Citation Nr: 21029559 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-15 245A DATE: May 13, 2021 REMANDED Entitlement to service connection for a brain condition is remanded. REASONS FOR REMAND The Veteran had active duty service from July 1984 to June 1990, September 21 to 23, 2001, January 2004 to September 2004. The Veteran was also a member of the Air Force National Guard until July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This matter is in VA's legacy appeals system. In February 2018, the Veteran testified at a hearing before the undersigned Veteran's Law Judge. A transcript of that hearing is of record. The Board most recently remanded this case in November 2020. Unfortunately, the Board must remand this case once again for the reasons discussed below. The Board sincerely regrets the delay. Entitlement to service connection for a brain condition Because the record reflects considerable confusion over some aspects of the relevant law and their application to this case, a brief summary of relevant portions of the law and evidence is necessary. A Veteran is competent to report lay-observable events and symptoms. Without evidence of relevant specialized education or experience, a Veteran is not competent to diagnose their own condition or offer opinions as to the cause of their own symptoms. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence. See Davidson v. Shinseki, 581 F.3d 313, 1316 (Fed. Cir. 2009). In February 2012, the Veteran submitted a claim for service connection for, among other issues, "water on the brain (spinal injury)." VA has interpreted this broadly as a claim for service connection for any brain condition. The Veteran's treatment records and VA examinations reveal diagnoses including mild traumatic brain injury (TBI) and mega cisterna magna vs arachnoid cyst. Both before and after filing this claim, the Veteran has consistently described an event that he states occurred in June 2004 while he was deployed on active duty in support of Operation Iraqi Freedom. The Veteran states that he was in a gun truck protecting a convoy when he observed a suspicious vehicle and ordered the gun truck driver to approach it. The driver rear ended the suspicious vehicle and momentum carried the gun truck over the other vehicle, which either caught fire or exploded. The Veteran was thrown headfirst into the ceiling of the gun truck and lost consciousness for a few seconds. The Veteran's account is supported by a contemporaneous memorandum in support of his bronze star medal, awarded in July 2004, and by an April 2009 buddy statement provided by the driver of the gun truck. In February 2014, the Board explicitly found that the above incident happened as described, at least as far as the Veteran having his head slammed into the ceiling of the gun truck and briefly losing consciousness. In March 2013 a VA examiner diagnosed mega cisterna magna versus arachnoid cyst and opined that it was less likely than not related to active service. In proffering a negative nexus opinion, although the VA examiner acknowledged that an arachnoid cyst could be the result of non-developmental causes such as adhesions, the VA examiner did not consider and weigh the Veteran's relevant lay statements of record regarding an in service incurrence. An April 2018 remand was required to obtain a new opinion. In November 2018, a VA examiner completed a cranial nerve disability benefit questionnaire and found that the Veteran did not have a brain disability. The examiner noted the presence of mega cisterna magna but opined it was not related to an in-service injury because this condition is usually related to a chromosomal abnormality and is found in 1 percent of brain scans postnatally. In August 2019, a VA examiner completed a TBI disability benefits questionnaire and found that the Veteran did not have a TBI. This opinion was partially based on the lack of "searchable evidence" of a head injury or concussion and the examiner stated that the issue should be revisited if there was evidence of a head injury/concussion. Because the November 2018 examiner and August 2019 examiner failed to discuss the Veteran's lay statements regarding symptoms or reconcile their findings with previous diagnoses, a May 2020 remand was required to obtain a new opinion. An August 2019 VA TBI clinic treatment record diagnosed the Veteran with mild TBI. In July 2020, a VA examiner opined that since contemporaneous medical records from August 2004 showed that the Veteran denied symptoms of TBI, any current TBI was less likely than not related to service. Because this opinion did not address the Veteran's lay statements and did not clarify how the Veteran's mega cisterna magna vs arachnoid cyst pertained to the Veteran's claimed brain injury as directed in the May 2020 remand order, the VA regional office (RO) requested a clarification. In September 2020, a VA examiner agreed with previous VA examiners that there was no TBI in June 2004, but relied heavily on the absence of records of a head injury/concussion and did not discuss the Veteran's relevant lay statements other than to say they were not considered evidence. Because of the July 2020 and September 2020 VA examiners' failure to consider lay evidence of in-service incurrence or continuity of symptomatology since service, a November 2020 remand was required to obtain a new opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). As with previous remand orders, the November 2020 remand order required discussion of the Veteran's lay statements in any opinion provided. In January 2021, a VA examiner opined that the Veteran had no evidence of an in-service head injury and no evidence of a chronic TBI condition, including one related to any injury from 2004. The examiner failed to discuss the Veteran's previous diagnoses and failed to discuss the Veteran's lay statements. Unfortunately, there has not been substantial compliance with the Board's previous remand directives, including the most recent remand of November 2020, regarding the issue of service connection for a brain condition. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matter is REMANDED for the following action: 1. Obtain an addendum opinion from a competent clinician regarding the relationship between the Veteran's claimed brain condition and the reported in-service event. If necessary, schedule the Veteran for a VA examination for his claimed brain condition as due to a traumatic brain injury. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a) Does the Veteran have a diagnosable current brain condition? The examiner, at a minimum, should discuss the following evidence: a. MRIs of September 2011 onward documenting mega cisterna magna vs arachnoid cyst b. August 2019 TBI clinic record diagnosing mild TBI c. The Veteran's lay statements regarding onset and severity of symptoms including chronic headaches, severe light sensitivity, blurry vision, mild memory impairment, and insomnia (b) For each diagnosed brain condition, is this condition at least as likely as not related to service, including, but not limited to, the incident involving an IED explosion in Iraq in 2004? In providing the requested opinion, consider the Veteran's credible description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? Provide a rationale to support the opinion(s). NOTE 1: For purposes of providing the required opinions, the fact of the Veteran hitting his head on the ceiling of his vehicle and briefly losing consciousness in June 2004 is already established. The requested opinions are only to address whether this event resulted in a chronic brain disability, not whether the event itself occurred. NOTE 2: Regarding mega cisterna magna vs arachnoid cyst, previous examiners have stated that this condition is usually a developmental issue but allowed for the possibility of non-developmental causes such as adhesions. No medical literature was cited by previous examiners and no explanation was provided as to how to differentiate between developmental and non-developmental versions of this condition. If the examiner opines that the Veteran's mega cisterna magna vs arachnoid cyst is not related to service, the opinion should cite medical literature and evidence explaining this distinction and how it applies to the Veteran's diagnosed condition. NOTE 3: Regarding TBI, no previous opinion has addressed the Veteran's lay statements regarding the onset of his symptoms and no previous opinion has addressed the August 2019 TBI clinic diagnosis of mild TBI. The examiner's opinion must discuss this evidence. 2. Readjudicate the Veteran's claim. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zimmerman, Micah 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.