Citation Nr: 21021917 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-16 170 DATE: April 14, 2021 REMANDED Entitlement to service connection for traumatic brain injury, claimed as residuals of a head injury is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board), on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously considered this appeal in October 2018 and March 2020 and remanded this issue for further development including scheduling a VA examination. The case returned to the Board for further appellate review. 1. Entitlement to service connection for traumatic brain injury, claimed as residuals of a head injury is remanded. Although the Board regrets the additional delay, the Board finds that further development is required before the claim on appeal can be decided. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of entitlement to service connection for TBI. The Veteran has asserted that he developed dementia, tremors, seizure disorder, memory loss, depression, fatigue, dizziness, and vision problems as a result of his claimed TBI, which resulted from being hit in the head with a pugil stick “over and over” during basic training. See November 2020 statement. In a December 2014 VA examination for PTSD de examiner noted that the Veteran’s diagnoses of dementia, memory loss and seizures “may be related to military trauma of being hit in the head during basic training, though his records do not contain a medically verified confirmed diagnosis of TBI. He was formally diagnosed as having seizures in 2000.” The examiner opined that it was not possible to differentiate what symptoms are attributable to each diagnosis. The examiner reasoned that the Veteran “experienced combat while serving in Viet Nam, and his electronic records (VBMS) indicate he has PTSD from these experiences. Although he has not been diagnosed with TBI, there is documentation in these same records of him being struck in the head with a pugil stick while in basic training and experiencing loss of balance and dizziness and he now suffers from seizures, which may or may not be related to this injury. It is noted widely in the literature (NIH, VA studies, peer-reviewed Internet sources) that persons with PTSD are twice as likely to develop dementia. Additionally, persons with seizures are more likely to develop dementia, per the National Institutes of Health. It is more likely than not that all of his diagnoses and symptoms are related to his military experiences starting with basic training and continuing through his combat experiences in Viet Nam.” Further, the examiner acknowledge that the Veteran does not have a diagnosis of TBI, but electronic records report that he was hit in the head with a pugil stick during basic training and now believes that the seizure disorder that he has is related to that incident. Pursuant with the October 2018 Board remand, the Veteran was afforded a VA examination for TBI in February 2020. The Veteran was diagnosed with traumatic brain injury. The Veteran reported onset of TBI during service while on duty. The examiner noted symptoms of mild memory loss, headaches, anxiety and insomnia with residuals of headaches, including migraines. No opinion was given on the etiology of his diagnosed TBI with residuals. In an August 2020 VA medical opinion report, the examiner opined that the Veteran’s residuals of a head injury were less likely than not caused by a disease or injury in service. The examiner based his negative opinion on the absence of evidence in the Veteran’s service treatment records of a “significant head injury or treatment for sequelae of head injury during or immediately following service”. Although, the examiner acknowledge that VA treatment records reference a head injury in basic training, he notes that they are unsubstantiated by medical records. The examiner furthermore noted that pugil sticks are soft ended sticks used to simulate bayonet training, designed specifically to prevent injury during the training and opined that is not likely that being hit by a pugil stick would lead to brain injury that would cause dementia and seizures many years later. The Board finds this opinion inadequate for adjudicative purposes. In this regard, the examiner relied solely on the absence of in-service treatment, and post-service treatment for several years as the rationale for the negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, the Board finds that a new VA medical opinion is warranted to address the nature and etiology of the Veteran's residuals of a TBI. Stegall, 11 Vet. App. 268. Further, the Veteran recently provided an article from Los Angeles Times that appears to refute the examiner theory that being hit by a pugil stick would not lead to brain injury. On remand, the examiner must comment on this, and the other articles submitted previously, and whether they support the Veteran's contentions. The matters are REMANDED for the following action: 1. The AOJ should obtain any relevant, outstanding VA treatment records and afford the Veteran the opportunity to submit or identify any relevant, outstanding private treatment records. The AOJ should attempt to obtain any such records for which proper approval has been provided. 2. After associating all newly obtained evidence with the claims file, provide a copy of the file, including a copy of this remand, to an appropriate physician for a VA medical opinion to assist in determining the nature and etiology of the Veteran’s currently diagnosed traumatic brain injury. The claims file should be made available to the examiner, who should indicate on the opinion report that he/she has reviewed the record. The Veteran need not be scheduled for in-person examination unless the reviewer determines such an examination is necessary to address the questions posed by this remand order. After a review of the claims file, the examiner must respond to the following: (a.) is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran's currently diagnosed TBI had its onset in service or is otherwise related to service, to include the Veteran's statements of being hit in the head “over and over” by a pugil stick during basic training? In addressing the above, the examiner must specifically consider and discuss all medical and other objective evidence of record to specifically include the medical articles submitted by the Veteran. A detailed rationale for the opinion must be provided. Review of the entire claims file is required. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.