Citation Nr: 21010847 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-51 516 DATE: February 25, 2021 REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for a brain tumor is remanded. REASONS FOR REMAND The appellant is a veteran (the Veteran) who had active duty service from September 1965 to May 1969. This appeal comes before the Board of Veterans’ Appeals (Board) from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In August 2019, the Board denied these claims, as well as a claim of entitlement to service connection for bilateral hearing loss. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Veterans Court). In September 2020, the Veterans Court vacated and remanded, in part, the Board’s August 2019 decision. The parties to the Joint Motion for partial remand agreed that the Board’s denial of entitlement to service connection for bilateral hearing loss should not be disturbed. Entitlement to service connection for TBI. Entitlement to service connection for a brain tumor. The parties to the Joint Motion agreed that vacatur and remand were warranted because the Board improperly substituted its own judgment for medical judgment regarding whether the Veteran sustained a TBI during service. The parties additionally agreed that the Board erred when it failed to ensure that VA complied with its duty to assist regarding a nexus opinion for the Veteran’s brain tumor. The parties agreed that remand was warranted for the Board to conduct a proper analysis as to whether an examination or opinion is warranted to address whether the Veteran’s brain tumor is related to service. The parties also agreed that remand was warranted because the Board did not set forth an adequate statement of reasons or bases regarding whether the Veteran sustained a TBI during service. The parties agreed that the Board does not possess the specialized training and education that is requisite to opine that a loss of consciousness and normal findings of a head examination at separation are not evidence of a TBI, nor does it have the competence to state that loss of consciousness alone cannot substantiate the occurrence of a TBI. Again, the parties agreed that, on remand, the Board must reevaluate the evidence and address whether a medical opinion is needed to determine this issue. Because the stipulations of the parties strongly indicate that a medical opinion is necessary, the Board must remand these claims to obtain an examination and/or opinion. The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the nature and etiology of his claimed TBI and brain tumor. The relevant documents in the claims file should be made available to the VA examiner. The VA examiner is requested to offer opinions responsive to the following: a) whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran sustained a TBI during service based on the assertion losing consciousness while in a bunker that was struck by a rocket; and if so, whether it is at least as likely as not that he currently manifests the residuals of the TBI sustained therein? b) whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the brain tumor was incurred in or as a result of the Veteran’s active duty service, to include herbicide exposure and/or that a TBI was incurred in service. 2. Readjudicate the remanded claims. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp 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.