Citation Nr: A25035167 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241009-482527 DATE: April 16, 2025 REMANDED Entitlement to service connection for residuals of a head injury is remanded. Entitlement to service connection for neurocognitive disorder is remanded. Entitlement to service connection for posttraumatic migraine headaches is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1977 to June 1978. This appeal comes to the Board of Veterans' Appeals (Board) under the Appeals Modernization Act (AMA) review system. Following a January 2024 VA Form 20-0996, Decision Review Request - Higher Level Review (HLR), the agency of original jurisdiction (AOJ) in May 2024, found that there had been a pre-decisional duty to assist in obtaining evidence and after completing development issued the September 2024 rating decision on appeal. Any evidence previously submitted to the AOJ or associated with the claims file while the record was closed became part of the evidentiary record to be considered upon readjudication. 38 C.F.R. § 3.103 (c) (2) (ii). The Veteran appealed the September 2024 rating decision by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement (NOD)) in October 2024. He elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the September 2024 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. The Board notes that in his NOD, the Veteran clearly limited his appeal to include claims of service connection for head injury, mild neurocognitive disorder, and posttraumatic migraine headaches. As such, his service connection claim for stroke that was also adjudicated in the AOJ decision on appeal is not before the Board. The Board acknowledges the decision by the United States Court of Appeals for Veterans Claims (Court) in Williams v. McDonough, 37?Vet. App.?305. In Williams v. McDonough, the Court held the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202 (c) (2). Because the Board is remanding the appeal for additional development, there is no prejudice to the Veteran in proceeding. Additionally, because the Board is remanding the appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of the claim. 38 C.F.R. § 3.103 (c) (2) (ii). Under the AMA, the Board must remand a claim to correct an error by the AOJ to satisfy its duty to assist the claimant under 38 U.S.C. § 5103A, if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A (f) (2) (A); 38 C.F.R. § 20.802 (a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802 (a). ? 1. Entitlement to Service Connection for Residuals of a Head Injury 2. Entitlement to Service Connection for Neurocognitive Disorder 3. Entitlement to Service Connection for Posttraumatic Migraine Headaches A remand is necessary to correct a pre-decisional duty to assist error. See 38 C.F.R. § 20.802. Here, the AOJ failed to obtain adequate VA medical opinions. See 38 C.F.R. §§ 3.159 (c) (1). The Veteran contends that he has had multiple head injuries during service. He describes a boxing incident during service wherein he and another soldier stood toe to toe and gave blow after blow to each other until the fight finished. He reports that following service, he could not afford to seek medical care. See December 2021 statement. A September 2021 private treatment record documents emergency room care for head trauma, with episodes of dizziness and headaches. The evidentiary record includes a May 2023 VA traumatic brain injury (TBI) examination report indicating the Veteran does not now have nor has he ever had a TBI or any residuals of TBI; a May 2023 VA headaches examination report indicating a current diagnosis of posttraumatic migraine headaches; and a May 2023 VA psychiatric examination report indicating a current diagnosis of mild neurocognitive disorder likely secondary to head trauma in 2021. In the accompanying May 2023 opinions, the examiner determined there was no evidence that the Veteran is suffering from any medical or mental health condition caused by the fractured jaw during boxing training or any other issue which occurred while on active duty. [The Veteran is service-connected for temporomandibular joint disorder with bruxism.] The examiner further stated there is no evidence of the Veteran having had any significant headaches prior to the recent facial fractures. The evidentiary record further includes a June 2023 VA neurology consultation record wherein the clinician indicated the Veteran boxed in his youth and, therefore, had head trauma due to boxing. The clinician further indicated the Veteran fell the year before and was knocked out. The clinician noted the Veteran's report that his symptoms started in basic training in 1977-1978, and have occurred daily and in the evening. The clinician noted diagnoses of migraine with aura; post-concussive disorder; and cognitive disorder that "could be related to history of multiple TBI." Medical statements framed in terms such as 'could have been' carry limited probative value. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). In addendum VA medical opinions dated July 2024, the examiner restated their prior findings of no documented evidence of any trauma to the head causing alteration of consciousness, a loss of consciousness, or amnesia for the event while on active duty. The examiner acknowledged that the Veteran was punched in the face during boxing training and that he suffered a fractured jaw as a result of this incident. However, the examiner restated that there is no evidence that this injury or any other incident which occurred while on active duty caused a TBI according to VA definition. The examiner also stated there is no evidence the Veteran began having headaches during his active service, and because there is no evidence the Veteran suffered a TBI while on active duty, his mental or cognitive issues cannot with any degree of medical certainty be related to any TBI that is alleged. The negative May 2023 and July 2024 opinions are inadequate for two reasons. First, the examiners failed to reconcile the finding that the Veteran did not have an in-service head injury with the June 2023 neurology consultation, which described the Veteran as having had an in-service head injury along with the opinion that the Veteran had a possible history of a TBI. Second, the July 2024 addendum VA medical opinion does not appear to have considered the Veteran's lay contentions that his symptoms started in basic training in 1977-1978, and have occurred daily. Such limits the probative value of these opinions. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The AOJ's reliance on the July 2024 opinion amounts to a pre-decisional duty to assist error. A remand is needed to obtain new VA medical opinions to determine the etiology of the Veteran's head injury, mild neurocognitive disorder, and posttraumatic migraine headaches. 38 C.F.R. § 20.802 (a). The matters are REMANDED for the following action: Obtain addendum opinions from an appropriate clinician (other than the examiner who provided the May 2023 and July 2024 opinions) regarding the nature and etiology of the claimed head injury, neurocognitive disorder, and posttraumatic migraine headaches. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be conducted and any indicated tests, studies, or evaluations should be performed, but that is left to the examiner's discretion. The examiner is asked to opine to the following: (a) Is it at least as likely as not (ie., the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran has a head injury related directly to his service, to include as related to in-service participation in boxing? Why do you say so? (b) Is it at least as likely as not (ie., the likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's neurocognitive disorder and/or posttraumatic migraine headaches is/are related directly to his service, to include as related to in-service participation in boxing? Why do you say so? In rendering the above opinions, the examiner is asked to comment on the June 2023 VA neurology consultation record noting the Veteran boxed in his youth and, therefore, had head trauma due to boxing; that the Veteran fell the year before and was knocked out; that the Veteran reported that his symptoms started in basic training in 1977-1978, and have occurred daily and in the evening; and that the Veteran has current diagnoses of migraine with aura; post-concussive disorder; and cognitive disorder that "could be related to history of multiple TBI." In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements of in-service symptomatology and continuity of symptoms since service and may not disregard those statements merely because there was no treatment. Note: 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. All opinions must include rationale. If an opinion requested cannot be provided without resort to mere speculation state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given the state of medical science and the known facts), a deficiency in the record (additional facts are required, if so identify them), or the examiner (does not have the requisite knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, Associate 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.