Citation Nr: 1325883 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-21 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial rating in excess of 10 percent for post concussion syndrome associated with traumatic brain injury (TBI). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty for training from June 1984 to November 1984, and active duty from November 2004 to January 2006. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for joint pain of the arms and shoulders. However, in his July 2011 VA Form 9, the Veteran limited the appeal to the claim listed on the title page. As such, the claim for joint pain of the arms and shoulders is not currently on appeal. The Board has considered documentation included in the Virtual VA system in reaching the determination below. At present, the system contains VA treatment records that are not physically in the file, but that were considered by the RO in the last supplemental statement of the case. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Board finds that further development is necessary before the appeal can be properly adjudicated. In this case, in January 2010 the Veteran was afforded a VA neurological examination in connection with his claim for service connection. On examination, the Veteran complained of migraine-like headaches with a moderate level of fatigue. Since that time, the Veteran has alleged his condition has worsened. In his July 2010 Notice of Disagreement, the Veteran stated that his headaches were growing in severity and causing a lot of missed time at work. He was trying not to lose his job because of absenteeism. In his July 2011 VA Form 9, he stated he was having increased fatigability with his headaches, requiring longer periods of rest. He also contended that his symptoms were moderately or highly interfering with work. Further, given the Veteran's contentions regarding interference with employment, on remand, the examiner should opine on whether the Veteran's disability presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b) (2012). In this vein, the RO should provide the Veteran notice of the provisions of § 3.321(b). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a notice letter in connection with his claim for an increased rating for post concussion syndrome associated with TBI. The letter should advise him of the provisions for assigning extraschedular ratings pursuant to 38 C.F.R. § 3.321(b). 2. Afford the Veteran a VA examination using the comprehensive traumatic brain injury examination worksheet to determine the current severity of his service-connected post concussion syndrome associated with traumatic brain injury. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. All indicated tests, to include any and all neuropsychological studies, must be conducted. The examiner must comment upon the presence or absence, and the frequency or severity of the physical, cognitive, and behavioral/emotional manifestations due to traumatic brain injury residuals, to include headaches. The examiner must also offer an opinion as to whether the Veteran's disability causes significant interference with employment or requires frequent periods of hospitalization. The report of examination must include a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 3. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. After the development requested has been completed, the RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After the completion of any action deemed appropriate in addition to that requested above, the appellant's claim should be readjudicated. All applicable laws and regulations, and all evidence received, to include in the electronic claims file, should be considered. In readjudicating the claim, the RO should address the applicability of an extraschedular rating under 38 C.F.R. § 3.321(b). If the benefit sought remains denied, the appellant and his representative should be provided a supplemental statement of the case and given the opportunity 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). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2012).