Citation Nr: 1754161	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  10-07 531	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for headaches, to include as residuals of a traumatic brain injury (TBI).

2.  Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depression, and mood disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

D.S. Lee, Counsel


INTRODUCTION

The Veteran had active duty service from November 1989 through April 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May and September of 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The Veteran testified during a hearing that was held before a Decision Review Officer in May 2010 and again during a Board Central Office hearing that was held in December 2014.  Transcripts of both proceedings are associated with the record.

In April 2016, the Board denied the Veteran's claims for service connection for TBI residuals and for an acquired psychiatric disorder.  The Veteran subsequently appealed the adverse Board decision to the United States Court of Appeals for Veterans' Claims (Court).  During the pendency of that appeal, counsel for the Veteran and for the VA Secretary (the parties) filed an October 2016 Joint Motion for Remand (Joint Motion), wherein the parties argued that the Board failed to ensure compliance with a previous March 2015 remand, failed to ensure that VA's duty to assist was discharged fully, and failed to provide an adequate explanation of the bases for its denials of the Veteran's claims.

Specifically, the parties argued that the conclusions rendered in a July 2015 VA examination of the Veteran's TBI is deficient because the VA examiner failed to acknowledge key findings from a previous July 2009 VA examination, to include references in that examination to loss of consciousness and recurring headaches that were noted during the Veteran's earlier medical treatment and in his service treatment records and specific objective findings that were noted by the July 2009 VA examiner.  The parties argued also that the July 2015 VA examiner presented internally inconsistent findings in support her opinion.  In that regard, the parties state, the July 2015 VA examiner's opinion depends in part upon her conclusion that the Veteran did not lose consciousness during his in-service motor vehicle accident.  The parties note that although the service treatment records and private treatment records contemporaneous to the in-service accident do reflect that the Veteran lost consciousness and reported at that time that he had no memory of the event, the July 2015 examiner also did not acknowledge that information in her rationale.

In relation to the issue concerning the Veteran's acquired psychiatric disorder, the parties noted that the previous July 2015 VA psychiatric examination failed to consider or discuss the possibility that the Veteran's diagnosed mood disorder might be secondary to his service-connected knee disabilities.  In that regard, the parties assert, the examiner did not discuss contrary opinions expressed in 2010 VA treatment records and stating that the Veteran's mood disorder had a mood disorder that was secondary to chronic pain symptoms in his legs.  Also, the parties argued that the evidence suggests that the Veteran's mood and cognitive disorders may be related secondarily to his TBI residuals.  Given the same, the parties asserted, the issues concerning the Veteran's TBI residuals and acquired psychiatric disorder are inextricably intertwined.

The Court granted the parties' JMR and vacated the Board's previous denials.  Those matters now return to the Board for further development and action consistent with the JMR.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Initially, the record contains reports from a medical examination conducted in September 2014 by Dr. D.E. and a psychiatric examination conducted in August 2014 by Dr. A.M.  Information contained in those reports and in accompanying documents indicates that those examinations were conducted as part of consideration of a disability claim filed by the Veteran with the Social Security Administration (SSA).  Although the ultimate outcome of that claim is not known, it nonetheless remains likely that claim materials within SSA's possession include additional medical and psychiatric evidence that is relevant to the issues on appeal before the Board.  As such, VA must make efforts at this time to obtain the Veteran's social security records.  38 C.F.R. § 3.159 (c)(2) (2017); see also Baker v. West, 11 Vet. App. 163, 169 (1998) (holding that VA's duty to assist includes obtaining SSA records); Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (clarifying that VA's duty to obtain social security records applies only to records relevant to a Veteran's present claim).

Given the foregoing history and the arguments expressed in the parties' JMR, VA should also arrange for the Veteran to undergo new VA TBI and psychiatric examinations.  38 C.F.R. § 3.359 (c)(4) (2017); Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court's order extends to the terms of the agreement struck by the parties that forms the basis of a joint motion for remand).

