Citation Nr: 22015282
Decision Date: 03/17/22	Archive Date: 03/17/22

DOCKET NO. 18-19 105A
DATE: March 17, 2022

REMANDED

Entitlement to service connection for traumatic brain injury (TBI) is remanded.

REASONS FOR REMAND

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision.

The Veteran appeared at a hearing before the undersigned in October 2021.  A transcript of the hearing is of record.

The Board finds a new opinion is necessary to ensure the decision on the Veteran's claim is fully informed.  The Agency of Original Jurisdiction initially denied the Veteran's claim based on a February 2017 VA examiner's report that indicates it is less likely than not the Veteran incurred a TBI in service because there is no objective evidence to support this finding, noting a lack of a neuropsychological evaluation to confirm TBI.  Evidence associated with the claims file after the February 2017 examination includes a more detailed assessment of a potential TBI, to include a neuropsychological evaluation; however, the Board finds this evidence is insufficient to make an informed decision on the Veteran's claim because it vacillates between discussing whether the Veteran suffered a TBI and whether any of his current symptoms are attributable to TBI without a clear conclusion in either regard in light of the "at least as likely as not" standard applicable to VA claims.

Additionally, there appears to be outstanding private treatment records that are potentially relevant to the Veteran's claim.  VA treatment records indicate the Veteran underwent in-patient TBI treatment over a 30-day period during the summer of 2017 at the Eisenhower Center in Michigan.  Reasonable efforts must be made to assist the Veteran in obtaining these records to ensure compliance with VA's duty to assist.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016).

The matter is REMANDED for the following action:

1. Make reasonable efforts to assist the Veteran in obtaining any relevant outstanding private treatment records, to include, but not limited to, any records that may be available from the Eisenhower Center.

2. Schedule the Veteran for a new examination regarding his service connection claim for TBI, preferably with an examiner who has not previously provided an opinion regarding the Veteran's claim.

The selected examiner must provide an opinion addressing whether the Veteran at least as likely as not (at least an approximate balance of positive and negative evidence) incurred a TBI in service.

It is asked that the opinion in this regard focus primarily on the material issue of whether the Veteran incurred a TBI in service rather than the severity of the potential TBI and/or the range of symptoms attributable to such TBI, as this is a downstream rating issue that will be addressed after the initial decision regarding service connection.

The examiner is advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion.  If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so.

The examination report must include a complete rationale for the opinion provided.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, 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.