Citation Nr: 22014567 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 14-28 084 DATE: March 14, 2022 REMANDED Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. Entitlement to service connection for recurrent brain tumors (pituitary growth hormone-secreting macroadenoma), to include secondary to TBI, is remanded. REASONS FOR REMAND The Veteran served in the United States Army from December 1977 to December 1981. These issues come before the Board of Veterans' Appeals (Board) from a December 2010 rating decision by the United States Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the undersigned Veterans Law Judge during a July 2017 videoconference hearing. A transcript of the hearing is contained in the record. The issues were previously before the Board, most recently in April 2021, when remanded for further development. 1. Entitlement to service connection for residuals of traumatic brain injury (TBI) is remanded. 2. Entitlement to service connection for recurrent brain tumors (pituitary growth hormone-secreting macroadenoma), to include secondary to TBI, is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issues of entitlement to service connection for service connection for residuals of TBI and recurrent brain tumors (pituitary growth hormone-secreting macroadenoma). Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In July 2018, the Veteran testified before the undersigned Veterans Law Judge about headaches since service. On a February 2020 Cognitive Screening for TBI form, a doctor that noted "inconsistent" findings did not rule out cognitive dysfunction and depression and noted that the Veteran "requires neurological examination and full psychiatric evaluation." The October 2021 VA medical opinion did not reflect consideration of the February 2020 medical source statement about the need for neurological and full psychiatric evaluations. The April 2021 Board remand order directed that: "If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of current disability, this should be noted." The October 2021 VA medical opinion found that TBI was less likely than not incurred in or relates to 1978 head injury in during service. As part of its rationale the VA medical opinion explained, "The Veterans lay statement of headaches having occurred since his separation from the service have no validity even though he testified, as it has been proven that he has manipulated his history for his own benefit, hence he lies in order to get rated and be compensated. His claimed symptoms do not align with any diagnosis as he is lying. The July 1978 concussion incident has fully resolved as supported by the letter of remand as well as the evaluations performed April 1, 2021." The October 2021 VA examiner did not comply with the Board's April 2021 remand directives. The etiology opinion was based, in part, on a credibility determination made by the examiner. Credibility of evidence is a legal determination that the Board reserves for itself. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, the October 2021 VA medical opinion appeared to improperly rely on the Board's "letter of remand" as medical evidence that the July 1978 concussion incident had "fully resolved." To the extent that the VA medical opinion may have read the Board's April 2021 remand order as containing a medical finding, this was in error. The Board did not intend to and indeed cannot, in making its decisions, assert its own medical opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The Veteran's representative has argued that relevant medical records regarding the tumor were added to the claims file on October 27, 2021, which was after the VA medical opinion October 15, 2021. It was argued that the October 2021 VA medical could not have considered all relevant evidence of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The claim of entitlement to service connection for recurrent brain tumors (pituitary growth hormone-secreting macroadenoma) is inextricably intertwined with the claim of entitlement to service connection for residuals of a TBI. The matters are REMANDED for the following actions: The Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand order. 1. Schedule the Veteran for a VA examination for traumatic brain injury, preferably with a different medical professional than the one that offered the October 2021 VA medical opinion if possible. The examiner must review the claims file, including a copy of July 2017 Board Hearing transcript, medical records associated with the claim file since October 2021, and this remand order. 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 below. The examiner is asked to provide a response to the following: (a.) Is it at least as likely as not (50/50 probability or greater) that the Veteran has residuals of the in-service 1978 head injury, to include TBI and/or concussion syndrome at any time during the appeal period? The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. Provide a rationale to support the opinion. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. Consider the Veteran's description of in-service injury and symptoms as well as post-service symptoms. In July 2017, the Veteran testified before the underlying Veterans Law Judge about headaches since service. The examiner is advised that the Veteran is competent and credible to report symptoms and treatment history. The examiner must specifically consider and discuss the Veteran's testimony about the in-service injury and symptoms since service. The opinion and rationale must reflect this consideration. Also consider the February 2020 Cognitive Screening for TBI form that noted "inconsistent" findings, did not rule out cognitive dysfunction or depression, and found that the Veteran "requires neurological examination and full psychiatric evaluation." If necessary, then also schedule the Veteran for a "full psychiatric evaluation." 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to service connection for recurrent brain tumors (pituitary growth hormone-secreting macroadenoma). If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.