Citation Nr: 21073035 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 19-10 858 DATE: December 7, 2021 REMANDED Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for traumatic brain injury (TBI) (previously characterized as head and brain trauma) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from October 1980 to April 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his June 2017 notice of disagreement, in addition to the issue addressed herein, the Veteran also attempted to appeal proposed reductions in the ratings for his service-connected cervical spine strain and degenerative arthritis of the lumbar spine. As the May 2017 rating decision on appeal only proposed those reductions, and did not effectuate them, the Veteran's appeal with respect to the rating reductions was premature. The only issue properly presented for the Board's review is as outlined above. In its May 2017 rating decision, the RO found that new and material evidence had been received to reopen the Veteran's claim for service connection for a TBI. However, the Board is required to consider that question independently. See 38 U.S.C. § 7104(b); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In July 2020, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a TBI is remanded. The Veteran first filed a claim for service connection for head and brain trauma in March 2011. A May 2011 rating decision denied the claim. The Veteran did not initiate an appeal within the one-year period following the mailing of notice of the decision. He submitted an application to reopen the claim in November 2016. The Veteran contends that he has a TBI that was incurred in or caused by service. Specifically, he testified at the July 2020 Board hearing that he was involved in a motor vehicle accident (MVA) during service in which he hit his head on the windshield at least once and possibly multiple times. He also testified that he lost consciousness. He further testified that ever since he had been out of service, he had tried to hold jobs but could not, that he had been tied up with the law, had babies out of wedlock, that he now has headaches, and that all kinds of things have happened. He attributes these changes in behavior to an in-service TBI. At the outset, the Board notes that the Veteran's service treatment records (STRs) confirm that he was involved in a MVA during service in June 1982. A June 1982 STR shows an emergency room report in which the Veteran complained of pain on the right side of his neck and a headache, though he denied a loss of consciousness at that time. He was diagnosed with a muscle strain, a cervical muscle spasm, and a contusion of the right upper eyelid. A STR dated just over a week later shows that the Veteran was still having a neck spasm, and a July 1982 STR shows that he continued to have both neck and head pain occasionally. An August 1982 STR also shows that he was still having head and neck pain at that time, and the Veteran reported that medication and physical therapy did not help. He stated to providers that he had a head injury and neck whiplash and reported persisting headache and neck pain. He also reported that since the injury he had been unable to be as punctual as he was prior to the injury. Neurological examination was normal, however, and the provider diagnosed only persisting cervical strain. An October 1982 STR shows that the Veteran was having severe headaches and an inability to remember. The provider diagnosed a history of memory lapse. In an STR dated later that same month the Veteran complained of loss of memory after he noticed that his memory was short. The provider noted the history of the MVA, a history of loss of consciousness, that the Veteran was having brief short-term periods of lapse in memory, and that he was getting lower grades on reading and comprehension examinations. The provider further noted that the Veteran apparently had a momentary loss of consciousness and that since that time had complained of memory lapse but diagnosed a questionable simple partial seizure. A computed tomography (CT) scan from November 1982 was normal. Finally, at his March 1984 separation examination, the Veteran reported that he had had loss of memory, frequent and severe headaches, and a head injury during service. The examiner at the time noted frequent headaches for 8 weeks but stated that they were treated with medications and had resolved. The examiner further noted the MVA and noted that there was a loss of consciousness. The Veteran reported during January 2012 and April 2017 VA examinations that he had been hospitalized for 2 or 3 weeks as a result of the MVA. At the July 2020 hearing, however, he intimated that he was confused when he reported an in-service hospitalization and that he was not, in fact, in the hospital for that period of time, but rather convalescing in his barracks. In this regard, the Board notes that while the RO has obtained the Veteran's STRs, they contain no reports of hospital care following the June 1982 MVA (other than the June 1982 ER visit). However, historically, records of in-service hospital treatment were sometimes stored separately from other records. In view of the Veteran's impairments and his conflicting statements with respect to whether he had in-service hospital care, additional development is warranted. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). Turning to post-service records, a January 2011 CT scan of the head showed no definite abnormality. As part of his previous application for service connection for a TBI, the Veteran was afforded a VA examination in April 2011. He reported being involved in an MVA during service and that he was never able to return to full duty after the accident. On examination, memory impairment was mild, and cognitive symptoms included decreased attention, difficulty concentrating, difficulty with executive functions, and being easily forgetful. While the examiner diagnosed a TBI, she also stated that there were no findings of pathology on the day of the examination, and that the disability had no effect on the Veteran's work function or his activities of daily living. On a VA scars examination the same month, a VA examiner found that a scar on the Veteran's left forehead (for which he is currently service connected) was due to the 1982 MVA. In January 2012, the Veteran was afforded a VA mental disorders examination. The examiner noted that the May 2011 VA examination was negative for a TBI but noted that it was determined at that time that he had suffered from a single TBI injury without sequelae. The examiner did not perform cognitive screening for a TBI, as that was not requested, but she did diagnose status-post TBI on Axis III. The Veteran was also afforded mental disorders VA examinations in December 2013, February 2015, April 2017, and November 2017. On each occasion, the examiners indicated that the Veteran did not have a diagnosis of a TBI. The April 2017 VA examiner also noted that the Veteran reported that he had many problems during service after the MVA, including that he was angry, unable to focus, and could not do his work, and that he had problems with memory, was anxious