Citation Nr: A25035384 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 241028-486772 DATE: April 16, 2025 REMANDED Entitlement to service connection for a traumatic brain injury is remanded. Entitlement to service connection for vertigo as secondary to traumatic brain injury is remanded. REASONS FOR REMAND The Veteran completed Active Duty for Training (ADT) from May 1970 to September 1970. A March 2021 rating decision found that the Veteran's ADT time is considered active duty for rating purposes. See March 2021 Deferred Rating Decision. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2023 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In July 2022, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of a claim for service connection for traumatic brain injury most recently addressed in a March 2017 rating decision. In November 2022, the agency of original jurisdiction (AOJ) issued a supplemental claim decision which found that new and relevant evidence had not been received but also considered the claim on the merits and determined that there had been no event, disease, or injury in service and therefore denied the claim. In July 2023, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the November 2022 rating decision. In November 2023, the AOJ issued the HLR rating decision on appeal, which implicitly found that new and relevant evidence had been received and denied service connection for traumatic brain injury and vertigo based on the evidence of record at the time of the November 2022 rating decision. In November 2023, the Veteran submitted VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review Docket. Therefore, the Board may only consider the evidence of record at the time of the November 2022 rating decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the November 2022 decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claims for service connection for traumatic brain injury and vertigo, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to service connection for a traumatic brain injury is remanded. The Veteran contends that he experienced a traumatic brain injury as a result of an explosion that occurred in close proximity to his head during a military training exercise. See, e.g., January 2015 Correspondence. A November 2023 rating decision found that the Veteran has been diagnosed with a traumatic brain injury. The Board is bound by this favorable finding. No VA examiner has opined on the etiology of the Veteran's traumatic brain injury. A July 2022 VA examination found that the Veteran did not have a diagnosis of a traumatic brain injury and did not provide an etiology opinion. As noted above, the November 2023 rating decision on appeal made a favorable finding that the Veteran has been diagnosed with a traumatic brain injury. However, the November 2023 rating decision also found that the Veteran did not experience an injury or event during his active service so the AOJ did not obtain an etiology opinion regarding the cause of the Veteran's traumatic brain injury. Finally, the VA clinician who diagnosed the Veteran with a traumatic brain injury in January 2021 mentioned the explosion incident described by the Veteran. However, the VA clinician did not express an opinion stating that the Veteran's traumatic brain injury was caused by the explosion or by any other aspect of the Veteran's active service. See January 2021 Neuropsychology Note (CAPRI Records). In determining whether the duty to assist requires VA to provide a medical examination or medical opinion with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court of Appeals for Veterans Claims (Court) has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA must make reasonable efforts to assist a claimant in obtaining a medical opinion when it is necessary to substantiate the claim for a benefit. 38 U.S.C. § 5103A. As noted above, the Veteran has been diagnosed with a traumatic brain injury. As for an in-service event or injury, the Veteran has consistently stated that he was in close proximity to an explosion during boot camp that caused blood to flow from his ear. See, e.g., September 2011 Correspondence; April 2014 Psychiatry Note (CAPRI Records); January 2015 Correspondence; October 2020 VA Examination; January 2022 Psychiatry Outpatient Note (CAPRI Records). Specifically, the Veteran states that he participated in a training exercise on June 29, 1970 in which explosives were placed inside sandbags. One of the sandbags exploded as he crawled past it, knocking off his helmet and causing blood to flow from his ear. The Veteran states that when he notified his drill instructor of this incident, he was told not to report it because it would get someone in trouble. He also states he was threatened with being forced to repeat his training program if he did report. The Veteran claims that he went to sick call the next morning but did not explain what happened to the physician based on the threats made by the drill instructor. Instead, he simply claimed he was sick. Documentation in the Veteran's service treatment record shows that the Veteran was treated for congestion, nausea and vomiting on June 30, 1970, the day after the claimed explosion. The Veteran claims that he was retaliated against for going to sick call. The Veteran submitted a buddy statement from B.H. that corroborates the essential facts alleged by the Veteran. See January 2015 Buddy / Lay Statement. Finally, a May 2022 VA examination provided a favorable nexus opinion for tinnitus based on the Veteran's report of being in close proximity to an explosion during military training. In light of the above, the Board concludes that the Veteran should be afforded a VA examination to determine the etiology of his traumatic brain injury. McLendon v. Nicholson, supra. The AOJ's failure to obtain an etiology opinion is a pre-decisional duty to assist error. 2. Entitlement to service connection for vertigo as secondary to traumatic brain injury is remanded. The Veteran contends that he experiences vertigo secondary to his traumatic brain injury. See October 2024 Notice of Disagreement. The November 2023 rating decision on appeal found that the Veteran has been diagnosed with vertigo and that his vertigo is secondary to his traumatic brain injury. The Board is bound by these favorable findings. The November 2023 rating decision also noted that service connection for vertigo on a secondary basis may not be granted if the primary disability of traumatic brain injury is not service-connected. Therefore, a decision on the remanded issue of service connection for a traumatic brain injury is inextricably intertwined with the issue of service connection for vertigo. Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). A remand of this appeal is therefore also required. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his traumatic brain injury. The entire claims file must be reviewed by the examiner. All findings and the rationale for all opinions expressed should be provided in a report. The need for an in-person or telehealth evaluation is left to the discretion of the medical professional completing the examination. The examiner should provide an opinion as to the following: Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diagnosed traumatic brain injury had its onset during service or is etiologically related to service? The examiner should specifically address the impact, if any, of the Veteran's September 2011 statement in which he describes being in close proximity to an explosion during boot camp that caused blood to flow from his ear. A rationale should be provided for all opinions offered. (Continued on the next page) ? The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record. Medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Philip W. Zarone, 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.