Citation Nr: 21010573 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 20-09 369 DATE: February 25, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for residuals of traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The appellant had service in the United States Naval Reserve between August 1953 and August 1961. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. This case was previously before the Board in April 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior rating and returned the case to the Board. Entitlement to a disability rating in excess of 10 percent for residuals of TBI is remanded. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the appellant’s claim and to afford him every possible consideration. In April 2020, the Board remanded the appellant’s case, in part, in order to obtain a new VA examination. Pursuant to the Board’s remand instructions, the appellant underwent a VA examination for TBI in December 2020. Following the December 2020 examination, January 2021 email correspondence indicates that the appellant underwent diagnostic testing on January 12, 2021 and that the report was currently pending Veterans Evaluation Services (VES) clarification. It is not entirely clear from the face of the email correspondence that the individual who underwent the testing was the appellant, as the name of the patient does not appear on the correspondence. If the individual is, in fact, the appellant, the outstanding records of the referenced diagnostic testing, and any other updated VA treatment records that might be available, must be obtained for review. See, e.g., Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (holding that VA has a duty to assist in obtaining sufficiently-identified VA medical records, regardless of their relevance). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the appellant has received since the time that such records were last procured, to particularly include any records of diagnostic testing the appellant may have undergone in January 2021, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. If new evidence is obtained that bears on the severity of the appellant’s TBI residuals, make arrangements to have the VA examiner who previously evaluated the appellant in December 2020 review the expanded record and provide a supplemental report regarding the extent to which, if any, the additional evidence impacts on his prior assessment with regard to the current manifestations of the appellant’s TBI. If the December 2020 examiner is unable to provide the information requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the appellant is left to the discretion of the examiner(s) selected to offer the requested opinions. A complete rationale for all opinions expressed must be provided. 3. 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 re-adjudicated based on the entirety of the evidence. If the benefit sought remains denied, the appellant and his representative 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. Kettler, 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.