Citation Nr: 21030369 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 15-00 704A DATE: May 18, 2021 REMANDED Service connection for a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1971 to November 1975. The Veteran passed away in January 2020. The Appellant is his surviving spouse. The Appellant was recognized as the Veteran's substitute on July 28, 2020. The Appellant contends that the Veteran was entitled to service connection for a traumatic brain injury (TBI). This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 and October 2020, the Board remanded the case for additional development, and it now returns for further appellate review. Service connection for a traumatic brain injury (TBI) The law provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). Such assistance includes providing the claimant with a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). If a medical examination report does not contain sufficient information to allow an informed Board decision, then the rating board must return the report as inadequate. See 38 C.F.R. § 4.2 (2018); Bowling v. Principi, 15 Vet. App. 1, 12 (2001); Ardison v. Brown,6 Vet. App. 405, 407 (1994). Once VA undertakes to provide a medical examination, VA must provide an adequate examination or, at a minimum, notify the claimant why one will not or cannot be provided. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An examination "is adequate where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In the July 2018 Board decision, the Board remanded the issue of service connection for a traumatic brain injury (TBI) in order to obtain a VA examination and opinion addressing the etiology of the Veteran's claimed TBI. The Board highlighted a TBI Signs and Symptoms Questionnaire that the Veteran had submitted in August 2010. In the Questionnaire, the Veteran indicated he hit his head on an aircraft while stationed in Thailand; and he reported that he currently experienced headaches, dizziness, memory problems, and weakness in the arms, legs, and shoulders. The Board specifically directed that, in rendering the requested medical opinion, the examiner should specifically address the August 2010 TBI Signs and Symptoms Questionnaire. The Veteran underwent a VA examination for his claimed TBI in March 2019. In a related medical opinion, the VA examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner listed the August 2010 TBI Signs and Symptoms Questionnaire among the records reviewed, but she did not specifically address the Questionnaire in the medical opinion rationale. In the October 2020 Board decision, the Board found that the March 2019 VA examination and opinion failed to address the August 2010 TBI Signs and Symptoms Questionnaire when concluding that the Veteran did not actually suffer from a TBI or residuals thereof. Thus, the Board found that the July 2018 Board remand directives were not followed, and the Board remanded the issue for another addendum opinion. The Board again directed that, in rendering the requested medical opinion, the VA examiner should specifically address the August 2010 TBI Signs and Symptoms Questionnaire. In a March 2021 medical opinion, the VA examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The March 2021 VA examiner stated that a complaint of subjective memory problems is noted to have begun about seven years ago, but the examiner noted that this would have been some 30 years after service and not connected to any potential TBI issues from that time. The examiner also stated, "Overall, the record does not support the existence of a current TBI condition or residual TBI symptoms." In providing this opinion, the March 2021 VA examiner listed the August 2010 TBI Signs and Symptoms Questionnaire among the records reviewed. However, once again, contrary to the July 2018 and October 2020 Board directives, the March 2021 VA examiner did not specifically address the Questionnaire in his medical opinion rationale. Therefore, although the Board regrets the additional delay, the Board finds that remand for an additional addendum medical opinion is necessary as the remand directives from the July 2018 and October 2020 Board Remand were not substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that, in order to substantially comply with this remand, it will not be sufficient for the examiner to simply include the August 2010 TBI Signs and Symptoms Questionnaire in the list of evidence considered. The examiner must specifically address this evidence in his or her opinion and give a complete rationale for why he or she agrees or disagrees with the findings in such evidence Accordingly, the matter is REMANDED for the following actions: 1. Provide the claims file and this remand to an appropriate qualified medical examiner. The examiner must provide a medical opinion to determine the etiology of the Veteran's claimed traumatic brain injury (TBI). The examiner must consider the Veteran's entire medical history, both during and after her active service. The examiner must consider and address the lay evidence of record, including but not limited to statements and testimony by the Veteran. The examiner should consider and address any evidence contained in these statements regarding any onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The examiner should address the following inquiries: (A) Identify any traumatic brain injury (TBI) or residuals thereof that the Veteran suffered at any time during the period on appeal since August 2010. (B) Provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any such TBI or residuals thereof suffered by the Veteran were incurred in, caused by, aggravated by, or otherwise related to his active service. In offering such opinion, the examiner must consider and address the August 2010 TBI Signs and Symptoms Questionnaire. The Board notes that, in order to substantially comply with this directive, it will not be sufficient to simply include the August 2010 TBI Signs and Symptoms Questionnaire in the list of evidence considered. The examiner must specifically address this evidence in his or her opinion and give a complete rationale for why he or she agrees or disagrees with the findings in this evidence. A rationale for any opinion offered should be provided. 2. The Agency of Original Jurisdiction must review the addendum opinion obtain to ensure the requested opinions and rationale are provided in full. If any opinion is deficient, undertake corrective action prior to returning the case to the Board. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.