Citation Nr: 21031541 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-33 002 DATE: May 24, 2021 REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to service connection for headaches, to include as secondary to TBI is remanded. Entitlement to service connection for an acquired psychiatric disorder other than PTSD secondary to TBI is remanded. Entitlement to service connection for sinusitis, to include as secondary to TBI is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1966 to May 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2018 and November 2018 rating decisions. These matters were denied by the Board in an April 2020 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court issued an order granting a Joint Motion for Remand (JMR), which served to vacate the April 2020 Board decision. 1. Entitlement to service connection for residuals of a TBI is remanded. The parties to the January 2021 JMR agreed that the April 2020 Board decision was inadequate as to the finding that the Veteran's lay statements were not credible. Miller v. Wilkie, 32 Vet. App. 249 (2020) The parties noted the Board did not discuss a November 2018 VA examination opinion as well as treatment records finding the Veteran's report of a TBI during service to be credible. The Board recognizes that an examiner's medical opinion may help the Board in making a credibility determination by, for example, explaining that a veteran's assertions are generally inconsistent with medical knowledge or implausible. Miller, 32 Vet. App. At 259-60. In this case, the November 2018 VA examination found that recurrent headaches, memory loss, and stuttering are known residuals of mild traumatic brain injury, and that there is an appropriate temporal relationship between the Veteran's residuals symptoms and the TBI that the Veteran reported. This information may be helpful in determining whether the Veteran's report of an in-service TBI is credible in spite of the lack of reference to a TBI in the Veteran's service treatment records (STRs). However, when the November 2018 examination references an appropriate temporal relationship, it is unclear what this appropriate temporal relationship is. The examiner presumably refers to the Veteran's report during the examination that he briefly lost consciousness and immediately experienced a severe headache. This assertion is directly contradicted by the April 1967 report of medical history in which the Veteran denied frequent or severe headache, loss of memory or amnesia, and stuttering or stammering. If the November 2018 medical opinion is based upon an incomplete or inaccurate review of the medical record, then it has very limited probative value and thus limited ability to assist in the Board's credibility determination. Upon remand, a new opinion should be obtained that is based upon the complete record in the hopes of assisting the Board in weighing the credibility of the Veteran's lay statements. 2. Entitlement to service connection for headaches, to include as secondary to TBI is remanded. 3. Entitlement to service connection for an acquired psychiatric disorder other than PTSD secondary to TBI is remanded. Because a decision on the remanded issue of entitlement to service connection for a TBI could significantly impact a decision on the above issues, they are inextricably intertwined. A remand is thus required. 4. Entitlement to service connection for sinusitis, to include as secondary to TBI is remanded. During a February 2020 hearing, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. Additionally, the Veteran reported that the records were on file with the VA medical center. The Veteran's VA treatment records contain several references to outside medical records that have been scanned and are available in VistA Imaging, but are not associated with the claims file. Upon remand, all outside records scanned into VistA Imaging should be associated with the claims file. The Board cannot make a fully-informed decision on this because no VA examiner has opined whether the Veteran has sinusitis that first manifested during service, as memorialized by a May treatment record in which the year is illegible, noting six months of a cough. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. H., the physician who treated the Veteran for sinusitis and who, per the Veteran's February 2020 hearing testimony, told him that his sinusitis was caused by a blow to the head. Make two requests for the authorized records from Dr. H. unless it is clear after the first request that a second request would be futile. 2. Obtain all outside treatment records that have been scanned into the VA medical records system under VistA Imaging and associate them with the claims file. 3. After completion of the above, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran has residuals of a TBI that would be consistent with the Veteran's report of being struck in the head during basic training and having an altered state for a few moments without seeking medical treatment, and with the Veteran's denial of frequent or severe headaches, stuttering or stammering, sinusitis, and loss of memory in the April 1967 report of medical history. The clinician is advised that the April 1967 report clearly contradicts the Veteran's later statement that he began experiencing frequent headaches, sinus problems, stuttering, and memory troubles after being struck in the head during basic training. The clinician is asked to discuss whether a blow to the head like the one described by the Veteran might cause the reported symptoms to surface after April 1967. The clinician is also advised that a November 2018 VA treatment note indicates that the Veteran reported deficits in cognitive functioning since a TBI in 1966, but his son noted that the Veteran had been evidencing decline over the past few years, and the physician noted that it is unlikely that any in-service TBI is still contributing to the Veteran's cognition today. The clinician is also advised that an August 2018 mental health treatment note in which the Veteran reported being hit in the head during boot camp and blacking out, after which the Veteran noticed that he would stutter at times and became more forgetful, described the Veteran as a reliable historian. Any opinion offered must be supported by a complete rationale. 4. After completing remand instructions one and two, attempting to obtain private treatment records from Dr. H. regarding the Veteran's sinusitis and associating any outside treatment records contained in the VistA Imaging system with the claims file, schedule the Veteran for a VA examination for his sinusitis. 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 whether it is at least as likely as not (50 percent or greater probability) that the Veteran has sinusitis that is at least as likely as not (50 percent or greater probability) related to service, to include whether the Veteran's in-service report of coughing for six months might be the first manifestation of sinusitis. The opinion offered must be supported by a complete rationale. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of entitlement to service connection for headaches as secondary to TBI and entitlement to service connection for an acquired psychiatric disorder other than PTSD secondary to TBI. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.