Citation Nr: 21023718 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-22 249 DATE: April 21, 2021 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI), to include headaches, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1985 to July 1985, from February 1990 to June 1990, and from May 2008 to May 2009, with additional service in the Army National Guard totaling 33 years. Among his many awards and decorations, the Veteran is in receipt of the Bronze Star Medal. This matter was previously before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision. In a September 2018 decision, the Board denied entitlement to service connection for residuals of a TBI. The Veteran appealed this decision to the United States Court of Appeals of Veterans Claims (Court). In a September 2019 Memorandum Decision, the Court set aside the Board’s decision and remanded the matter for further proceedings consistent with the Court’s decision. In September 2020, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A transcript of this hearing is of record. The Board remanded this case in November 2020 for additional development. Unfortunately, the Board is not satisfied that there was substantial compliance with its prior remand instructions; therefore, the appeal must be remanded once again. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Entitlement to service connection for residuals of a TBI, to include headaches, is remanded. The Veteran seeks service connection for residuals of a TBI due to a head injury he sustained in May 1992 during a period of inactive duty training (INACDUTRA). Service records show that the Veteran suffered a blow to the head on May 2, 1992. Specifically, the Veteran reported that during a training exercise, he was riding in an armored vehicle and wearing a helmet when he was struck on the head with the vehicle’s heavy metal hatch door. Medical records document that he sought treatment for a headache a few days after the injury and was assessed to have a concussion and right parietal skull injury, suggestive of possible mild soft tissue injury. However, at that time, the examining physician noted that the Veteran did not lose consciousness or experience vision changes, hearing loss, or weakness or numbness in his extremities and, therefore, there was no evidence of neurologic abnormality. At the September 2020 Board hearing, the Veteran testified that he has experienced frequent severe headaches ever since suffering the in-service head injury. He also stated that he has begun to have other cognitive problems, such as concentration and memory problems. He testified that he did not report or seek treatment for these problems prior to his retirement in 2018 because he feared doing so would jeopardize his careers in the National Guard and as a Deputy Sheriff. In the November 2020 remand, the Board determined that the record does not contain an adequate VA TBI examination performed by a designated specialist (physiatrist, psychiatrist, neurologist, or neurosurgeon), as required by VA adjudication procedures, or an adequate medical opinion addressing the residuals of a TBI reported by the Veteran. The Board notes that in November 2020, a VA examiner, who is a Physician’s Assistant, reviewed the Veteran’s claims file and completed a VA headaches disability benefits questionnaire (DBQ) on the Veteran’s behalf in lieu of an in-person examination. The VA examiner diagnosed the Veteran with post-concussive headaches, but failed to provide an etiology opinion for this condition. The VA examiner did not make any mention of the Veteran’s claimed TBI or residuals. Since this examination was not conducted by a TBI specialist in conjunction with a TBI examination, the Board does not find it to be adequate to resolve the question of whether the Veteran’s headache condition is considered a residual of his TBI. Thereafter, pursuant to the Board’s remand directives, the Veteran was afforded a VA initial TBI examination in December 2020. Upon evaluation of the Veteran, the VA examiner diagnosed the Veteran with a TBI, which the examiner attributed to the May 1992 head injury that occurred during a period of INACDUTRA. On examination, the Veteran reported experiencing current symptoms of headaches, insomnia, memory problems, anxiety, and depression. The Board also notes that private treatment records indicate that the Veteran has sought treatment for dizziness, vertigo, hearing loss, and tinnitus, although he did not report these symptoms to the VA examiner. The Board notes that the VA initial-TBI DBQ specifically instructs the VA examiner to complete the corresponding DBQ for each condition or symptom subjectively reported by the Veteran that may be attributed to a TBI. However, despite the Veteran’s reported symptoms of a TBI, the VA examiner did not complete any other DBQ. Instead, the examiner remarked on the examination report that although “the Veteran has multiple symptoms,… it is less likely than not that those symptoms are residuals of any TBI or aggravation of TBI as a result of military service.” The only rationale provided for this opinion was that “there is no longitudinal treatment record that supports ongoing symptoms resulting from TBI.” The Board finds the December 2020 VA examination to be inadequate. First, the examiner did not complete the corresponding DBQs for the Veteran’s subjectively reported symptoms of residuals of a TBI, as instructed on the initial-TBI examination report and as requested by the Board in the November 2020 remand directives. Moreover, the examiner did not include an adequate rationale for his opinion that the Veteran’s reported symptoms are less likely than not residuals of a TBI. In this regard, the examiner’s finding that “there is no longitudinal treatment record” to support such symptoms fails to consider the Veteran’s numerous lay statements of record as to the continuity of his symptomology ever since the May 1992 head injury, as well as his hearing testimony explaining why he did not seek treatment for headaches, memory problems, and other symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). In light of the above, the Board finds that the record still does not contain a VA examination and medical opinion that is adequate to allow the Board to fairly adjudicate the Veteran’s service connection claim for residuals of a TBI. As such, the claim must be remanded once again because the RO did not comply with the Board’s prior remand directives to obtain an adequate VA examination and medical opinion on the Veteran’s behalf. See Stegall, 11 Vet. App. at 268; see also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). On remand, the Veteran must undergo another TBI examination, with a qualified VA examiner, to determine whether his reported symptoms, to include headaches, are residual to his currently-diagnosed TBI. Accordingly, the matter is REMANDED for the following action: Schedule the Veteran for a TBI examination with one of the four designated specialists: physiatrist, psychiatrist, neurologist, or neurosurgeon. The VA examiner must specifically state which of those credentials applies. The examiner is asked to review the claims file in its entirety and, upon examination and interview of the Veteran, provide the following information with consideration of the relevant service treatment records, post-service medical records, and Veteran lay statements: (a) Identify all signs, symptoms, and conditions subjectively reported by the Veteran to be related or attributed to his currently-diagnosed TBI. The evidence of record indicates that, during the relevant period, the Veteran has reported and/or sought treatment for symptoms including: headaches, insomnia, memory problems, anxiety, depression, dizziness, vertigo, hearing loss, and tinnitus. The examiner must specifically consider and discuss the significance of the following currently-diagnosed conditions: post-concussive headaches (see November 2020 VA headaches examination) and chronic adjustment disorder with depressed mood (see November 2020 VA PTSD examination). (b) Complete the corresponding disability benefits questionnaire (DBQ) for each symptom or condition reported by the Veteran. (c) For each symptom or condition confirmed by the medical evidence of record or diagnosed upon examination, opine whether the condition is at least as likely as not (50 percent or greater probability) caused by or related to the Veteran’s in-service TBI. If the examiner determines that there is another likely etiology for the Veteran’s disabilities, that should be stated and fully explained. The examiner is advised that the Veteran is competent to report his medical history, including the onset of symptoms, and such reports must be acknowledged and considered in formulating any opinion. The Veteran’s lay contentions, to include his Board hearing testimony, must be considered and weighed in making the determination as to whether a nexus exists between the residual disability and the Veteran’s TBI. The examiner must provide a complete rationale for any opinion offered, citing to the examiner’s own expertise, medical principals, and/or evidence in the Veteran’s claims file, when necessary, to support the conclusion reached.   If the requested opinions cannot be rendered without resorting to speculation, the examiner must state 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 the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).   The examiner is reminded that failure to comply with the examination directives outlined herein will render the opinion inadequate and will result in further remand of the Veteran’s claim.  LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.