Citation Nr: 1331890 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 11-03 088 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial compensable disability rating for service-connected residuals of traumatic brain injury (TBI), including headaches. 2. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on several periods of active duty, including from March to June 1973, April to December 2000, January 2003 to April 2004, and from August 2005 to October 2006. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) above. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals documents which are either duplicative of those already in the claims file or not pertinent to the present appeal. For reasons discussed below, the appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Veteran is seeking an initial, compensable disability rating for his service-connected residuals of traumatic brain injury (TBI), including headaches. Parenthetically, the Board notes that evaluation of a residual TBI disability generally involves consideration of whether the residual disability is manifested by a myriad of symptoms or disabilities involving, but not limited to, cognitive, emotional/behavioral, and physical functioning, each of which may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045. Turning to the merits of this claim, review of the record shows the Veteran was last afforded a VA TBI examination in July 2010 to evaluate his residual TBI disability. At that examination, the VA examiner noted the Veteran's current symptoms, including headaches, photophobia, phonophobia, light sensitivity, dizziness, and fatigue (which the examiner stated is likely due to sleep disturbance). The Veteran denied experiencing a host of symptoms, including speech problems or bowel or bladder problems. The VA examiner also noted that any issues of sleep disturbance, cognitive problems, memory impairment, psychiatric symptoms, and neurobehavioral symptoms are addressed in a separate report of psychiatric evaluation. Likewise, while the VA examiner noted the Veteran's report of photophobia and light sensitivity, a VA eye examination was not conducted to evaluate the severity of any eye disability manifested as a residual of his TBI disability. Therefore, because the July 2010 VA examination did not adequately address each potential residual or symptom related to the Veteran's residual TBI disability, including hearing loss, tinnitus, or an eye disability, the Board is unable to assess the appropriate disability rating to be assigned for the service-connected residual TBI disability. As such, another VA TBI examination is warranted. In addition to the TBI increased rating claim, the Veteran is also seeking a higher disability rating for service-connected PTSD. As noted above, evaluation of a service-connected residual TBI disability involves consideration of whether the disability is manifested by a cognitive impairment or psychiatric manifestations. In this case, however, entitlement to service connection for PTSD was established in July 2007, before entitlement was established for the residual TBI disability in July 2010, and the clinician who conducted the July 2010 VA mental examination stated that the Veteran does not exhibit a cognitive disorder due to an in-service TBI. Nevertheless, the Board finds that the increased rating claim for PTSD is inextricably intertwined with the increased rating claim for the residual TBI disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Indeed, it is likely that the new TBI examination conducted on remand will garner information and evidence that may be relevant to the increased rating claim for PTSD on appeal, as an adequate TBI examination should include consideration of whether the residual TBI disability is manifested by psychiatric and/or neurobehavioral symptoms. In addition, while the physician who conducted the July 2010 VA TBI examination noted the Veteran's reported fatigue is likely due to his sleep disturbance - which was noted to be discussed in the separate psychiatric evaluation - the clinician who conducted the July 2010 VA mental examination did not provide any information regarding fatigue or sleep disturbance. As a result, there remains a question as to whether the Veteran's residual TBI disability is manifested by fatigue or sleep disturbance. Therefore, on remand, the Veteran should be afforded a separate psychiatric evaluation to determine if the Veteran's service-connected residual TBI disability is manifested by fatigue or other psychiatric or neurobehavioral symptoms that are attributable to the in-service TBI. Finally, recent VA medical records should also be obtained, as the evidentiary record does not contain VA treatment records dated from July 2010 to the present. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). For the foregoing reasons, the case is remanded to the AOJ for the following: 1. Obtain copies of all relevant VA treatment records from the Omaha, Nebraska, VA Medical Center dated from July 2010 to the present. Such records must either be printed and associated with the Veteran's paper claims file, or uploaded into the Veteran's electronic file contained in the Virtual VA system. If the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an appropriate VA examination to determine the nature and extent of any current manifestations of his service-connected residuals of TBI, including headaches. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand should be made available for review in connection with the examination. The examiner should address the severity of the Veteran's service-connected residuals of TBI, including headaches, consistent with the criteria for evaluating residuals of TBI under DC 8045. The examiner should specifically describe any additionally-documented symptoms and/or residuals found to be manifested in the course of the examination. For each separately diagnosed disability that is deemed related to the Veteran's TBI, provide the Veteran with a separate examination in accordance with the relevant Compensation and Pension Examination Guidelines. With respect to headaches, the VA examiner is specifically requested to address whether the symptoms related to the Veteran's headaches are shown to be in the form of (1) less frequent attacks, (2) characteristic prostrating attacks averaging one in 2 months over the last several months, (3) characteristic prostrating attacks occurring on an average once a month over the last several months, or (4) with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability? See Diagnostic Code 8100, 38 C.F.R. § 4.124a. 3. After completion of the above, the Veteran should be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected PTSD. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with the examination and the examination report should reflect review of these items. All indicated tests and studies should be performed, and the examiner is asked to describe in detail all symptomatology associated with the Veteran's service-connected PTSD. The Veteran's lay statements regarding the severity of his symptomatology should also be considered and discussed. The clinician who conducts the VA mental examination must address whether the Veteran experiences a sleep disturbance and/or fatigue as a residual manifestation of his TBI disability. Finally, the examiner is asked to opine as to whether the Veteran's PTSD renders him unable to obtain or maintain substantially gainful employment. A complete rationale must be provided for all opinions offered. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Thereafter, review the claims folder and ensure that the foregoing development actions, as well as any other development that may be in order, have been conducted and completed in full. Review the examination report to ensure that it is in complete compliance with the directives of this REMAND (to include ensuring that all questions have been adequately answered). If the report is deficient in any manner, implement corrective procedures. 5. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, and he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is hereby notified that it is his responsibility to report for a VA 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).