Citation Nr: 21012064 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-40 302 DATE: March 3, 2021 REMANDED Entitlement to service connection for residuals of a head injury is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1992 to September 1999. He also served in the Navy Reserves from 1999 through January 2019, with periods of active service from January 2010 to February 2011, April 2013 to March 2014, and February 2018 to January 2019. This matter comes to the Board of Veterans’ Appeals (Board) from a decision of the Agency of Original Jurisdiction (AOJ). In April 2015, the AOJ issued a rating decision that denied the Veteran’s claims for service connection for residuals of a head injury. The Veteran timely disagreed in a June 2015 Notice of Disagreement (NOD) and perfected his appeal in an August 2017 VA Form 9. In August 2020, a Board hearing was conducted. The hearing transcript has been associated with the Veteran’s file. Entitlement to service connection for residuals of a head injury is remanded. The Veteran contends he injured his head while in the Navy Reserves and during a period of inactive duty for training. See June 2015 NOD at 1. Although the Board regrets the delay, the Veteran’s claim must be remanded for a new medical opinion before the Board is able to decide on the merits. A new opinion is required because the one in the record is insufficient to evaluate and decide his claim. The VA has a duty to assist claimants and must make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for benefits.” 38 U.S.C. § 5103A(a)(1). And part of that duty to assist includes the duty to conduct an adequate medical examination. 38 U.S.C. § 5103A; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). An adequate examination is “based upon consideration of the veteran’s prior medical history and examinations and also describes the disability in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical examination that is based on an inaccurate factual premise lacks probative value, Reonal v. Brown, 5 Vet. App. 458, 461 (1993), as does an examination that merely lists facts and conclusions with no reasoned explanation connecting the two, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (explaining that a medical report cannot merely draw conclusions from data; rather, it should include “a reasoned medical explanation connecting the two”). In September 1999 the Veteran separated from the Navy. Then he joined the Navy Reserves where, one of his responsibilities, involved a leading a fast patrol boat unit. See September 2001 Fitness Report & Counseling Record at 1. During a period of inactive duty for training, he and his boat crew were tasked to act as an enemy force and engage Navy ships. To that end, the Veteran’s boat maneuvered at sea at a high rate of speed; while doing so, it crashed into a wave, which caused the Veteran to collide with another boat crewmember. The Veteran hit is head against another sailor’s head during the collision. See Transcript dated August 2020 at 3; Memorandum, Commander Naval Reserve Force, to Veteran, subject: Acknowledgement of Naval Reserve Related Injury (August 7, 2001). After the Veteran’s head injury, he demonstrated slurred speech, expressed blurred vision, and was transported to a hospital. See September 2020 Statement of P.C.R. In July 2014, the VA received medical records pertaining to the June 2001 head injury, to include records noting the Veteran suffered a concussion. Also, a fracture of the orbital rims, lateral wall of the right frontal. See June 12, 2001, Private Medical Record and CT Report by J.M.H., MD. In April 2015, the Veteran underwent a disability examination to evaluate whether he suffered a traumatic brain injury (TBI). The examiner acknowledged the Veteran suffered a head injury in June 2001. See April 2015 VA DBQ at 2. The examiner also noted he viewed the Veteran’s file. The examiner did not indicate that the Veteran reported observing symptoms, to include headaches, impairment of memory, or irritability. Id. at 3-5. Then, the examiner concluded he could not diagnose an in-service TBI. Id. at 9. The examiner indicated that the Veteran’s service medical records prior to 1996 did not support that finding. Also, he could not conclude the Veteran had a TBI based on the Veteran’s lay assertions, alone. Id. The examiner did not address the medical records after 1996. Nor the medical records associated with the 2001 head injury. During the Veteran’s August 2020 Board hearing, he asserted that, since his 2001 head injury, he observed symptoms, to include headaches, impairment of memory, and irritability. See Transcript dated August 2020 at 4, 6. Also, he had reported observing those symptoms to the examiner; he expressed concern in finding out his reports were not included in the disability examination report. Id. at 9. In September 2020, the VA received lay statements from the Veteran’s spouse. Also, a