Citation Nr: 21027501 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-44 421 DATE: May 5, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) is remanded. Entitlement to service connection for a traumatic brain Injury (TBI) with headaches is remanded. REASONS FOR REMAND Veteran served on active duty in the Army from June 2000 to July 2000 and on active duty in the Marine Corps from March 2005 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2014 and May 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the evidentiary claims file. While the RO characterized the service connection claim for PTSD as being on appeal from a May 2015 rating decision, additional evidence pertinent to this issue was associated with the claims file within the one year appeal period of the May 2014 rating decision. See VA 21-526EZ, received in February 2015. Therefore, the May 2014 rating decision is not final. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). The claim has been characterized accordingly. Review of the evidentiary claims file shows the Veteran has been diagnosed with PTSD, depressive disorder, and anxiety, in addition to chronic headaches that are secondary to TBI. He asserts that the disabilities are due to his military service. The Veteran testified that he was bullied by superior officers in the Marine Corps, and the abuse led to unsatisfactory performance because he lost faith and focus in what he was doing and struggled to hang on but did not feel like he was a part, which led to an other than honorable character of discharge. See February 2013 Board Hearing, at page 8-11. He further testified that he was close to an artillery round that accidently discharged during training at Camp Lejeune, that caused a percussion and left him shaken up and with a serious headache. Id, at 3-5. The Board finds that the Veteran is competent to attest to factual matters of which he has first-hand knowledge of experiencing during service, including feeling like he was struggling to hang on, being shaken up from the percussion, and having a headache. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board notes the Veteran has not been afforded a VA examination to determine the nature and etiology of his psychiatric disorder or TBI. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). Therefore, the issues are remanded to afford the Veteran a VA examination to determine the nature and etiology of his psychiatric disorder, to include PTSD, and TBI with headaches. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records relevant to the Veteran's psychiatric disability, to include PTSD, and TBI with headaches. 2. Then, schedule a VA examination to determine the nature and etiology of the Veteran's psychiatric disability. The complete record, to include a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Identify any current psychiatric disorder. (b.) Is it at least as likely as not (a 50 percent or greater probability) that any psychiatric disability had its onset during active service or is etiologically related to the Veteran's active duty service? (c.) The supporting rationale for all opinions expressed must be provided. The examiner should consider and address the Veteran's lay statements and medical records, specifically noting that bullying caused him to feel lost and lose focus, and the stressful events are a stressor for his psychiatric disability. See e.g., February 2015 Bedford VAMC treatment records. 3. Schedule a VA examination with an appropriate provider to determine the nature and etiology of the Veteran's TBI disability. The complete record, to include a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. The examiner should respond to the following: (a.) Identify any current TBI disability, to include headaches. (b.) If the Veteran has a TBI disability, is it at least as likely as not (a 50 percent or greater probability) that any neurological disorder had its onset during active service or is etiologically related to the Veteran's active duty service, to include the effects of being close to an artillery round when it was discharged. (c.) The supporting rationale for all opinions expressed must be provided. The examiner should consider and address the Veteran's lay statements and medical records, specifically noting that he felt shaken by the percussion from the discharged artillery round and had a serious headache. See e.g., March 2015 Bedford VAMC TBI evaluation. 4. After the above and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.