Citation Nr: 22040190 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 13-16 617 DATE: July 13, 2022 REMANDED The appeal regarding entitlement to service connection for traumatic brain injury is remanded. REASONS FOR REMAND The Veteran had active service from September 1998 to June 2001 and from January 2003 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Agency of Original Jurisdiction (AOJ). The Board denied the Veteran's claim in September 2020. He appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In October 2021, the Court granted the parties' September 2021 Joint Motion for Remand, vacating the Board's decision and remanding for action consistent with the JMR. In the September 2021 JMR, the parties agreed that the Board had failed to address conflicting evidence in its September 2020 decision. Specifically, they noted that the Board had stated that there were no complaints of or treatment for head trauma during service, but that the service treatment records reflected emergency care for a nasal fracture in June 2003 that resulted from being struck by another soldier. Regarding a February 2013 VA examination report, the parties noted that the examiner concluded that the Veteran's cognitive and behavioral issues were less likely than not related to the 2003 altercation during service. They further noted that in January 2018, the same examiner stated that TBI was unlikely and that the Veteran's cognitive and behavioral complaints were unlikely related to his past head injuries. They pointed out that this examiner cited to medical records indicating TBI with onset in 2009. In this regard, service records indicate a diagnosis of TBI in April 2009, and that the Veteran was placed on physical profile during Reserve Service. The parties acknowledged an April 2009 record from the Veteran's treating neurologist indicating that there was a clear pattern of orbito-frontal (disinhibition/dyscontrol) and anterior temporal (memory) deficits consistent with the provided history of multiple blunt force head trauma. They noted that the VA examiner failed to address this evidence in his 2013 and 2018 opinions. In a February 2022 remand, the Board discussed the JMR, and also concluded that the VA examiner had failed to discuss medical evidence that raised the question of whether the Veteran had a TBI prior to service. In this regard, the Board noted that the Veteran and his mother had reported various incidents of head trauma when the Veteran was a child, one resulting in a 15-minute period of unconsciousness. The Board determined that, as entrance examinations in 1998 and 2003 did not document a history of head injury, the presumption of soundness attached. Hence, it was necessary to determine whether there was clear and unmistakable evidence that the Veteran's TBI existed prior to service and was not aggravated by service. The Board remanded for a new examination, directing that the examiner provide an opinion on whether there was clear and unmistakable evidence that TBI existed prior to service. In that regard, the Board advised that clear and unmistakable evidence meant that the evidence cannot be misinterpreted and misunderstood (i.e., is undebatable). If the answer to that question was yes, the examiner was directed to provide an opinion regarding whether there was clear and unmistakable evidence that the pre-existing TBI did NOT undergo an increase in severity beyond the natural scope of the disability during service. If the answer was no, the examiner was directed to provide an opinion regarding whether TBI was manifested during service or otherwise related to service. On examination by a neurologist in April 2022, the examiner indicated that the Veteran had never had a TBI or any residuals of TBI. He stated the following: Head injury noted in records as a child but no TBI in service. It is noted veteran has subjective complaints, cognitive complaints. These are unlikely due to claimed tbi, therefore not attributed to10 facets of tbi. Clinical history, documented events, symptoms and timeline are not consistent with cognitive, subjective, headache complaints likely being secondary to tbi. After careful review of the available medical records, service records, Va records, history and exam, I do not see sufficient objective evidence of events, signs/symptoms to warrant a likely diagnosis of in-service TBI. Notes 6/17/03- s/p nasal fracture, punched. Both members drinking. No other injuries. -upon my review did not see evidence of loc, aloc or sign/symptoms consistent with likely tbi. PDHA 11/16/04-no to headaches, no to difficulty remembering, no to dizziness-upon my review did not see evidence of likely tbi or residuals related to at tbi. Report of medical 1/04/03-to frequent/severe headaches, no to dizziness, no to memory loss.--upon my review did not see evidence of likely tbi or residuals related to at tbi. The examiner's statements do not adequately address the medical principles underlying his conclusions. While he stated that the Veteran's subjective and cognitive complaints were unlikely related to TBI, he did not explain why this was so. He also failed to adequately explain why the Veteran's clinical history, documented events, symptoms, and timeline were not consistent with complaints likely to be secondary to TBI. The examiner additionally concluded that the claimed condition clearly and unmistakably existed prior to service and was not clearly and unmistakably aggravated during service. He stated the following: Upon review of available medical records, I do not see sufficient object evidence of in service event to have at least as likely as not aggravated veterans tbi that existed prior to service. It is noted veteran's records show evidence of nasal fracture, this event did not show objective evidence of being a tbi, vast majority of mild head injury do not have long term residuals and do not aggravate previous tbi. Records and history do not support likely nexus. PDHA 11/16/04-no to headaches, no to difficulty remembering, no to dizziness-upon my review did not see evidence of likely tbi or residuals related to at tbi. Report of medical 1/04/03-to frequent/severe headaches, no to dizziness, no to memory loss.--upon my review did not see evidence of likely tbi or residuals related to at tbi. Report of medical 10/16/04-upon my review did not see evidence of in service tbi or residuals of tbi. The examiner's statement that TBI pre-existed service conflicts with his conclusion that the Veteran had never had TBI or TBI residuals. To the extent that he stated that his review did not reflect evidence of likely TBI or residuals related to TBI, he did not provide a discussion of the medical principles underlying this conclusion. Moreover, he did not explain the basis for his conclusion that TBI clearly and unmistakably (undebatably) existed prior to service. Given the defects discussed above, the Board finds that an additional examination is necessary to adequately address the questions presented in this case. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to assess the nature and etiology of his claimed TBI. The claims file and a copy of this remand must be made available to the examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner should take a thorough history from the record and from the Veteran as it pertains to the onset and treatment of his TBI, to include a history of his prior head injuries and concussions dating to his childhood and during service. Then, the examiner should respond to the following: i. Is there clear and unmistakable evidence that a TBI existed prior to service? * The examiner should note that "clear and unmistakable evidence" means that the evidence cannot be misinterpreted and misunderstood (i.e.it is undebatable). ii. If the answer to question (i) above is yes, is there clear and unmistakable (undebatable) evidence that the pre-existing TBI did NOT undergo an increase in severity beyond the natural progression of the disability during the Veteran's active service? iii. If the answer to question (i) above is no, is it at least as likely as not (a 50 percent or greater probability) that the TBI manifested during active service or is otherwise related to an event, injury, or disease incurred during active service. * In reaching a conclusion, the examiner must address service treatment records documenting a nasal fracture caused by a fight in June 2003 and the Veteran's reports that he lost consciousness at the time of the incident. The examiner must also address the Veteran's reports that he was knocked unconscious again several months later when he was involved in another fight. In rendering these opinions, the examiner is advised that the lay reports pf record must be acknowledged and considered in formulating any opinion. If the examiner rejects the lay reports of record, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the lay evidence or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth, to include a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must 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 particular question. 2. Then, readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.