all the time, and could not sleep. On examination, his cognition was slow and he displayed moderate memory deficits. In December 2015, VA sought a clarification opinion regarding whether the Veteran had a diagnosis of a TBI. A VA psychiatrist reviewed the April 2011 VA examination report and other medical records associated with a TBI and indicated that the Veteran did have a diagnosis of a TBI. Thereafter, some of the Veteran's VA treatment records include TBI in problem lists. The Veteran was also afforded a VA examination specifically in connection with his claim for service connection for a TBI in April 2017. The examiner noted that the Veteran had been involved in an MVA in 1982, and the Veteran reported at the examination that he was thrown through the windshield of the vehicle and suffered a loss of consciousness for an unknown period of time. On examination, the examiner found that there were no complaints of memory impairment, attention, concentration, judgment, social interaction, orientation, motor activity, or any other symptoms. The examiner did note that the Veteran had subjective symptoms of anxiety and moodiness, but stated that he did not believe that those symptoms were a result of any injuries sustained in the MVA. The examiner then offered a negative nexus opinion, finding that the Veteran did not suffer a TBI, as all of his complaints were subjective only. He also noted that there were many inconsistencies in the Veteran's recollection of the accident, that there was no evidence of a loss of consciousness, and that in fact, in the June 1982 STR, the Veteran denied having a loss of consciousness. He also cited to the 2011 CT scan which showed no abnormality, noted that there had been no course of treatment related to TBI following the accident, and that he found no objective evidence to support a TBI diagnosis. A November 2017 VA treatment shows a diagnosis of mood disorder "due to TBI," and an August 2018 VA treatment record shows that the Veteran was seen for cognitive problems "due to a TBI incurred in service" and that he was diagnosed with a TBI. On review of the evidence outlined above, the Board finds that there is no material dispute that the Veteran was involved in an MVA in service, as demonstrated by various STRs, or that he hit his head at that time, as demonstrated by the April 2011 VA examination finding that a forehead scar was related to the accident. The Board further finds, however, that there is a conflict in the evidence regarding whether the Veteran has a current diagnosis of a TBI. Still further, the Board finds that the April 2017 TBI VA examination is not fully adequate because it did not consider all of the relevant evidence of record, and its findings were not entirely consistent with the evidence in the claims file. The examiner does not appear to have considered, for example, that there are many findings related to cognitive and/or memory problems in both the STRs and post-service treatment records. Rather, he appears to have focused only on the fact that the Veteran denied a loss of consciousness in the June 1982 STR. His opinion that the Veteran did not suffer from a TBI at any time is also inconsistent with the April 2011 VA examination report and December 2015 VA medical opinion, both of which find, at a minimum, that he had a TBI at least at some point as a result of the June 1982 MVA. Finally, the examiner's finding that the Veteran had no current symptoms, including cognitive or memory symptoms, is inconsistent with many records showing that he does have those impairments, including the VA mental disorders examination conducted earlier that same month, which indicated that the Veteran's cognition was slow and that he had moderate memory impairments. Under the circumstances, the Board finds that further development should be undertaken to obtain an addendum medical opinion. See Woehlaert v. Nicholson, 21 Vet. App. 456, 463 (2007). Updated records of any VA treatment should also be procured. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency). This matter is REMANDED for the following action: 1. Request through official sources any hospital records that might correspond to any inpatient care the Veteran may have received following the in-service MVA in which he was involved in June 1982. Efforts to obtain the evidence should be fully documented and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 38 C.F.R. § 3.159 (c)(2). The evidence procured, if any, should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to provide the record on appeal to the VA TBI examiner who examined the Veteran in April 2017. The examiner should review the record. After reviewing the record, the examiner should offer an opinion as to whether the Veteran has had any symptoms at any time since November 2016 (when he filed his claim to reopen the previously denied claim for service connection for a TBI) that are at least as likely as not (i.e., are 50 percent or more likely) attributable to a TBI he sustained during service. In so doing, the examiner should consider and address the April 2011 and January 2012 VA examinations; the December 2015 VA opinion; and the December 2016, November 2017, and August 2018 VA treatment records; all of which suggest that the Veteran has or has had a diagnosis of TBI, as well as the December 2013, February 2015, April 2017, and November 2017 mental disorders VA examinations indicating that he does not have a diagnosis of TBI. The examiner should specifically consider and address any findings of cognitive and memory impairments which have been observed to be present during the period on appeal, to include those noted in the April 2017 VA mental disorders examination. The examiner should also consider the Veteran's contention that an in-service TBI caused long-term changes in his behavior following the June 1982 MVA. As to whether the Veteran suffered a TBI in service, the examiner should consider and address the June 1982 STRs related to the in-service MVA; the July 1982 STR showing that the Veteran continued to have head pain; the August 1982 STR showing that the Veteran continued to report head pain, that he had a head injury, and that that since the injury he had been unable to be as punctual as he was prior to the injury; the October 1982 STRs showing problems with memory, lower grades on reading and comprehension examinations, and indicating that there was a loss of consciousness; and the March 1984 separation examination showing that the Veteran reported that he had had loss of memory, frequent and severe headaches, and a head injury during service, as well as the examiner's notation as to headaches and a loss of consciousness. The Board emphasizes that there is no material dispute that the Veteran was involved in a MVA in July 1982 or that he hit his head during the accident. If the April 2017 VA examiner is no longer employed by VA or is otherwise unable to provide the requested opinion(s), arrange to obtain the information from another qualified examiner. The need for another in-person and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Oldroyd, 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.