as best as possible from the narrative provided from the Veteran and the evidence found in the record. If any contentions made by the Veteran are deemed not credible, the examiner should specifically explain why not. The examiner is asked to specifically discuss: 1. The June 1981 and January 1983 STRs, as well as the service separation examination and report of medical history; 2. The July 2015 MRI results and suggested etiologies; 3. The September 2015 diagnosis of "mTBI;" and 4. The October 2015 VA examination report. (b.) In determining whether the Veteran has current TBI residuals, the examiner should also discuss notations in VA treatment records associating her reported symptomology to various diagnoses (labyrinthitis, otitis externa, cervicogenic headaches, tinnitus, etc.) and her lay statements regarding her experiences. (c.) A complete and fully explanatory rationale should be provided for any opinion. If any opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record, or because the examiner does not have the needed knowledge or training. 2. Thereafter, and after any further development deemed necessary, the claim should be readjudicated with consideration of all evidence of record. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, 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.