Citation Nr: 21069815 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-31 034 DATE: November 19, 2021 REMANDED The issue of service connection for residuals of a traumatic brain injury (TBI) is remanded. The issue of service connection for a headache disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1978 to April 1978 and from February 1979 to February 1983. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran participated in a hearing before the undersigned Veterans Law Judge in November 2017, and a transcript of this hearing is of record. In November 2020, the Board denied the Veteran's claims for service connection for residuals of a TBI and a headache disability. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court), which, pursuant to a July 2021 Joint Motion for Partial Remand (Joint Motion), vacated and remanded the Board's denials of service connection for a TBI and a headache disability. The Court identified, in pertinent part, two errors in the Board's November 2020 decision requiring additional development: relying on inadequate medical opinion dated March 2020 and undertaking inadequate efforts to obtain private treatment records. The Board thus remands the Veteran's claims in order to comply with the terms of the July 2021 Joint Motion. The matters are REMANDED for the following action: 1. Pursuant to the terms of the July 2021 Joint Motion, undertake all reasonable efforts to obtain private treatment records from Wuesthoff Hospital and Dr. Richard Newman. After obtaining all necessary authorizations, attempt to obtain these identified records and associate them with the Veteran's claims file. The AOJ should document and inform the Veteran of all efforts undertaken to obtain such records, including If VA is unable to make contact with any identified health care provider, or if no response is received within a reasonable time. 2. Then, pursuant to the terms of the July 2021 Joint Motion, schedule the Veteran for a VA examination with an examiner who has not previously examined the Veteran to determine the nature and etiology of his claimed residuals of a TBI and headache disability. After physically examining the Veteran, conducting any necessary testing, reviewing of the Veteran's claims file, and considering the lay statements of record, the examiner should address the following: (a.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's residuals of a TBI or headache disability had an initial onset during his active service, or that his residuals of a TBI or headache disability is otherwise related to any incident of his active duty service? When rendering this opinion, the examiner must discuss an undated service treatment record showing that the Veteran sought emergency treatment after suffering a head injury with unconsciousness, vomiting, vertigo, and dizziness. The examiner should explain whether this in-service injury relates to residuals of a TBI or a headache disability. The examiner must additionally address the pertinent lay statements of record, including the Veteran's February 1980 allegation that he fainted while standing in formation; his April 1982 allegation that he passed out while flying and blacked out at work; his December 2013 allegation that he suffered frequent headaches and lost consciousness on a plane, and; his November 2017 allegation that he injured his head following a hard parachute landing. The examiner should explain whether these factors relate to residuals of a TBI or a headache disability. The examiner must discuss the Veteran's relevant medical history, including an April 2012 MRI that showed microvascular ischemic changes, an April 2013 MRI that showed white matter hyperintense lesions, a December 2013 note that the Veteran showed "signs of temporal atrophy from an old brain injury", and records from the Social Security Administration indicating a seizure disorder. The examiner should explain whether these records relate to residuals of a TBI or a headache disability. The examiner must discuss the January 2013 private medical record diagnosing the Veteran with TBI and headaches as the result of his in-service experiences. The examiner should explain whether this record relates to residuals of a TBI or a headache disability. (b.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's residuals of a TBI or headache disabilities are proximately due to any of his service connected disabilities, to include posttraumatic stress disorder (PTSD), or the medications used to treat such disability? (c.) Is it at least as likely as not (that is, a 50 percent likelihood or greater) that the Veteran's residuals of a TBI or headache disability underwent an incremental increase in disability, regardless of its permanence, due to any of his service connected disabilities, to include PTSD, or the medications used to treat such disability? The term "incremental increase in disability" means an additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.