Citation Nr: 1326239 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 11-31 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for residuals of a traumatic brain injury. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from October 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Des Moines, Iowa. The June 2009 rating decision also denied service connection for PTSD and for erectile dysfunction, claimed as secondary to a service-connected disability. The Veteran initiated appeals of these determinations. In an October 2011 rating decision, the RO granted the Veteran service connection for PTSD and for erectile dysfunction. Because the appellant was awarded service connection for these disabilities, these issues are no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). 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 Service Connection - Residuals of a Traumatic Brain Injury The Veteran seeks service connection for residuals of a traumatic brain injury allegedly experienced while on active duty. In November 2008, he was referred by VA for a neuropsychological evaluation by a private examiner. This evaluation was scheduled as part of his service connection claim for residuals of a traumatic brain injury. Upon review of this examination report, the Board observes that the final page (page 5) of the report is not of record. As this page is necessary for adjudication of the Veteran's pending claim, remand is required in order to obtain this pertinent evidence. Next, the Veteran was examined by a VA examiner in October 2008 for evidence of residuals of a traumatic brain injury. This examination was scheduled prior to the Veteran's mental health and neuropsychological evaluations, however, causing the examiner to state that a determination of the presence of current residuals of a traumatic brain injury would be "difficult to assess at this time without assessment by mental health and neuropsych." As such assessments are necessary for adjudication of the pending claim, remand is required for such a medical opinion rendered in light of the subsequent VA psychiatric and neuropsychological examinations. TDIU The Veteran also seeks a TDIU. Adjudication of the Veteran's TDIU claim must, however, be deferred, as this issue is inextricably-intertwined with the service connection issue being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Contact the private examiner who conducted the November 2008 VA contract neuropsychological evaluation and request a complete copy of the evaluation report. If a complete copy is not available, that fact must be noted for the record. 2. After all of the above development is completed, the Veteran should be scheduled for a VA neurological examination to assess whether he has residuals of a traumatic brain injury, to include as sustained during active duty service. The claims folder should be provided to the examiner and should be reviewed by the examiner in connection with the examination. Any testing deemed necessary by the examiner should be performed. The examiner should specifically note all evidence regarding the purported incidents that the Veteran claims to have occurred during active duty service. After all necessary testing, the examiner should report whether the Veteran currently has residuals of a traumatic brain injury. If residuals of a traumatic brain injury are diagnosed, the examiner should render the following opinion: If residuals of traumatic brain injury are found, is at least as likely as not (50 percent probability or greater) that these residuals are related to any incident of active duty service? A rationale should be provided, to include, if applicable, an explanation of how the clinical findings support a diagnosis of traumatic brain injury. The term "at least as likely as not" does not mean within the realm of medical possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 3. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claims for service connection for a traumatic brain injury and for a TDIU in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ K. J. ALIBRANDO 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).