Citation Nr: 21029852 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-29 813 DATE: May 17, 2021 REMANDED Entitlement to service connection for traumatic brain injury (TBI), to include headaches and seizures residuals, is remanded. Entitlement to special monthly compensation (SMC), based on the need for the regular aid and attendance, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1967 to February 1970. The Veteran served in Vietnam and was awarded the Combat Infantry Badge, Army Commendation Medal, and the Vietnam Service Medal. These matters come before the Board of Veteran's Appeals (Board) from a January 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In June 2017 the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. By way of history, in a December 2017 decision, the Board noted that while the RO did not characterize the Veteran's claim as one that required new and material evidence, the Veteran was claiming that the residuals of the TBI are epilepsy and headaches, which, are disabilities that the Veteran had previously claimed, and had final decisions issued on. As such, the Board considered the claim as a request to reopen. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). The Board reopened the claim and remanded the issues on appeal for additional development. Most recently, in an April 2020 decision, the Board acknowledged while the issues were pending before the RO, the RO issued a rating decision granting service connection for epilepsy. See July 2018 Rating Decision. The Board recharacterized the Veteran's claim for service connection for TBI, with headache and seizure residuals. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In the April 2020 decision, the Board also remanded the issues on appeal for additional development. Unfortunately, as discussed below, the Board's directives have yet again not been substantially completed, and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board further notes that in the April 2020 decision, the Board also remanded the issues of entitlement to an initial disability rating in excess of 40 percent for epilepsy and entitlement to an effective date prior to November 26, 2012, for the award of service connection for epilepsy. It appears that these issues have not yet been recertified to the Board. They will therefore not be addressed at this time as the Board does not currently have jurisdiction. The Veteran's appeal has been advanced on the docket. 38 U.S.C. § 7107 (a)(2) (2012); 38 C.F.R. § 20.900 (c) (2019). 1. Entitlement to service connection for a TBI, to include headaches and seizures residuals, is remanded. The Veteran is seeking service connection for a TBI. Specifically, the Veteran contends that while serving in Vietnam, on Hamburger Hill and during the Tet offensive, he was exposed to multiple blasts and mortar rounds that left him dazed and confused. See September 2001 VA Posttraumatic Stress Disorder (PTSD) Examination. He asserts that he suffered headaches during and since service but he "sucked it up and drove on." See August 2018 Board Hearing Transcript. Following release from active duty "his seizures onset" and he was then diagnosed in 1972. See January 2014 VA Form 9. His seizures have continued since service. The Veteran has also asserted and submitted buddy statements that although he had seizures and headaches as a child, they stopped by the age of 16 and he entered service seizure free. See January 2014 VA Form 9; November 2014 Buddy Statements. As noted above, in several Board decisions, this issue has been remanded. Most recently, in April 2020, the Board instructed the RO to obtain a new VA opinion. Specifically, the Board noted that in a February 2018 TBI examination, a had psychiatrist opined that the Veteran had not suffered a TBI nor had any TBI residuals. The psychiatrist had explained that there was no diagnosis of TBI because there was no pathology to render a diagnosis. The examiner, however, did not make any comment regarding the Veteran's epilepsy or his claimed headaches and whether these could be residuals of TBI. Additionally, the examiner said the Veteran reported not participating in combat activity but did not address the Veteran's lay statements of being exposed to blasts while in service. Pursuant to the remand directives, in February 2021, the RO obtained a new VA opinion. Unfortunately, the Board finds that this VA opinion is also inadequate for adjudicative purposes because it is based on inaccurate factual premises and provides an insufficient rationale. