Citation Nr: 21008435 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-45 877 DATE: February 17, 2021 REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1986 to August 1986 and from January 1991 to May 1991, with additional inactive service in the United States Marine Corps Reserves. In July 2019 the Veteran testified at a video conference hearing (hearing) before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. This matter was previously remanded by the Board of Veterans Appeals (BVA) in March 2020 for additional development. It now returns for further appellate review. While on remand, the Regional Office (RO) granted service connection for a lumbar spine disability in an October 2020 Rating Decision. Thus, the service connection claim for lumbar spine disability is no longer before the Board because a grant of service connection constitutes a full grant of benefits on appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). 1. TBI As noted above, this matter was previously remanded in March 2020 to obtain a VA examination and opinion for the Veteran’s TBI. Unfortunately, the Board finds another remand is necessary in order to obtain a new VA examination and an addendum medical opinion for the Veteran’s TBI claim because the October 2019 VA medical opinion is inadequate as further discussed below. The October 2019 VA examiner opined that the Veteran did not have a diagnosis of TBI. See October 2020 Initial Evaluation of Residuals of Traumatic Brain Injury Disability Benefits Questionnaire (DBQ). However, it is unclear whether the examiner reviewed the Veteran’s claims file which reflects a diagnosis of TBI. Specifically, in January 2014, the VA physician noted that the Veteran’s “MRI [was] consistent with left frontal TBI.” See January 2014 VA Mental Health Clinic Note in CAPRI received April 2019. Additionally, an April 2020 VA psychiatric treatment record confirms a history of TBI with loss of consciousness. See April 2020 VA Behavioral Medicine Consult in CAPRI received May 2020. In providing her opinion that that Veteran did not have a diagnosis of TBI, the examiner did not provide a rationale or address the notations of TBI in the Veteran’s VA treatment records. As such, the October 2020 VA examination is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (A medical examination and opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.) Additionally, the October 2020 VA examiner stated that the Veteran was not exposed to any blasts. See October 2020 VA Initial Evaluation of Residuals of TBI DBQ. The Board finds this opinion was based on an inaccurate factual premise, because the Veteran has provided credible lay statements regarding his injury from being blown away by a mortar attack. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.) The Board also notes that the Veteran was granted service connection for post-traumatic stress disorder (PTSD) in a July 2016 Rating Decision in part due to his stressor of being in Saudi Arabia when an enemy column of tanks approached the Veteran and six Marines and opened fire. See June 2016 Rating Decision. The Veteran also reported that a mortar landed close to him and blew him away. Id. As such, the Veteran’s statement regarding being involved in a mortar attack or exposure to a blast is deemed competent and credible. Importantly, the Board reiterates that the Veteran is entitled to the combat presumption because his TBI was incurred while being engaged in combat in Operation Desert Storm during the Gulf War. Accordingly, the Veteran’s in-service TBI as well as in-service injury resulting from a mortar blast has been conceded because a TBI injury and mortar attack are consistent with the circumstances of the Veteran’s combat service. See 38 U.S.C. § 1154 (b); Reeves v. Shinseki, 682 F. 3d 998 (Fed. Cir. 2012). Thus, based on the foregoing, the Board finds that a remand is warranted for a new VA examination and medical opinion concerning the nature and etiology of the Veteran’s claimed TBI. The Board notes the claims file reflects that the Veteran has been receiving treatment from the Houston VA Medical Center (VAMC), to include the Tomball Community Based Outpatient Clinic (CBOC), and that records dated through September 2020 are associated with the file; however, more recent records may exist. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain the Veteran’s comprehensive VA treatment records for the period from September 2020 to the present, to include from VA medical centers, clinics, counseling centers, hospitals, and outpatient treatment centers.  See 38 C.F.R. § 3.159(c)(3) (2020).  The Board observes that the Veteran has been treated at various VA facilities, to include Houston VAMC, and Tomball CBOC.  2. Schedule the Veteran for a NEUROLOGICAL examination to determine the nature and etiology of his current symptoms, BY AN APPOPRIATE MEDICAL PROFESSIONAL to include any TBI residuals by an examiner OTHER THAN THE OCTOBER 2020 VA EXAMINER. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed, and the entire claims file should be reviewed. The examiner should address the following: (a.) Whether the Veteran has a current diagnosis of TBI or TBI residuals. i. If the examiner finds that the Veteran does not have a current TBI diagnosis or residuals of TBI, the examiner must reconcile that finding with the TBI diagnoses of record. See i.e. January 2014 VA Mental Health Clinic Note in CAPRI received April 2019 (noting MRI report confirming TBI diagnosis) ii. If the examiner finds that the Veteran no longer suffers from TBI, explain whether it is in remission or not. iii. In determining whether the Veteran has or had TBI or TBI residuals, the examiner must also address the Veteran’s residual symptoms the Veteran experienced including but not limited to dizziness, vertigo, or impaired cognitive function or memory. iv. The examiner is also asked to differentiate TBI symptoms from PTSD symptoms such as memory loss, or provide an explanation if unable to do so. (b.) If the Veteran has a current diagnosis of TBI or residuals of TBI, assuming that the standard is at least as likely as not (50 percent probability or greater) opine: i. Is it possible that the current TBI or TBI residuals is related to the CONCEDED TBI THAT OCCURRED IN SERVICE (i.e. whether there is a nexus between the Veteran’s in-service TBI is related to his current TBI or TBI residuals, such as, is the Veteran’s TBI a chronic condition that persisted after his service?); or ii. Is it possible that the current TBI or TBI residuals was caused by the CONCUSSIVE MORTAR BLAST FROM A MORTAR ATTACK WHILE SERVING DURING OPERATION DESERT STORM IN THE GULF WAR (acknowledged by VA in a July 2016 rating decision granting service connection for PTSD). • Does the Veteran’s current disability align with how this type of disease or disability is known to have developed if it continued since separation from service? Is it consistent with medical knowledge or implausible? • In providing the opinion, the examiner must consider as an established fact that the Veteran was involved in a mortar attack during Operation Desert Storm. • THE EXAMINER MUST DISCUSS THE VETERAN’S LAY STATEMENTS REGARDING HIS SYMPTOMS AND THE VETERAN’S REPORT OF HIS IN-SERVICE INJURY (WHICH HAS BEEN CONCEDED). S/HE SHOULD OUTLINE THAT HISTORY IN THE REPORT. • Any opinion expressed by the VA examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering this determination, the VA examiner should identify and specifically cite each reference material utilized.  • If the VA examiner(s) is/are unable to offer an opinion without resorting to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided.  3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL.  IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED.  IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION.  YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, 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.