Citation Nr: 1306946 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-28 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for a psychiatric disorder claimed as depression, memory, and speech problems. 2. Entitlement to an evaluation in excess of 40 percent for the service-connected residuals of a brain concussion. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: New Hampshire State Veterans Council WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Jarrette A. Marley, Associate Counsel INTRODUCTION The Veteran had active service from February 1964 to February 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Manchester, New Hampshire Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a video conference hearing in June 2010. This case was previously before the Board in July 2010 when it was remanded for additional development. In a June 2012 rating decision, the Veteran was awarded an increased (40 percent) evaluation for his service-connected residuals of a brain concussion, effective March 7, 2007 (the date of claim). By way of background, a January 1975 rating decision granted service connection for residuals of a brain concussion, assigning a 10 percent disability evaluation. Within one year of this determination, the Veteran did not express disagreement with this initial disability evaluation, nor was any relevant new and material evidence, medical or lay, physically or constructively received by VA prior to the expiration of the appellate period. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.156(b); 20.201 (2012); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011). As such, the January 1975 rating decision became final. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of service connection for a psychiatric disorder and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the appeal period, resolving all reasonable doubt in the Veteran's favor, the Veteran's residuals of a brain concussion have been manifested by no more than mild impairment associated with memory, attention, concentration, executive functions, consistent with Level 2 facet score. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran's residuals of an in-service brain concussion include headaches, and his headaches are shown to approximate characteristic prostrating attacks averaging one in 2 months over last several months; however, the preponderance of the evidence shows that the headaches do not result in completely prostrating and prolonged attacks. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for residuals of a brain concussion have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Codes 8045, 9043 (as in effect prior to October 23, 2008); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.124a, Diagnostic Codes 8045 (2012). 2. The criteria for a separate disability rating of 10 percent for tinnitus have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.321(b), 4.7, 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the VCAA. See 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b). With respect to the increased rating claim for residuals of a brain concussion, the notice requirements were accomplished in a letter sent in July prior to the initial rating decision. Additional notice pursuant to the July 2010 Board remand was sent in July 2010. Although notification to the Veteran may not have met all of the requirements of the VCAA and related case law, the matter decided below may be addressed at this time, without further remand, because no errors in notice are prejudicial in this case, and the Veteran has been provided all information needed for a reasonable person to prove the claim. In any event, the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently vacated the previous decision of the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concluding that generic notice in response to a claim for an increased rating is all that is required. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). VA also has a duty to assist the Veteran in the development of his claims. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service, VA, and private treatment records (including records from the Social Security Administration) have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with VA examinations. The Board finds that the VA examination reports are adequate for evaluation purposes because the examiners conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). Thus, the Board finds that the examination reports are adequate. Further, the Veteran has not alleged, nor does the record show, that his service-connected residuals of a brain concussion has worsened in severity since the most recent examination. As such, a new examination is not required. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). The Veteran was also provided with a hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. However, the VLJ solicited information from the Veteran so that he was able to clarify his contentions. Although the VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims file, the Veteran's representative identified additional pertinent evidence that was forthcoming. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Legal Criteria and Analysis The Veteran seeks a higher rating for his service-connected residuals of a brain concussion. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where, as here, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). VA revised the criteria for evaluation of residuals of traumatic brain injury, effective October 23, 2008. See 73 Fed. Reg. 54,693-54,708 (Sept. 23, 2008). Because the Veteran's claim was filed before October 23, 2008, the claim will be evaluated under the rating criteria in effect prior to October 23, 2008. Under the version of Diagnostic Code 8045 in effect prior to October 23, 2008, purely neurological disabilities such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc. will be rated under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated diagnostic code (e.g., 8045-8911). Purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. This 10 percent rating will not be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 are not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2008). Revised Diagnostic Code 8045 provides evaluation for three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluate cognitive impairment and subjective symptoms: The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a traumatic brain injury related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under Diagnostic Code 8045. Note (5); A veteran whose residuals of a traumatic brain injury are rated under a version of § 4.124a, Diagnostic Code 8045, in effect before October 23, 2008, may request review under Diagnostic Code 8045, irrespective of whether his or her disability has worsened since the last review. VA will review that veteran's disability rating to determine whether the veteran may be entitled to a higher disability rating under Diagnostic Code 8045. A request for review pursuant to this note will be treated as a claim for an increased rating for purposes of determining the effective date of an increased rating awarded as a result of such review; however, in no case will the award be effective before October 23, 2008. For purposes of determining the effective date of an increased rating awarded as a result of such review, VA will apply 38 C.F.R. § 3.114, if applicable. