Citation Nr: 21028652 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 15-28 408 DATE: May 11, 2021 REMANDED Entitlement to service connection for residuals of a head injury, to include headaches, is remanded. Entitlement to service connection for a bilateral eye disorder is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) from July 1966 to December 1966, and on active duty from May 1968 to November 1969. The Board remanded the Veteran's claims in October 2018. The Veteran is unrepresented. VA has a duty to fully and sympathetically develop his claims to their optimum before deciding them on the merits. In light of this, and in considering the evidence of record, the Board finds remand is warranted to ensure substantial compliance with our prior remand directives and to address additional errors. 1. Entitlement to service connection for residuals of a head injury, to include headaches, is remanded. For all of the Veteran's claims, remand is warranted to obtain records the Board directed be sought in our October 2018 remand. As discussed in our October 2018 remand, relevant service treatment records appear to be missing from the Veteran's claims file. The Board directed the Agency or Original Jurisdiction (AOJ) to obtain records from Fort Benning, Georgia, Fort Gordon, Georgia, Landstuhl, Germany, Frankfurt, Germany, and Walter Reed Hospital for certain months in 1966 and 1969. The AOJ initially attempted to comply with this directive by seeking the relevant records. See August 1, 2019 request for information. However, the AOJ subsequently limited the request to records from Frankfurt, Germany, Landstuhl, Germany and "Ft. Georgia hospital", the latter of which appears to be an error. See requests from April 17, 2020, May 4, 2020, June 4, 2020 and July 7, 2020. Very limited additional records from Germany were obtained. Additional records from the Forts in Georgia were not added to the claims file, nor from Walter Reed, and the AOJ did not make a formal determination on futility or notify the Veteran of unavailability as directed by our prior remand directive. A remand by the Board confers on an appellant, as a matter of law, the right to compliance with the terms of the remand order and imposes upon VA a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the above, remand is warranted to ensure substantial compliance with the Board's remand directives. Furthermore, the Board previously sought records from Ft. Gordon and Ft. Benning for months in 1966, but the Veteran's personnel records show he was a patient in Ft. Gordon in 1969 after returning from Germany, before returning to Ft. Benning. See military personnel record of assignments (patient in Landstuhl, Frankfurt, and Ft. Gordon between May and June 1969). Similarly, the Board previously sought records from Germany for two months in 1969, but on a VA Form 07-3101, from February 1974, it is noted the Veteran was treated for a nervous condition in Germany in 1968. Therefore, the Board will request the scope of the search be expanded. Additionally, remand is warranted to schedule a new VA examination. The Veteran attended VA headache and traumatic brain injury (TBI) examinations in March 2020. This was prior to the records from Germany being obtained. Moreover, during his TBI and headache examinations, the Veteran did not report headaches. The examiner noted this and relied on it to provide a negative nexus opinion. However, since filing his claim, the Veteran has reported experiencing headaches. See November 29, 2012 statement ("continue to suffer with headaches, some minor, and other times severe"). A reading of the headache examination report does not indicate a historical evaluation was made or that solicitation of the Veteran's headache history was taken. For example, for "Date of onset", the examiner wrote "Not applicable. Veteran does not report headaches." This does not specify whether the Veteran denied ever having headaches or that his headaches have resolved. In other words, the examiner's conclusion is ambiguous, and it is not clear that the examiner has considered "all procurable and assembled data." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Moreover, even if the Veteran's alleged headache disability has resolved, a disability can still be considered a "current disability" if it existed during the period on appeal. Therefore, remand is warranted for an additional examination. The Board reserves judgement on the existence of a headache disability and the credibility of the Veteran's reporting. 2. Entitlement to service connection for a bilateral eye disorder is remanded. In addition to obtaining the outstanding service treatment records, remand is warranted for addendum opinions, as a recent VA examiner provided internally inconsistent opinions and rationales. The Veteran attended a VA eye examination in October 2020. In a Medical Opinion Disability Benefit Questionnaire (MO-DBQ), the examiner noted the Veteran's cataracts are age related. See October 2020 MO-DBQ, questions 1 and 2. As part of a different question, the examiner was asked, "For each identified diagnosed bilateral eye disorder other than a refractive error, to include cataracts, astigmatism, and presbyopia, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disorder had its onset in, or is otherwise related to, the veterans active duty service, to include his claimed 1966 head injury". See October 2020 MO-DBQ, question 5 (emphasis added). In response, the examiner wrote, "Yes began during duty not related to head injury". The examiner did not state which disorder began during duty, and it is not apparent from the examination reports to what the examiner was referring. Additionally, question 6 asked for a medical rationale, and the examiner merely wrote, "Not related". This is inconsistent with the apparently positive nexus opinion given in response to question 5. Furthermore, to the extent that the examiner may have provided a positive nexus opinion for cataracts in response to question 5, this is inconsistent with the examiner's prior statements in the report. In light of the internal inconsistency of the examiner's statements, the Board is unable to rely on the examiner's report and must remand for clarifying statements and opinions. See 38 C.F.R. § 20.904(a). The Board's recognizes that our October 2018 remand language may suggest the Board has made an implicit finding on whether any of the Veteran's possible eye disorders constitute refractive error. To be clear, the Board has made no such finding, and upon remand will seek a medical opinion that addresses this issue. 