Citation Nr: 21007158 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-32 797 DATE: February 8, 2021 REMANDED Entitlement to service connection for residuals of a head injury, to include traumatic brain injury (TBI) headaches and cognitive impairment, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1986 to July 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal of an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This appeal was previously before the Board in September 2018, at which time the Board, in pertinent part, remanded service connection for TBI, as well as service connection for right and left knee injuries and vertigo. While on remand, the Agency of Original Jurisdiction (AOJ) granted service connection for right and left knee injuries and vertigo in May 2020. Therefore, as the May 2020 decision represents a full grant of the benefits sought with respect to those issues, such matters are no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that the Board must broadly construe claims. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that, when the Veteran filed her Notice of Disagreement with the denial of service connection for TBI, she recounted an in-service injury and stated that she has had ongoing “severe headaches and excruciating pain” in her back and neck. The Board finds it is more favorable to the Veteran to recharacterize the issue generally as service connection for residuals of an in-service head injury, to include TBI, headaches and cognitive impairment, and to refer the issues of service connection for a neck and back disorder. Accordingly, the issue on the title page reflects the expanded TBI issue and service connection for a neck and back disorder, claimed as due to an in-service injury, are referred to the AOJ for initial adjudication. Residuals of a Head Injury Per the Board’s remand, the Veteran underwent a TBI examination in September 2019. The examiner found that the Veteran did not now, or ever, have a TBI or any residuals of such. In this regard, the assessment of facets of TBI-related cognitive impairment and subjective symptoms of TBI conducted by the examiner was normal in every aspect. However, the examiner noted prior diagnostic testing, conducted in October 2017, during which that examiner rendered diagnoses including “R/O Mild Neurocognitive Disorder due to TBI,” and stated the following: It is difficult to determine the extent to which her history of moderate TBI is contributing to her current functioning, as [the Veteran] was an unreliable historian and collateral information surrounding her functioning immediately following her TBI was unavailable. Any existing cognitive difficulties secondary to her TBI are likely exacerbated by mood/psychiatric issues…” Based on the above, it is unclear whether the Veteran has a diagnosis of TBI—now, or at some point—during the appeal period, which began in May 2012. Moreover, the Board notes that the September 2019 examiner rendered a negative nexus opinion, not on the basis of lack of current diagnosis, but on his conclusion that her in-service injuries did not occur. The Board recognizes that the September 2018 Board remand made an implicit finding that the Veteran’s claimed in-service injuries occurred, and will proceed on that premise. Additionally, the Veteran has asserted she suffers from severe headaches as result of her in-service head trauma. VA treatment records document the Veteran’s reports of chronic headaches that are disruptive to her and have been longstanding, and that a patient-identified goal is to improve her headaches. Accordingly, the Board finds that further examination and opinion is necessary. The matter is REMANDED for the following action: 1. Arrange for a TBI protocol examination of the Veteran by a neurologist to ascertain whether she has any current disability that is a residual of a head injury with TBI in service, to include headaches or other cognitive impairment. The entire record must be reviewed by the examiner in conjunction with the examination, and any testing indicated should be completed. Thereafter, the examiner should respond to the following: (a) Does the Veteran have, or at any time during the pendency of this claim has she had, any symptom, pathology, or impairment, to specifically include TBI, headaches or cognitive impairment, that are at least as likely as not residuals of an in-service motor vehicle accident or 25-foot fall from a helicopter (that are conceded to have occurred)? If so, please identify all such residuals found and the clinical findings that support that conclusion. (b) If the Veteran is determined to not have any symptoms or impairment that are found to be residuals of a TBI in service, but exhibits symptoms such as headaches or cognitive impairment, that could be considered residuals of TBI, explain why they are not related to a TBI in service, and identify the etiology for each such symptom that is considered to be more likely (e.g. an underlying disease). (c) If the Veteran is diagnosed with any residuals of a head injury, the examiner should also state whether she has any symptomatology from that head injury that is distinct and separable from any diagnosed psychiatric disorder(s). If so, the specific symptoms attributable only to the head injury should be noted. A complete rationale must be provided for all opinions. 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.Z., 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.