statement from a friend who observed the Veteran the day the 2001 head injury occurred. Turning to the Veteran’s claim for disability compensation, in light of the Veteran’s testimony it is unclear whether the examiner who provided the April 2015 medical opinion considered his lay observations and all the medical records in the file at that time. Beginning with examiner’s file review, even though he acknowledged the 2001 head injury, he explained that he could not diagnose TBI based on records before 1996. Without more, it is not apparent to the Board whether or not he considered the private medical records associated with the event. So, it is not clear he was aware of all the relevant details of the Veteran’s past medical history. Nieves-Rodriguez, 22 Vet. App. at 301. Also, the Veteran testified he reported his observed symptoms to the examiner but did not see them in the examination report. There is no need to examine whether that is the case because, even if the Veteran had not reported his observations, the records associated with the 2001 head injury note symptoms, like a concussion, that were not acknowledged or considered. See June 12, 2001, Private Medical Record; April 2015 VA Medical Opinion at 9. Because of those deficiencies, the examination was not sufficient to decide the Veteran’s claim. Barr, 21 Vet. App. at 311. The Board notes a new disability examination will have the added benefit of the newly submitted lay statements, which will help ensure the Board’s evaluation of the Veteran’s disability is a fully informed one. Id. Accordingly, the VA should schedule the Veteran for a new examination that evaluates his head injury. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his head injury. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner or examiners should provide an opinion as to the following questions: a. Is it at it at least as likely as not (50 percent or greater probability) that the Veteran’s residual of a heady injury is related to a head injury incurred in June 2001, while in the Navy Reserves? b. Is it at it at least as likely as not (50 percent or greater probability) that the Veteran’s residuals of a head injury are related to any other injury incurred during an active duty service period? His active duty service periods are May 27, 1992, to September 30, 1999; January 15, 2010, to February 16, 2011; April 12, 2013, to March 11, 2014; February 2, 2018, to January 19, 2019. Provide a rationale to support the opinion(s). The examiner, in coming to his or her conclusion, is asked to comment on the following: i. Discuss the Veteran’s private medical records generated around the time of the June 2001 injury. Those records include a June 12, 2001, CT report by J.M.H., MD, noting fractures of the orbital rims, lateral wall of the right frontal sinus and congenital asymmetry of the right orbital floor and right maxillary sinus; and a June 12, 2001, record noting “head trauma/concussion.” ii. Discuss the Veteran’s August 2020 testimony that, immediately after the 2001 head injury, he observed an (1) an inability to focus his eyes; (2) an inability to speak appropriately, to include slurred speech; (3) bleeding out of both nostrils; (4) nausea; (5) vomiting; and (6) sensitivity to light. iii. Consider and note recognition of the eyewitness account of P.C.M., that, following the June 2001 head injury, the Veteran exhibited slurred speech, expressed he had blurred vision and his sinuses bled. Also, after the accident, the Veteran has had recurring sinus issues and expressed having memory problems. iv. Discuss the Veteran’s August 2020 statement that he observes memory impairment. As examples, he reported he has to refer to old e-mails or prior drafts of his work to refresh his memory about their subject matter; he forgets details about TV shows after days have lapsed since he saw it. v. Discuss his report that he observes infrequent headaches and recurring sinus injections on the side of his face that impacted with another sailor. Also, difficulties sleeping, insomnia, irritability, and a quick temper. He reports the headaches were not severe enough to seek medical attention. vi. Consider and note recognition of the observations of the Veteran’s wife. She states that, after the 2001 head injury, she observed behavior changes in the Veteran, to include (1) he is much more irritable, (2) it takes longer for him to recall things, (3)he has difficulty sleeping, and (4) he forgets things, like timelines, which he never used to before the event. She added that he has had many sinus infections since his 2001 head injury, usually precipitated by swelling around his right eye: she described it as looking like he was punched in the eye. She reported she heard the Veteran complain of memory problems after the event. In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dean, Michael S. 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.