3. Entitlement to service connection for an acquired psychiatric disorder is remanded. In addition to obtaining the outstanding service treatment records, remand is warranted for an additional examination, as a recent VA examiner mischaracterized or overlooked relevant records. The Veteran attended a posttraumatic stress disorder (PTSD) examination in December 2020. The examiner diagnosed the Veteran with "Neurocognitive disorder due to multiple etiologies". See December 2020 PTSD examination report, page 2. The examiner opined it is less likely than not that the Veteran's psychiatric disorder was incurred in or caused by service. The examiner supported this in part by stating, "Although there are references to military treatment, there are no specific noted symptoms of his military treatment course." See December 2020 MO-DBQ. However, a review of the records received in September 2020 from Germany reveal the Veteran was diagnosed with "Schizophrenic reaction, paranoid type, manifest by flat affect, withdrawn behavior, auditory and possibly visual hallucinations of God, suspiciousness, and confusion". See June 14, 1969 service record (also noting "Predisposition-Severe"). The examiner did not address this record, which contradicts the examiner's finding of "no specific noted symptoms of his military treatment course." The Board recognizes the examiner may have overlooked this record as it was labeled a Military Personnel Record, rather than Service Treatment Record. Regardless, consideration of this record and outstanding records is required. Similarly, a May 3, 1969 service treatment record reveals the Veteran's 1st Sgt though the Veteran was "not mentally normal" and on examination it was noted "[l]ogical reasoning difficult, some break with reality." Accordingly, remand is warranted for additional examination that considers and addresses pertinent records. The Board notes psychoses are a chronic disease capable of presumptive service connection. See 38 C.F.R. §§ 3.309, 3.384 (listing diagnoses that constitute psychosis, e.g. schizophrenia). Therefore, on remand consideration must be given to this theory of entitlement. Additionally, on examination, the examiner should solicit a history of treatment and attempt to reconcile the Veteran's report during the December 2020 VA examination of not receiving post-service psychiatric treatment with a prior statement of receiving care at VAMC in Alabama for a nervous breakdown. See November 29, 2012 statement in support of PTSD. The Board notes the Veteran received inpatient care at a VA facility in Alabama in 1974 for three days and was diagnosed with psychoneurosis. See VA Form 10-1000, with receipt date of February 27, 1974 (stamped April 25, 1974; reported history of headaches). The December 2020 examiner did not mention this treatment in the examination report. If the Veteran contends he received additional post-service psychiatric treatment, the examiner should solicit the approximate dates and locations of such treatment. Moreover, the VA Form 10-1000 refers to treatment in September 1973, but no such VA record of treatment exists. Therefore, remand to seek additional VA records is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records, to include from VA Hospital, Montgomery, Alabama, prior to June 2011. As discussed above, the evidence of record indicates the Veteran received VA treatment in 1973 and 1974 in Montgomery, Alabama. Obtain any outstanding service treatment records, including from Fort Benning, Georgia, Fort Gordon, Georgia, Landstuhl, Germany, and Frankfurt, Germany, and Walter Reed Hospital in 1966, 1968 and 1969, from any appropriate source. Such may include requesting clinical records, which are usually filed under the facility name rather than a service member's name. All reasonable attempts should be made to obtain such records. If the AOJ concludes that the records sought do not exist or that further efforts to obtain those records would be futile, 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. 2. Schedule the Veteran for a VA examination for his claimed traumatic brain injury and headache disability. The examiner must review the claims file including this remand. The examiner is asked to provide a response to the following: Solicit a history of the Veteran's alleged headache disorders and symptoms. Identify any headache disorder the Veteran has had since filing his claim in March 2012. For each identified disorder, is the disability at least as likely as not related to service, including but not limited to the claimed 1966 head injury. For each identified disorder, is it at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support the opinions. In providing the requested opinions and rationale, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. In doing so, the examiner should consider the Veteran's reports of headaches in 1974 and 2012 as well as witness and self reports of the Veteran's head injury in 1966 and subsequent treatment. See June 2011 buddy statement (marked received September 12, 2018. The examiner is reminded that even if a headache disorder has resolved since the Veteran filed his claim, it is still considered a current disability and should be addressed. 3. Obtain addendum statements and opinions from an appropriate clinician regarding the following: Identify all of the Veteran's eye disorders that have existed since he filed his claim. For each disorder, to include cataracts, astigmatism, and presbyopia, specify whether it merely constitutes refractive error. For any other eye disorder, opine whether it is at least as likely as not the disorder had its onset in, or is otherwise related to service. Rationale must be given for the opinions provided. If an additional examination is required to answer any of these questions, then such an examination should be scheduled. 4. Schedule the Veteran for a VA examination for his claimed psychiatric disorder. The examiner must review the claims file. The examiner is asked to provide a response to the following: Solicit a history of treatment and attempt to reconcile the Veteran's report during the December 2020 VA examination of not receiving post-service psychiatric treatment with his November 2012 statement of receiving care at a VAMC in Alabama for a nervous breakdown. Identify any acquired psychiatric disorder the Veteran has had since filing his claim, and opine whether it is at least as likely as not the Veteran has an acquired psychiatric disorder that constitutes a psychosis for VA purposes. See 38 C.F.R. § 3.384. For each disorder, is it at least as likely as not that such disorder had its onset in, or is otherwise related to, the Veteran's service, to include but not limited to his claimed 1966 head injury and 1969 schizophrenic reaction or noted "break with reality". If a psychosis is identified, is it at least as likely as not that the disability (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Provide a rationale to support all opinions. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.