Citation Nr: 21069346 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-27 355 DATE: November 18, 2021 REMANDED Entitlement to service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Although the Board regrets further delay, remand is necessary to ensure compliance with previous remand directives and proper development. When there is not substantial compliance with Board remand requests, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). TBI As part of the May 2021 Board remand, the RO was required to obtain a medical opinion on whether the Veteran currently has a TBI or residuals thereof, and if so to determine their etiology. The examiner was specifically instructed that their opinion could not be based solely on a lack of contemporaneous records. The Veteran was provided with a September 2021 Medical opinion regarding the etiology of his claimed TBI residuals. The Board notes that the examiner found the requested opinion to be unclear, did not indicate whether the Veteran has a current TBI, did not document whether the Veteran had current TBI residuals, and based their opinion solely on an absence of contemporaneous records. Additionally, the examiner indicated that the Veteran had a cerebrovascular accident (CVA) in 2018 and that any sequelae from this stroke should not be attributed to the Veteran's claimed TBI. However, the examiner did not opine what, if any, effect the Veteran's CVA would have had regarding diagnosing the etiology of his claimed condition. Finally, the Board notes that the examiner relied, in part, on a prior Board decision which denied the Veteran's claim. However, the Board notes that this decision was the subject of the Court of Appeals for Veteran's Claims' (Court) September 2020 Joint Motion for Remand which reversed and remanded the prior Board denial. Based upon the above, the VA examiner did not adequately assess whether the Veteran has a claimed TBI and whether it is etiologically related to his active-duty service. The matters are REMANDED for the following action: Obtain a medical opinion from a licensed neurologist, or other qualified specialist, who has yet to opine on this case, with sufficient expertise to comment on the etiology of the Veteran's claimed TBI. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to the following: a) whether the Veteran at least as likely as not (a 50 percent probability or greater) has residuals of a TBI. b) if yes, whether it is at least as likely as not (a 50 percent probability or greater) that any manifested TBI residuals are etiologically related to the Veteran's active-duty service. The examiner's attention is drawn to the Veteran's 2018 CVA. Further, the examiner is instructed not to rely on the Board's prior decision denying entitlement to a TBI in rendering their opinion. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran's competent lay statements made throughout the record. In rendering an opinion, the examiner is instructed that the Veteran's lay reports may not be rejected solely due to an absence of contemporaneous medical documentation. Further, the Board cautions the examiner that the Veteran's lay assertions related to his claim are contained throughout the claims file in several lengthy statements. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. If the clinician advises that an examination is needed to provide the requested opinion, then the AOJ will take prompt steps to arrange an examination at the penal facility if the Veteran is still incarcerated. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.