Citation Nr: 21014829 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-42 787A DATE: March 15, 2021 REMANDED Prior to August 19, 2015, entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) residuals is remanded. From August 19, 2015, entitlement to separate evaluations for any TBI residuals other than those already separately service connected is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2010 to August 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, these matters were previously before the Board in August 2018 and May 2020, when they were remanded for further development. The Board finds that additional development is needed before the Veteran’s claim can be decided. As noted above, the Board remanded the issues on appeal in May 2020. Specifically, the Board instructed the RO to request authorization and to obtain records from the Veteran Center in Worchester, as well as updated VA and private treatment records. The RO was further instructed to determine whether the Veteran had a VA Vocational Rehabilitation folder and, if so, to associate such with the Veteran’s claims file. See May 2020 BVA Decision. After a review of the evidence of record, the Board notes that the requested Veteran Center records have not been obtained. In this regard, the Board notes that the RO sent the Veteran a letter, dated in May 2020, to request that he complete and return VA Forms 21-4142 and 21-4142a, so VA could obtain outstanding treatment records from Worchester Veteran Center. See May 2020 Subsequent Development Letter. The Veteran responded in a letter, received in June 2020, stating that he was denying the Board’s request for his Worchester Veteran Center medical records. However, the Veteran stated that he would grant permission to speak to his counselor, D.H., who had agreed to provide a written account documenting his professional opinion of the Veteran’s diagnoses. See June 2020 Correspondence. In June 2020, the RO sent the Veteran another letter requesting that he complete and return VA Forms 21-4142 and 21-4142a, so VA could obtain outstanding treatment records from “Vet Center.” See June 2020 Subsequent Development Letter. Thereafter, a July 2020 report of general information shows that the Veteran called VA to respond to the June 2020 letter. To this end, the Veteran stated that he did not want to fill out the requested forms because he was concerned about privacy issues within VA. However, he stated that the rater could contact his Veteran Center counselor, D.H., directly for additional information. See July 2020 VA Form 21-0820 Report of General Information. Although the RO requested that the Veteran provide releases to allow VA to obtain records from the Worchester Veteran Center, the Board notes that no efforts have been made to obtain a statement or other records from the Veteran’s counselor, D.H. Accordingly, the Board finds that a remand is warranted to obtain any outstanding treatment records from D.H., the Veteran’s counselor at the Worchester Veteran Center, as well as any other outstanding treatment records not associated with the Veteran’s claims file. In addition, the Board notes that the Veteran was last provided a VA examination for his service-connected TBI in August 2014. In this regard, the Board notes that the Veteran failed to attend a scheduled January 2019 VA examination without providing a reason. See February 2019 Exam Request Modification. However, given the amount of time that has elapsed, and as the Veteran appears to be receiving ongoing treatment for his service-connected TBI, the Board finds that a new VA examination would be probative. Therefore, to ensure that the record reflects the current severity of the Veteran's service-connected TBI and of any residuals of TBI other than those attributable to his other service-connected disabilities, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). However, the Board stresses that VA's duty to assist the Veteran with his claim and to provide a VA examination is a two-way street. His failure to attend a scheduled VA examination without good cause or provide a date for which he is able to attend may relieve VA of its duty to schedule any additional VA examinations relating to his claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matter is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran’s VA treatment facilities, and all private treatment records from the Veteran not already associated with the file, to include any medical records and opinions from D.H. (name redacted to protect the Veteran’s privacy), the Veteran’s counselor at the Worchester Veteran Center. 2. After completion of the above development, schedule the Veteran for a VA examination to determine the current nature and severity of the Veteran’s service-connected TBI residuals. The examiner should identify the nature and severity of all current manifestations of the Veteran’s service-connected TBI residuals. In doing so, the examiner must also complete any indicated examination that addresses any identified residuals of the Veteran’s TBI, including (but not limited to) gait, coordination, and balance issues; erectile dysfunction; headaches, including migraine headaches; and dizziness/vertigo. The examiner should expressly indicate whether the Veteran as any TBI residuals that do not overlap with his service-connected PTSD. (Continued on the next page)   3. The Board emphasizes to the Veteran and his agent that he must cooperate with VA’s attempts to obtain additional evidence in support of his claim. If the Veteran is not willing to submit a release to obtain records from the Veteran Center and/or his counselor, D.H., then the Veteran should obtain and submit any records from these sources that he wants considered in connection with his claim himself. Additionally, the Veteran should report to his scheduled VA examination. Should the Veteran fail to report to the scheduled VA examination, such must be fully documented in the record, to include notice that the Veteran was contacted at his current address of record and properly notified of his scheduled examination. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Justis, Attorney-Advisor 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.