Prior to arranging the examinations ordered above, in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any private or VA treatment providers who have rendered additional treatment for his TBI residuals and/or psychiatric disorder since July 2015.  VA must then also make efforts to obtain the records for any treatment that is identified by the Veteran.  38 C.F.R. § 3.159 (2017).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be asked whether he has additional evidence pertaining to his TBI residuals and/or acquired psychiatric disorder, and if so, he should be given assistance in obtaining it.  Relevant VA treatment records dated from July 2015 through the present should be associated with the record.  If such records are not available, such unavailability should be documented in the record.  The Veteran and his representative are to be notified of any unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review.

2.  Obtain the Veteran's social security records.  Records obtained as a result of such efforts should be associated with the claims file.  If such records are unavailable, such unavailability should be documented in the record.  The Veteran and his representative are to be notified of unsuccessful efforts in order to allow them the opportunity to obtain and submit those records for VA review.

3.  Thereafter, arrange for the Veteran to undergo a VA TBI examination with an appropriate examiner to determine whether the Veteran has residuals associated with a TBI, and if so, whether they are related etiologically to an injury or illness sustained during his active duty service.  The Veteran's claim file should be made available to the examiner prior to the examination. The examiner is asked to review the entire claim file in conjunction with the examination.

The examiner should conduct all necessary tests and studies.  Upon review of the record and based on the findings from the examination, the examiner should provide a diagnosis for all disorders that are related to the Veteran's TBI.  For each diagnosed disorder, the examiner should provide opinions as to the following medical questions:

(a) is it at least as likely as not (at least a 50 percent probability) that the diagnosed disorder was sustained during the Veteran's active duty service?

(b) is it at least as likely as not that the diagnosed disorder was caused by or resulted from an injury or illness that was sustained during his active duty service, to include the in-service September 1990 motor vehicle accident?

(c) is it at least as likely as not that the Veteran's hematoma in 2004 was caused by or resulted from an injury or illness that was sustained during his active duty service, to include the in-service September 1990 motor vehicle accident?

(d) is it at least as likely as not that the Veteran's chronic headaches and associated symptoms of nausea and vomiting are residuals that are associated with a TBI sustained by the Veteran during his active duty service?

The examiner's opinions must be accompanied by a complete and detailed rationale.  If the examiner is unable to reach any of the opinions requested above without resort to speculation, he or she should explain the reasons for that inability and comment on whether further tests, evidence, or information would be useful in rendering the opinion being sought.

4.  Also, arrange for the Veteran to undergo a VA mental health examination to determine whether the Veteran has PTSD or any other acquired psychiatric disorder, and if so, whether any diagnosed disorders are related etiologically to his active duty service.  The Veteran's claim file should be made available to the examiner prior to the examination.  The examiner is asked to review the entire claim file in conjunction with the examination.

The examiner should conduct all necessary tests and studies.  Upon review of the record and based on the findings from the examination, the examiner should provide opinions as to the following medical questions:

(a) does the Veteran have PTSD?  If so, is it at least as likely as not (at least a 50 percent probability) related to stress and/or events that occurred during the Veteran's active duty service?  If not, explain why the Veteran does not meet the diagnostic criteria for PTSD.

(b) does the Veteran have an acquired psychiatric disorder other than PTSD?  For each such disorder:  is it at least as likely as not that the diagnosed disorder was sustained during the Veteran's active duty service?  Is it at least as likely as not that the diagnosed disorder was caused by or resulted from an injury, illness, or other event that was sustained during his active duty service?  Is it at least as likely as not that the diagnosed disorder was caused by or resulted from any of his service-connected disabilities?  Is it at least as likely as not that the diagnosed disorder was aggravated beyond its natural progression by any of his service-connected disabilities?

The examiner's opinions must be accompanied by a complete and detailed rationale.  If the examiner is unable to reach any of the opinions requested above without resort to speculation, he or she should explain the reasons for that inability and comment on whether further tests, evidence, or information would be useful in rendering the opinion being sought.

5. After completion of the above development, the issues on appeal should be readjudicated.  If the determination remains adverse to the Veteran, he and his representative should be furnished with a SSOC and be given an opportunity to respond.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).



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