Citation Nr: 21072137 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-52 078 DATE: December 2, 2021 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1974 to March 1978. Most recently, in April 2019, the Board remanded this claim back to the local Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ), to obtain all outstanding treatment records relevant to this claim and then for a VA examination and needed medical opinion concerning the nature and etiology of this claimed head injury and consequently residuals, especially in terms of whether related or attributable to the Veteran's service. To this end, he underwent a VA examination in January 2020; however, as will be discussed, the report of the evaluation does not provide the necessary information to address the determinative issue of causation, so the additional development directed to occur on remand regarding this claim has not been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The January 2020 VA examiner confirmed the Veteran has residuals of a TBI but concluded they are less likely than not related to his service because there is no evidence of a TBI in his service treatment records (STRs). However, the Board finds the January 2020 VA examination and opinion inadequate since the examiner relied primarily if not exclusively, on the mere absence of diagnoses, treatment, or symptoms in the Veteran's STRs for disassociating this claimed condition from his service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination was inadequate where the examiner did not comment on the appellant's report of in-service injury and, instead, relied on the absence of evidence in the STRs to provide a negative opinion). In addition, when addressing the issue of secondary service connection meaning whether the Veteran's already determined to be service-connected headaches either caused or aggravate his TBI the examiner concluded unfavorably but did not provide any rationale for his conclusion, which is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). As such, more medical comment is needed before deciding the appeal of this claim. Accordingly, this claim is REMANDED for the following action: Obtain still more medical comment (addendum opinion) concerning the nature and etiology of the Veteran's TBI. A copy of this remand and all relevant medical and other records must be made available to the examiner to assist in this determination. The examiner should review the pertinent evidence, including the Veteran's lay assertions. The examiner must provide rationale for the medical opinion offered, irrespective of whether favorable or unfavorable to the claim. The examiner should answer the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) the Veteran's TBI occurred during his service from July 1974 to March 1978 or is otherwise related to his service? (b.) Is it at least as likely as not (50 percent or greater probability) the Veteran's already determined to be service-connected headaches caused OR aggravate his TBI? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the Veteran's TBI by his service-connected headaches. If it is necessary to have the Veteran re-examined to provide this additional comment, then have him re-examined. This is left to the examiner's discretion. Rationale for the responses is essential, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. The examiner is advised that the Veteran is competent to report his symptoms and history, and these reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason for doing so must be provided. The absence of evidence of treatment for a TBI in the Veteran's service treatment records (STRs) cannot, alone, be sufficient rationale for providing an unfavorable opinion, certainly not in the context of secondary service connection (as opposed to direct service connection), although it is permissible to consider this as one of several factors, provided there also is explanation of why it is reasonable to have this expectation of more documentation of relevant symptoms, findings, etc., prior to initial diagnosis. If the examiner is unable to provide an opinion without resorting to mere speculation, an explanation as to why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered should be provided. In other words, merely saying that he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mukherjee, Cameron B. 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.