Citation Nr: 21070713
Decision Date: 11/24/21	Archive Date: 11/24/21

DOCKET NO. 18-15 373
DATE: November 24, 2021

REMANDED

Entitlement to service connection for a head injury is remanded.

REASONS FOR REMAND

The Veteran served on active duty with the United States Navy from September 1968 to July 1978.  For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service Medal.

This appeal comes before the Board of Veterans' Appeals (Board) from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) 

In June 2019 and July 2021, the Board remanded the case for further development, to include obtaining a VA medical opinion.  In the July 2021 decision, the Board also granted service connection for sleep apnea. 

Unfortunately, there has not been substantial compliance with the Board's previous remand directives.  Another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to service connection for a head injury is remanded.

In the July 2021 remand, the Board directed that the examiner should discuss in his/her rationale the Veteran's statement that he has experienced headaches since the reported head injury during service as well as the May 2017 brain CT scan revealing partially empty sella which the private physician suggested may be related to headaches.  The July 2021 VA examiner did neither, and instead opined that he did not "think that [the claimed in-service injury] was the cause of his chronic headaches...The headaches that he is currently having could be [due to] a variety of reasons..."  The Board finds this opinion and rationale are inadequate.  Moreover, the examiner's conclusion was speculative in nature as it indicated that the headaches "could" be due to other causes.  See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Bloom v. West, 12 Vet. App. 185, 187 (1999).  

Accordingly, an addendum opinion is required regarding the etiology of the Veteran's headaches.  

The matters are REMANDED for the following action:

1. Obtain an addendum VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the etiology of any current residuals of an in-service head injury.  The examiner should be provided a copy of the claims file, including all lay statements and private treatment records submitted by the Veteran.  A review of the claims file should be noted in any subsequent opinion.

Following review of the claims file, the examiner should provide an opinion regarding whether it is at least likely as not (a 50 percent or greater probability) that the Veteran has (or has had at any time during the pendency of this appeal) any residuals attributed an in-service head injury.  

The examination report must include a complete rationale for all opinions expressed.  The examiner should discuss in his/her rationale the Veteran's statement that he has experienced headaches since the reported head injury during service as well as the May 2017 brain CT scan revealing partially empty sella which the private physician suggested may be related to headaches.  

The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

 

 

Evan M. Deichert

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K.L. Blevins, 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.