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (effective Oct. 23, 2008). Historically, in a January 1975 rating decision, the Veteran was granted service connection for residuals of a brain concussion, and assigned a 10 percent disability rating under Diagnostic Code 9304, effective from November 5, 1974. The Veteran filed a claim seeking a higher disability evaluation for service-connected residuals of a traumatic brain injury (TBI) in March 2007. On October 2007 VA examination, the Veteran reported having changed speech, involuntary movements (but no seizures), memory loss, and headaches (intermittent, and treated by aspirin), following a head injury during active service. Physical examination revealed no speech impediment, with no evidence of specific slurring. There was no sensory deficits in the upper or lower extremities. Reflexes were present and symmetrical in the upper extremities, and present and symmetrical at the level of both knees; the examiner was unable to pick up reflexes at the level of the ankles. The diagnosis was no residual of in-service head injury found. On December 2007 addendum opinion, in attempt to reconcile the findings of the above examination with that of a separate October 2007 VA examination for his claim for a psychiatric disorder that found psychiatric disorders attributed to his service-connected residuals of a brain concussion, noted that there was a lack of continuity between the Veteran's alleged head injury and the appearance of his alleged symptoms involving his speech, ability to understand, and memory issues. During the interval following his head injury, there is serious alcohol abuse which is said to have terminated in the mid-1990s. The examiner opined that the Veteran's psychological issues of depression and anxiety, social dysfunctional behavior and short-term memory loss are all symptoms that can only be considered as speculatively related to the in-service head injury. At the June 2010 video conference hearing, the Veteran testified that he had experienced employment difficulties in part because of memory problems. On August 2010 VA examination, the Veteran reported post-traumatic headaches (3-4 days per week, not severe, and relieved in minutes by aspirin) and a cognitive disorder, including memory loss, as residuals of his service-connected brain concussion. The memory impairment was noted to be mild and reflected by decreased attention. It was also noted that he complained of speech difficulty as residual of his service-connected brain concussion. However, the examiner noted the Veteran was edentulous (i.e., without teeth), and not aphasic. His speech has a lisp, but it was more likely related to his dental problems, and not to his service-connected brain concussion. On physical examination, reflex examination was normal except for bilateral ankle jerk which was absent. Sensory examination was normal in all extremities, and motor examination revealed active movement against full resistance. His gait was noted to be cautious, but there were no involuntary movements seen. Under subjective symptoms of residuals of traumatic brain injury it was noted the Veteran had daily mild to moderate headaches. The examiner diagnosed the Veteran as having traumatic brain injury with associated memory loss and difficulty following instructions, posttraumatic headaches, and a cognitive disorder with associated decreased concentration. In June 2012, the VA examiner evaluated the Veteran's traumatic brain injury under the amended criteria applicable to claims for benefits by VA on or after October 23, 2008. Considering the findings from the August 2010 VA examination, the examiner assigned the following numerical levels of severity in each facet area: "2" for the memory, attention, concentration, executive functions fact: "1" for the judgment facet; "1" for the social interaction facet; "0" for the orientation facet; "0" for the motor activity facet; "0" for the visual spatial orientation facet; "1" for the subjective symptoms facet; "2" for the neurobehavioral effects facet; and a "1" for the communication facet. As noted above, in a June 2012 rating decision, the Veteran was awarded an increased 40 percent evaluation for his service-connected residuals of a brain concussion, effective March 7, 2007 (the date of claim for increase). The Board has considered the medical and lay evidence of record and finds that for the time period prior to October 23, 2008, (the date of the change in the rating criteria) an evaluation in excess of 40 percent is not warranted. The evidence dated prior to October 23, 2008, does not show that he has a purely neurological disability as a result of traumatic brain injury or that he has multi-infarct dementia associated with brain trauma. Thus, the claim for a rating in excess of 40 percent for residuals of brain concussion must be denied for the period prior to October 23, 2008. For the time period from October 23, 2008, the Board finds that the currently assigned 40 percent evaluation for residuals of the Veteran's service-connected brain concussion is the proper rating. Notably, the June 2012 rating decision that granted an increased (40 percent) rating for residuals of brain concussion did so on the basis of the Veteran's post-traumatic headaches and cognitive disorder. After considering the evidence of record, the Board finds his symptomatology for the period from October 23, 2008 is consistent with the 40 percent disability rating currently assigned. Specifically, the Board finds the objective testing revealed a mild impairment of memory, attention, concentration, or executive functions, reflective of a level 2 facet score. While there was shown to be impairment in the judgment, social interaction, communication, and subjective symptoms facets, they were reflective of impairment consistent with a level 1 facet score. Notably, the Veteran has several diagnoses of mental disorders. Under 38 C.F.R. § 4.124a, emotional/behavioral symptoms are to be rated separately under § 4.130 for rating mental disorders rather than under § 4.124a. In any event, the Veteran's emotional/behavioral symptoms have been shown to warrant at highest a level 2 impairment score. As the highest facet assigned is level 2 for mild impairment of memory, attention, concentration, or executive functions, a 40 percent rating as currently assigned is the highest rating warranted. A higher, 70 percent, rating is not warranted because none of the residuals of the service-connected brain concussion result in a level 3 impairment. Thus, an evaluation in excess of 40 percent for the period beginning October 23, 2008, is not warranted. The Board has considered alternatively rating the Veteran's disability under Diagnostic Code 8100 for migraine headaches as a subjective symptom of the Veteran's residual of brain concussion. Under Diagnostic Code 8100, a noncompensable