Citation Nr: 21015404 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-08 414 DATE: March 17, 2021 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to increased special monthly compensation (SMC) based on the need for aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1971 to July 1973, and then again from December 1990 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 28, 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. By way of background, the Veteran is already in receipt of a 100 percent rating for other specified trauma and stressor related disorder, effective February 18, 2016 (but initially rated 30 percent effective March 15, 2000 until February 18, 2016), as well as SMC at the statutory housebound rate due to other service-connected disorders independently combined at 60 percent disabling or more. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran psychiatric diagnosis was recharacterized on or before the December 9, 2017 rating decision. The claims were previously before the Board and remanded on October 3, 2018. See BVA Remand (Oct. 3, 2020). The Veteran was issued a Supplemental Statement of the Case (SSOC) on July 10, 2020. See SSOC (July 10, 2020). The Board accordingly reasserts jurisdiction. 1. Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. VA has a duty to assist, which includes providing a medical examination when necessary to make a decision on a claim. 38 C.F.R. § 3.159(c)(4)(i). VA will provide a medical examination or obtain a medical opinion if the record, including lay or medical evidence, contains competent evidence of a disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease that occurred in service, but the record does not contain sufficient medical evidence to decide the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 86 (2006). The Veteran has continuously prosecuted a claim for service connection for a traumatic brain injury, on account of evidence of record of head injuries incurred in active duty, in turn including but not limited to motor vehicle accidents. See generally BVA Remand (Oct. 3, 2020); STR (Dec. 12, 1972) (“In auto wreck three days ago, head thrown forward and then back.”); see also STR (Aug. 12, 1972; Feb. 1, 1973) (evincing neck pain from road traffic accidents). Furthermore, the Board notes that as of the October 2020 remand, evidence of record suggested that the Veteran had Alzheimer’s disease as a result of exposure to blast explosions in active duty service. See BVA Remand (Oct. 3, 2020), at Page 2. The Veteran is service connected for an other specified trauma and stress related disorder, 38 C.F.R. § 4.130, Diagnostic Code 9411, but not for a “major or mild neurocognitive disorder due to traumatic brain injury” or “Alzheimer’s disease,” which each have separate diagnostic codes as other potentially applicable psychiatric disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9304, 9312. After the October 2018 remand, the Veteran submitted to an Initial Evaluation of Residuals of Traumatic Brain Injury. On November 12, 2019, the examiner concluded that the Veteran has no applicable diagnosis of any TBI. See VA Exam ( Nov. 12, 2019 ), at Section I, Question No. 1. Upon solicited addendum in December 2019, the examiner specified that all prior diagnoses of TBI’s or headaches are erroneous because the contemporaneous record was silent as to both in service, and the first evidence of headaches only appeared 23 years after service. See VA Exam (Dec. 17, 2019). However, this opinion appears to be based on an inaccurate factual premise, namely that a possible in-service TBI was not documented. The service treatment records reflect complaints of the Veteran’s head being thrown back and forth in an automobile accident in December 1972. As this opinion appears to be based upon an inaccurate factual premise, it is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). To the extent that this opinion appears to rule out a headache etiology due to absence of evidence from the record, the Board concludes that that portion of the opinion is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination was inadequate where the examiner did not comment on a Veteran’s reports of in-service injury and instead relied on the absence of evidence in a Veteran’s service treatment records to provide a negative opinion). Meanwhile, the Board recognizes that as a layperson with a subjective history of headaches, the Veteran is competent to report such matters within personal knowledge, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); but cf. Davidson v. Shinseki, 81 F.3d 1313 (Fed. Cir. 2009). Finally, to the extent that the Veteran has articulated a belief that service connection is warranted for “TBI’s” from head injuries that otherwise appear to manifest in Alzheimer’s disease or other memory problems, this evidence does not appear to have been properly developed after the October 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). More specifically, the Board notes that while an initial TBI examination was rendered, no subsequent psychiatric examination was performed after remand to ascertain whether any additional diagnoses could be made, and the AOJ also failed to perform any other examination as to headaches or to obtain an etiological opinion as to the Veteran’s headache disorder. For all of the reasons above, the Board concludes that it is precluded from issuing a final determination as to the Veteran’s claim herein. As a result, the claim is remanded. 2. Entitlement to SMC based on the need for aid and attendance is remanded. As the claims for entitlement to service connection for a headache disorder or an additional psychiatric disorder other than what is already service-connected (as was previously claimed as “service connection for residuals of TBI’s”), see supra, may be inextricably intertwined with the Veteran’s claim for increased special monthly compensation based on the need for aid and attendance, a remand is warranted so that the claims may be properly developed. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the claimed residuals of a TBI. The entire claims file must be provided to and reviewed by the examiner, and the examiner must carry out any and all special studies or tests necessary for proper evaluation. The need for further in-person examination is left to the discretion of the examiner. Thereafter, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any current residuals of a traumatic brain injury related to his active military service. The examiner is asked to consider, and discuss as necessary, the July 2015 DBQ and the 2016 and 2017 VA psychiatric examinations noting diagnoses of Alzheimer's disease and TBI and that the Veteran incurred in-service traumatic brain injury. The examiner should also consider the December 1972 service treatment record indicating that the Veteran’s head was thrown back and forth in an automobile accident. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided, the examiner should so state and explain why an opinion cannot be provided. (Continued on the next page)   3. After completing the above development, and any additionally indicated development (to include consideration of whether additional examination is necessary), readjudicate the claims on appeal. If the benefit sought is not granted, furnish a supplemental statement of the case (SSOC) and then return the appeal to the Board, if otherwise in order. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.