Citation Nr: 21013900 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 13-05 475 DATE: March 10, 2021 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include headaches, is remanded. REASONS FOR REMAND The Veteran had active duty service with the United States Army from December 1981 to December 1984. In March 2015, the Board of Veterans’ Appeal (Board) remanded the appeal. In June 2015, the Veteran testified before a Veteran’s Law Judge (VLJ) during a videoconference Board hearing. A copy of the hearing transcript has been associated with the claims file. The VLJ who held the hearing is no longer employed by the Board. This testimony has been reviewed by the undersigned. In August 2017, the Board dismissed the Veteran’s claims of service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), and bilateral hearing loss because in June 2015 the appellant withdrew these claims as well as Remanded the claim for service connection for residuals of a TBI to include headaches. In April 2018, the Board denied the Veteran’s claim of service connection for residuals of a TBI to include headaches. The Veteran appealed the April 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2019 order, that adopted the parties Joint Motion for Remand (JMR), the Court vacated and remanded the April 2018 Board decision. In January 2021 the Veteran, via his representative, testified at another personal hearing before the undersigned. A copy of the hearing transcript has been associated with the claims file. Entitlement to service connection for residuals of a TBI, to include headaches, is remanded. As to the claim of service connection for residuals of a TBI, to include headaches, the Court vacated and remanded the April 2018 Board decision because the May 12, 2010, VA opinion and the May 13, 2010, addendum it relied upon when adjudicating the claim were not adequate. Specifically, the JMR stated that the May 12, 2010, opinion was not adequate because it “gave no rationale for why Appellant ‘does not currently appear to meet sufficient diagnostic criteria for a TBI-related mental disorder’ … and the May 13[, 2010], opinion pointed only to ‘the preponderance of medical expertise’ (without further explanation) for why Appellant’s cephalgia was not a result of a TBI.” As will be noted below, the evaluation of this possible problem is multifaceted, and has changed over time, making a “adequate” examination problematical. Therefore, the Board finds that a Remand is required to obtain an adequate etiology opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled.). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). Lastly, given the Veteran’s representative’s December 2020 and January 2021 letters to the regional office (RO), while the appeal is in Remand status he should be provided with a copy of the May 2010 VA examiner’s and the post-Remand VA examiner’s curriculum vitae (CV) as well as a copy of the transcript from the January 2021 hearing. See 38 C.F.R. § 19.9. The appeal is REMANDED for the following actions: 1. Provide the Veteran and his representative with a copy of the transcript from the January 2021 hearing. 2. Associate with the claims file any outstanding VA treatment records. 3. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran’s representative should submit any new pertinent evidence that the Board does not have. This would greatly help the Board. 3. In order to comply with the JMR, provide the Veteran with a VA examination to obtain a medical opinion as to diagnoses of any TBI residuals and their origins. The claims folder should be made available to and reviewed by the examiner. Following consideration of the evidence of record (both lay and medical) and the results of the examination, the examiner is asked to address the following: i. Provide diagnoses for all TBI residuals. If the Veteran’s diagnoses do not include cephalgia/headaches and/or an acquired psychiatric disorder, the examiner must say so and explain this finding in light of the other evidence of record including the May 2010 VA examination and addendum. ii. As to each diagnosed TBI residuals, if any, provide an opinion as to whether it is at least as likely as not that it had its onset directly during the Veteran’s service or is otherwise related to any event or injury during his service to include the documented March 1983 injury. iii. If a psychosis is diagnosed, provide an opinion as to whether it manifested in the first post-service year. In providing answers to the above questions the examiner should consider and discuss the March 1983 service treatment record where he was seen at an emergency room for blunt trauma to the bridge of the nose incurred when he hit his head against a tank seat. In providing answers to the above questions the examiner should consider and discuss, among other things, the competent lay claims regarding observable symptomatology to include the following: i. the March 2015 Board hearing testimony in which the Veteran testified that, following his in-service 1983 head injury, he experienced headaches, anxiety, mood swings, behavioral problems and dizziness, along with drug and alcohol problems; and ii. the 2009 witness statements from the Veteran’s siblings and mother who reported that they witnessed a change in the Veteran’s behavior after he returned from service which they attributed to the head injury as well as their claims that after the in-service head injury he complained of headaches and exhibited changes in behavior, including inability to focus and irritability. In providing answers to the above questions the examiner is also advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering the question please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation he or she should so state and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 4. Provide the Veteran and his representative with a copy of the May 2010 VA examiner’s and the post-Remand VA examiner’s curriculum vitae. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.