rating is assigned with less frequent attacks; a 10 percent rating is assigned with characteristic prostrating attacks averaging one in 2 months over last several months; a 30 percent rating is assigned with characteristic prostrating attacks occurring on an average once a month over last several months; and a 50 percent rating is assigned with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In this case, the Board finds the Veteran's headaches approximate a severity warranting a separate 10 percent rating. Although at no point has the evidence shown, nor has the Veteran reported that the headaches are characterized by prostrating attacks, due to their frequency in occurrence (at least three to four times per week, and at most daily), the Board finds that a separate 10 percent rating is warranted, but no higher, as there is no evidence of prostrating attacks. Under the former version of Diagnostic Code 8045, the Veteran was in receipt of the maximum evaluation and thus a higher rating for the Veteran's headaches under the former criteria, prior to October 23, 2008, is not warranted. The Board similarly finds that under the revised criteria, the preponderance of the evidence is against the Veteran's entitlement to an evaluation in excess of 10 percent since October 23, 2008. In reaching this determination, the Board finds that the Veteran's headaches as a residual of his traumatic brain injury warrant zeros in each of the 10 facets, yielding a noncompensable rating under revised Diagnostic Code 8045. In reaching its decision, the Board has considered the Veteran's and his representative's statements regarding his symptoms and functional impairment, as well as the medical evidence in his file. However, the clinical evidence pertaining to his traumatic brain injury is more probative for the purposes of assigning the current ratings for the disability at issue in conjunction with the relevant rating criteria than the lay contentions. Thus, the Board finds that his functional impairment has been appropriately considered in assigning the current ratings consistent with the documented symptoms. In sum, the evidence of record does not show that the Veteran's traumatic brain injury residuals warrant more than a 40 percent disability rating under Diagnostic Code 8045 (2008) for the time period prior to October 23, 2008 or more than 40 percent for the time period from October 23, 2008 under Diagnostic Code 8045 (2012). Consequently, the Board concludes that the severity of the Veteran's disability has been fully contemplated by the 40 percent rating prior to and after October 23, 2008. As the preponderance of the evidence is against the claim for a higher rating than those assigned, there is no further doubt to be resolved. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board also finds that the Veteran's service-connected residuals of a brain concussion does not warrant an extraschedular rating. Extraschedular ratings may be assigned in exceptional cases. 38 C.F.R. § 3.321 (2012). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the rating criteria reasonably describe the Veteran's disability level for both his neuropsychiatric symptoms and his headaches and provide for higher ratings for additional or more severe symptomatology for his disability than is shown by the evidence. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate, and referral for consideration of extraschedular rating is not warranted. ORDER A rating in excess of 40 percent for residuals of a brain concussion is denied. A separate 10 percent rating for headaches as a residual of a brain concussion is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. REMAND Regarding the Veteran's claim for service connection for a psychiatric disorder, the Board remanded the matter in July 2010 for additional development. In particular, the Board requested that the Veteran be afforded an examination to determine the nature and etiology of any identified psychiatric disorder. The Veteran was afforded the requested VA examination in August 2010. The examiner diagnosed the Veteran with anxiety and depression. The examiner opined that the Veteran's depression and anxiety "could well relate to years of alcohol abuse and other illnesses, including his heart disease . . ." (emphasis added). This opinion is non-responsive to the July 2010 Board remand request as it merely presents an alternative basis for the diagnosed depression and anxiety without determining which is more likely, and whether the diagnosed depression and anxiety was aggravated by his service-connected traumatic brain injury. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot be used to support a claim). Hence, the August 2010 VA examiner's opinion as to this issue only is inadequate. As such, the Board finds that the Veteran should be afforded another advisory medical opinion to determine the etiology of his psychiatric disorder. Finally, because the Veteran's TDIU claim is inextricably intertwined with the claim of service connection for a psychiatric disorder, appellate consideration of entitlement to a TDIU rating is deferred pending resolution of the claim relating to a psychiatric disorder. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain copies of all pertinent outstanding VA treatment records dated from October 2010 to the present from the appropriate VA Medical Center. All information that is not duplicative of evidence already in the claims folder should be obtained. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his psychiatric disorder. The claims folder should be made available to and reviewed by the examiner, and the examination should be performed by an appropriate clinician. The examiner must review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies. Based on the examination results and record review, the examiner must state whether the Veteran has a psychiatric disability that is at least as likely as not related to or had its onset in service, to include having been caused or aggravated (permanently worsened) as a consequence of the service-connected residuals of a brain concussion. In making this determination, the examiner is asked to address the VA examination opinions already of record. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 3. Schedule the Veteran for an appropriate VA examination, to be conducted, if possible, by a vocational specialist. The claims folder should be made available to and reviewed by the examiner. All appropriate tests should be conducted. Thereafter, the examiner should opine as to whether, without regard to the Veteran's age or the impact of any nonservice-connected disabilities, it is at least as likely as not that his service-connected disabilities, either alone or in the aggregate, render him unable to secure or follow a substantially gainful occupation. A complete rationale for any opinion expressed and conclusion reached should be set forth in a legible report. 4. Then readjudicate the appeal. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond. The appellant 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 Supp. 2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs