Citation Nr: 21032331 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 08-10 179 DATE: May 26, 2021 REMANDED Entitlement to service connection for residuals of a head injury, including headaches, memory loss, and traumatic brain injury, and including as secondary to service-connected nasal fracture, is remanded. Entitlement to service connection for arthritis and/or fibromyalgia, including as due to radiation or herbicide exposure, and including as secondary to any service-connected disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1961 to January 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in February 2011, September 2013, August 2015, and August 2017. In December 2019, the Board denied the claims on appeal. In response to the December 2019 Board decision denying the claims, the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (CAVC). In September 2020, the Court granted a Joint Motion for Remand (JMR) filed by VA and the Veteran's representative, which requested a vacatur and remand of the December 2019 decision. The parties agreed that the Board erred in its December 2019 decision, by relying on two September 2019 VA examination reports that were inadequately supported by valid medical analysis. Specifically, the examiners based their conclusions that the Veteran's claimed conditions were unrelated to service on nothing more than the lack of contemporary medical evidence in his service treatment records. The parties agreed that the Board must obtain new medical opinions regarding the claims. Thus, the claims are remanded for new examinations to obtain adequate opinions regarding residuals of a head injury, and the etiology of the Veteran's arthritis and/or fibromyalgia. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the nature and etiology of all the Veteran's neurological disabilities, including headaches, memory loss, and traumatic brain injury. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. The examiner shall be provided with the complete claims file, including a copy of this remand and a copy of the September 2020 JMR. After certifying that they have reviewed the entire claims file, the examiner should answer the following: (a) What neurological conditions does the Veteran currently have? (b) For each condition listed above, is it at least as likely as not (50 percent or greater probability) that the condition had its onset in service, or is otherwise related to an in-service injury, disease, or event? The opinion should specifically address the Veteran's in-service nasal fracture in August 1964. (c) For each condition listed above, is it at least as likely as not that the condition was caused or aggravated by any of the Veteran's service-connected disabilities, to include posttraumatic stress disorder (PTSD) and tinnitus? (d) Is it at least as likely as not that any of the Veteran's neurological conditions had their onset within one year of separation? (e) If the Veteran's headaches (and other listed conditions) are unrelated to his military service, what is the likely etiology of these conditions? The examiner must offer a complete rationale for every conclusion reached, citing any record evidence or medical literature relied upon. Proper consideration shall be given to all lay evidence of record. A negative opinion that relies solely on a lack of contemporaneous medical evidence in the Veteran's service treatment records is NOT considered complete and will NOT be accepted by the Board. If the examiner cannot reach a conclusion on an issue without resorting to speculation, the examiner must explain why. 2. Obtain an opinion from an appropriate clinician regarding the nature and etiology of the Veteran's fibromyalgia and/or arthritis. If the clinician believes an in-person or telehealth examination is necessary, one should be scheduled. The examiner shall be provided with the complete claims file, including a copy of this remand and a copy of the September 2020 JMR. After certifying that they have reviewed the entire claims file, the examiner should answer the following: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's fibromyalgia (and/or arthritis) had its onset in service, or was otherwise caused or aggravated by an in-service injury, disease, or event? (b) Is it at least as likely as not that the Veteran's fibromyalgia (and/or arthritis) was caused or aggravated by any of the Veteran's service-connected disabilities, to include PTSD? (c) If the Veteran's fibromyalgia (and/or arthritis) is unrelated to his military service, what is the likely etiology of this condition? The examiner must offer a complete rationale for every conclusion reached, citing any record evidence or medical literature relied upon. Proper consideration shall be given to all lay evidence of record. A negative opinion that relies solely on a lack of contemporaneous medical evidence in the Veteran's service treatment records is NOT considered complete and will NOT be accepted by the Board. If the examiner cannot reach a conclusion on an issue without resorting to speculation, the examiner must explain why. (Continued on the next page) 3. This case has been Advanced on the Docket. The Agency of Original Jurisdiction (AOJ) must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If an opinion is deficient in any manner, the AOJ must undertake immediate corrective action before returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.