Citation Nr: 21030791 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 19-00 942 DATE: May 19, 2021 ORDER New and material evidence has been received to reopen a claim for service connection for concussion from blast and blow to head (claimed as traumatic brain injury (TBI)). REMANDED Entitlement to service connection for cognitive disorder, claimed as a TBI, is remanded. FINDING OF FACT Since the last, final August 2012 rating decision, evidence has been added to the record that was not previously considered by agency decisionmakers and which pertains to a previously unestablished element of the claim. CONCLUSION OF LAW The criteria for reopening the Veteran's claim for service connection for concussion from blast and blow to head (claimed as TBI) have been met. 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2004 to August 2011. His decorations include a Combat Infantryman Badge. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2021; a transcript of the hearing has been associated with the Veteran's claims file. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized the Veteran's claims to include service connection for any cognitive disorder. As recognized in Clemons, even though a Veteran may only seek service connection for TBI, the Veteran's claim cannot be limited only to that diagnosis but must rather be considered a claim for any cognitive disability that may be reasonably encompassed. The Board has recharacterized the Veteran's reopened claim accordingly. New and Material Evidence Service connection for concussion from blast and blow to the head was denied in an August 2012 rating decision. The Veteran did not perfect an appeal that decision, following a June 2014 Statement of the Case, and new and material evidence was not received within one year of that rating decision. Accordingly, it became final. The Veteran then filed an August 2015 VA 21-526EZ Fully Developed Claim (FDC) seeking service connection for TBI among other issues. The Board notes that evidence received since the August 2012 rating decision denying service connection for TBI includes a June 2013 lay statement from the Veteran, a September 2013 TBI consultation record wherein the treatment plan included a consultation with neuropsychology and speech therapy to delineate symptoms consistent with mild TBI, a February 2016 TBI residuals examination and medical opinion, an April 2016 VA neuropsychological evaluation, February 2021 hearing testimony, and multiple VA treatment records indicating the Veteran may have symptoms consistent with a TBI diagnosis. As this additional evidence is relevant, new, and material, this claim may consequently be reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The reopened claim is further addressed in the remand instructions below. REASONS FOR REMAND A review of the claims file reveals an April 2016 VA neuropsychological evaluation, the Veteran's most recent neuropsychological examination, wherein the examiner noted the Veteran failed a statistically significant number of indices during the evaluation that are designed to formally assess the level of effort applied toward testing, suggesting that the Veteran did not approach the assessment with an adequate amount of engagement to produce meaningful results. Thus, the examiner noted any impaired performance demonstrated on testing could not be associated with genuine cognitive difficulties as the results could simply reflect a lack of effort or inadequate engagement. The examiner concluded that there was no objective evidence generated by the assessment to support a diagnosis of neurocognitive disorder. However, the Board notes that the Veteran testified at his February 2021 hearing that he continues to experience post-concussive issues including noise and light sensitivity and cognitive difficulties, including map reading. Additionally, in the November 2018 Statement of the Case, VA acknowledged that the Veteran sustained head injuries during active service. Thus, the Board finds the Veteran should be afforded a VA examination to address the nature and etiology of any diagnosed cognitive disability. The matters are REMANDED for the following action: Schedule the Veteran for a VA medical examination to ascertain the current nature and etiology of any diagnosed cognitive disorder, claimed as due to a TBI. The Veteran's claims file must be reviewed by the examiner. The examiner should provide the following opinions for each diagnosed cognitive disorder: (a) Is a current cognitive disorder present? If not, this must be explained in the context of the record. (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's claimed cognitive disorder, if diagnosed, is etiologically related to his period of service? Please explain why or why not. (c) The examiner is asked to consider all of the Veteran's currently service-connected disorders (as noted in a February 2017 rating decision), especially PTSD and migraine headaches, and opine whether it is at least as likely as not (a 50 percent or greater probability) that a cognitive disorder, if diagnosed, was (i) caused or (ii) aggravated by one or more of these disabilities. Please explain why or why not. All opinions must be supported by a thorough rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.