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, in the February 2021 VA opinion, a neurosurgeon reviewed the claims folder and found no current diagnosis of TBI. The examiner explained that the Veteran has no documentation of any temporary or permanent neurological deficits, disorientation, confusion, loss of consciousness or additional diagnoses due to an index neurotrauma event that is medically consistent with a mechanism of traumatic brain injury. He asserted that there are no medical facts in evidence to support this diagnosis of TBI with seizures and/or headaches. Headaches arising out of a (non-existent) traumatic brain injury incident have to meet specific diagnostic criteria that the Veteran does not fulfill because he does not have an index neurotrauma event to begin with as part of the specific and clear diagnostic guidelines for such a diagnosis and published in multiple textbooks of neurology and neurosurgery. Similarly, post traumatic seizures, do not arise without a prior diagnosis of traumatic brain injury. Furthermore, the literature submitted by the Veteran is not substantive for purposes of this claim because the Veteran has not had a traumatic brain injury in service. Here, the examiner asserts that there was no traumatic brain injury during service, and that he accordingly does not have current residuals. In reaching this conclusion, the examiner fails to address a December 1969 service treatment record that states that the Veteran "came into the troop aid with a laceration on forehead while cleaning a road wheel on a truck break bar slip and caught him on his forehead" and "small laceration of forehead." He also does not address the Veteran's competent contentions that he was struck on the face near his eye by a piece of shrapnel during service. See December 2013 VA PTSD Examination. In addition, the examiner does not address the Veteran's competent and consistent assertions regarding experiencing headaches during service and not reporting them because you just "sucked it up" and experiencing headaches since service. The examiner further fails to reconcile his opinion with a June 2017 private opinion and that of the February 2018 VA examiner. In the June 2017 private opinion, the Veteran's neurologist reviewed the service record and medical records. He asserted that onset of epilepsy can be immediate after head injury or not can be within 6 years. "if onset was indeed in 1972 and the Veteran experienced closed head injury inservice it would be likely as not that he has post traumatic epilepsy." In the February 2018 VA examination, although not a specialist the examiner similarly asserted that "there are current research studies/articles that support claims of post traumatic epilepsy as a major long-term complication of traumatic brain injury and usually develops within five years of the head trauma. Although the claimant did not sustain direct head trauma, there is research that supports closed head non-impact blast-induced traumatic brain injury in warfighters from being within non-lethal distance of detonated explosive devices while serving in Iraq and Afghanistan. The research notes a direct mechanism by which blast exposure detrimentally affects the brain." See also April 2019 Medical Literature. Accordingly, a remand for a new VA opinion based on the entirety of the record is warranted. 2. Entitlement to SMC, based on the need for the regular aid and attendance, is remanded. The Veteran is seeking SMC based on the need for aid and attendance. Specifically, he contends that he needs aid and attendance due to his seizure disorder, anxiety, and DJD. See November 2012 Statement for Aid & Attendance. As noted above the Veteran's claim for service connection for a TBI, is being remanded for additional development. The outcome of such development would impact the claim entitlement to SMC. Therefore, the Board finds these issues to be inextricably intertwined and must remand the claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Update medical records. All records/responses received must be associated with the electronic record. 2. Obtain an addendum opinion from a new VA examiner, if possible, regarding the nature and etiology of the Veteran's claimed TBI. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. If an opinion cannot be obtained without an examination, then a VA examination should be afforded to the Veteran. After reviewing all available records, the examiner should: (A) Determine whether any diagnosed TBI is at least as likely as not (i.e. a 50 percent probability or greater) related to active duty service. In doing so, the examiner should consider: (a.) The December 1969 STR noting treatment for an inservice head injury; (b.) The June 2017 private opinion and February 2018 VA opinion indicating that bomb blasts may cause TBI and regarding onset of the Veteran's seizures and/or service connected epilepsy; (c.) April 2019 submitted medical literature regarding blasts and TBI. (d.) The Veteran's competent and consistent statements regarding exposure to bomb and mortar blasts during combat and the Veteran's receipt of the Combat Infantry Badge; (e.) The Veteran's competent report in his December 2013 VA examination concerning being hit in the face with shrapnel near his eye during service; (f.) The Veteran's consistent and competent assertions throughout the record that he has experienced headaches during and since service. (g.) The Veteran's consistent and competent assertions throughout the record that his seizures onset following service and have continued since service. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinion(s) without resorting to speculation, the report should expressly indicate this, and the examiner should explain why an opinion cannot be provided without resorting to speculation. 3. After development of the claim herein for service connection, and any additional notification and/or development deemed warranted, adjudicate the Veteran's claim for entitlement to SMC. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC) that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.