Citation Nr: 21073521 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-15 515A DATE: December 8, 2021 REMANDED Entitlement to service connection for a head injury with seizures is remanded. REASONS FOR REMAND The Veteran had honorable active service with the United States Navy from January 1966 to January 1970. The Veteran also had service in the reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in May 2018. A written transcript of the hearing has been prepared and is associated with the claims file. In November 2020, the Board issued a decision which denied entitlement to service connection for a head injury with seizures. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In August 2021, the Veteran and the Secretary of the Veterans Affairs (collectively, as parties) filed a Joint Motion for Remand (JMR). The parties requested that the Court vacate the Board's November 2020 decision and remand the matter for further consideration and instructions consistent with the JMR. The JMR stipulated that the Board erred by finding that the Department of VA satisfied its duty to assist when it relied on an inadequate medical opinion and failed to attempt to obtain x-ray records related to in service treatment. The Court granted the JMR in August 2021. Although further delay is regrettable, a remand is necessary for the following development in compliance with the August 2021 Court Remand. The Court found that the July 2019 VA examination and opinions are inadequate. For example, the examiner did not make it clear whether or not the Veteran had a current diagnosis following his head injuries. Moreover, the examiner appeared to reject the Veteran's lay statements with no explanation and the opinions were internally inconsistent, finding that the Veteran had no current disability but that the condition also pre-existed service. Therefore, a remand is deemed necessary to obtain an adequate opinion. Additionally, a review of the claims file reveals that there are outstanding service treatment records. The Court noted that the VA never attempted to obtain x-ray records from the Veteran's incident in service where he hit his head in a pool. In light of the missing service treatment records and the heightened duty to assist in cases involving missing service treatment records, a remand is required to obtain these records. The matters are REMANDED for the following action: 1. Take all appropriate actions to attempt to obtain potentially missing service treatment records. Specifically, the VA never attempted to obtain x-ray records from the Veteran's incident in service where he hit his head in a pool. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any outstanding records, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any head injury, or current symptoms of a head injury like seizures. The examiner is asked to perform all indicated tests and studies. A complete copy of the claims file and a copy of this remand must be made available to the examiner. The examiner must consider the Veteran's lay reports of observable symptomatology. The examiner must also take a history regarding the symptoms from the Veteran. After a thorough review of the medical and lay evidence of record, the examiner should address the following: (a.) Does the Veteran have a current disability or current disabilities of a head injury or seizures, listing any conditions the examiner identifies? For example, the Veteran reported hitting his head in a pool and during boxing, both during service. Please consider and discuss any treatment the Veteran has had since service related to a head injury or symptoms like seizures. Noting that a current disability can be established at any time during the claim period even if the disability resolves. (b.) If the Veteran has a diagnosis of a head injury, seizures or a related condition, as discussed above in part (a), is it at least as likely as not (i.e. a probability of 50 percent or more) that the disability had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? 3. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 4. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.