Citation Nr: 21042444 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-55 073 DATE: July 13, 2021 REMANDED Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to September 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in December 2018, at which time it was remanded for development, and in June 2020, at which time the claim was denied. The Veteran appealed the denial to the Court of Appeals for Veterans' Claims (Court), which, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's judgment with respect to the issue herein on appeal, and returned the matter to the Board. 1. Entitlement to service connection for residuals of TBI is remanded. This matter must be remanded to afford the Veteran an adequate VA medical examination and opinion as to etiology of his claimed TBI residuals. In its December 2018 remand, the Board directed the VA examiner to furnish an addendum opinion with respect to "any positive [TBI] screenings," but the presence of any such screenings was unacknowledged in the addendum opinion. The Board observes that the record contains a positive TBI screening from July 2014. Further, the Veteran has raised the issue of whether the combat presumption applies to this matter. The presumption provides that where the evidence shows that a veteran engaged in combat with the enemy, his or her lay reports will be sufficient to establish the occurrence of an event or injury during combat as long as such reports are consistent with the circumstances, conditions, or hardships of such service. This is true even if there is no official record of the reported incident, unless there is clear and convincing evidence to the contrary. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (d). This presumption also extends to a combat veteran's reports of experiencing a permanent disability beginning at the time of injury during combat. Reeves v Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). However, "[e]ven when the statutory combat presumption applies, a veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty." Id. at 999 n. 9. As such, the evidence must show that the "disability he incurred in service was a chronic condition that persisted in the years following his active duty." Id. at 1000. A review of the record convinces the Board that the combat presumption applies in this matter; specifically, that the Veteran was engaged in combat with the enemy as that term is contemplated in 38 C.F.R. § 3.304 (d), and that his account of a vehicle in which he was a passenger being struck by an IED, and his subsequent head injury and ensuing symptoms, are deemed credible. On remand, the VA examiner must consider as credible the Veteran's account of the injury giving rise to his claimed TBI, as well as his account of symptomatology in its wake. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the claims file with any relevant outstanding VA and/or private treatment records. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any current TBI residuals. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation, but the examiner is directed to consider as true the Veteran's account of the in-service injury to which he attributes his TBI, and to consider as credible his account of symptoms in that incident's wake. The examiner should identify whether the Veteran has a current diagnosis of TBI or residuals thereof. The examiner is directed to note and comment on any positive TBI screenings contained in the record, to include such a screening conducted in July 2014. If it is determined that the Veteran has a current diagnosis of TBI or residuals thereof, the examiner should state whether that diagnosed condition is etiologically related to an in-service injury or event, to include the IED explosion in which the Veteran was involved. 3. The AOJ should ensure that the examination complies with the terms of the remand. 4. Then, the AOJ should readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.