Citation Nr: 21072786 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-07 144 DATE: December 6, 2021 REMANDED Entitlement to service connection for lumbosacral strain is remanded. Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2006 to February 2010. This matter comes before the Board of Veterans' Appeal (Board) from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in July 2021. A transcript of the hearing has been associated with the Veteran's VA claims file. Entitlement to service connection for lumbosacral strain. Entitlement to service connection for residuals of TBI. Appellants are entitled to initial review by the RO of evidence added to the file by the VA, and waiver of such review may not be presumed. See 38 C.F.R. §§ 19.31, 19.37(b) and 20.1305(c). Here, additional evidence has been added to the file by VA since the Statement of the Case (SOC) was issued in November 2017. Notably, VA treatment records were associated with the claims file as recently as October 2020. These records discuss the Veteran's lower back condition and are relevant to his claim. In October 2021, the Board sent the Veteran a letter notifying him that the newly associated evidence had not been reviewed by the AOJ. The letter further indicated: You have 45 days from the date of this letter to respond. If we have not heard from you by the end of the 45-day time period, we will assume that you do not wish to have the Board decide your appeal at this time, and we will remand your appeal to the AOJ for review. The Veteran did not respond to the Board's letter requesting a waiver of AOJ consideration of the newly associated evidence. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with a claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Therefore, remand is necessary for the AOJ to issue a supplemental statement of the case (SSOC) that considers any additional relevant evidence of record. In addition to the foregoing, the Board finds that a remand is also needed in order to obtain a medical opinion on the etiology of his residuals of TBI. In an April 2014 Initial Post Traumatic Stress Disorder (PTSD) DBQ, a psychologist noted a history of mild TBI. The Veteran, and his acquaintance, reported that he has experiences headaches, confusion, and memory problems since service. See July 2021 Hearing Transcript; see also November 2020 Lay Statement. During active duty service the Veteran complained of headaches. See a February 2006 Service Treatment Record. Finally, although a VA medical opinion on the etiology of the Veteran's spine disability was obtained in April 2014, the opinion appears internally inconsistent. Specifically, the report states that there was no evidence of in-service complaints or treatment for a back disability but also notes that the Veteran reported back pain at the time of a post-deployment health assessment. A new examination is necessary. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran's claims file. 2. After completing the action requested in item 1, arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a TBI or TBI residuals that had their clinical onset during service or are due to an event or incident of the Veteran's period of active service. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. In rendering the opinion, the examiner's attention is drawn to the Veteran's STRs, April 2014 Initial PTSD DBQ, November 2020 Lay Statement, and July 2021 Hearing Transcript. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford, 3 Vet. App. 87, 89 (1992). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the action requested in item 1, schedule the Veteran for a VA examination to determine the nature and likely etiology of the Veteran's lumbar spine disability. The Veteran's claims file must be made available to the examiner. The examiner should indicate whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed hearing loss had causal origins in service or is otherwise related to the Veteran's active duty service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran's statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. 4. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a SSOC and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Oquendo, L., 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.