Citation Nr: 1512530 Decision Date: 03/24/15 Archive Date: 04/01/15 DOCKET NO. 12-31 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for concussion, residuals of a head injury. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Neilson, Counsel REMAND The Veteran had active service from May 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. The Board notes that the instant matters were most recently before it in September 2013, at which time the Board denied a rating greater than 10 percent for the Veteran's service-connected concussion resulting from a head injury sustained in service and denied TDIU. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In December 2014, the Veteran's then-representative and VA's General Counsel filed a joint motion with the Court to vacate the Board's decision with respect to the Board's denial of TDIU and an of increased rating for the Veteran's service-connected concussion, which motion was granted by the Court the same month. (A copy of the Joint Motion has been associated with the Veteran's VBMS file.) The basis for the Joint Motion included the Board's failure to provide an adequate statement of reasons or bases for concluding that the Veteran was not entitled to TDIU or to a separate evaluation for his psychiatric symptoms and its reliance on an inadequate examination to deny a rating in excess of 10 percent for the Veteran's concussion. In the instant case, compliance with terms of the parties Joint Motion requires the Board to remand the issue of entitlement to a rating in excess of 10 percent for the Veteran's concussion for further development. In this regard, the parties agreed that it is unclear from a March 2009 VA examination report whether objective testing was undertaken, or necessary, to determine to extent and severity of the Veteran's cognitive impairment. (The Board notes that its prior decision referred to a March 2009 VA examination; however, as pointed out by the parties, the examination took place February 2009, but the report was not completed until March 2009. To avoid confusion, the Board will continue to refer to this examination as the March 2009 VA examination, as that is what the Joint Motion refers to.) The March 2009 examination report indicates that brief cognitive screening was administered during the examination. The examiner stated, however, that formal neuropsychological testing might be considered to evaluate the extent and severity of the mild cognitive impairments exhibited during the examination. Given the indication that additional testing may be warranted, and because a number of years have passed since the Veteran was last examined, the Board finds that that the matter should be remanded for the Veteran to be scheduled for a VA examination to determine the severity of his service-connected concussion. Regarding entitlement to a separate rating for the Veteran's psychiatric symptoms, the parties noted that 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045, pertaining to the evaluation of traumatic brain injury (TBI) residuals, provides that emotional and behavioral dysfunction should be evaluated under 38 C.F.R. § 4.130 when there is a diagnosis of a mental disorder, or under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" when there is no diagnosis of a mental disorder. 38 C.F.R. § 4.124a, DC 8045 (2014). In its September 2013 decision, the Board acknowledged that a June 2009 initial psychiatric assessment resulted in a diagnosis of a mood disorder due to TBI with mixed features, but relied on the reports of March 2009 and June 2011 VA examinations, which failed to indicate that the Veteran had a distinct mental disorder related to his trauma, to find that service connection for a separately diagnosed psychiatric disability was not warranted. Although the June 2009 VA clinician's diagnosis is favorable to the Veteran, the Board notes that the treatment note contains no supporting rationale for why it is felt that the Veteran's mood disorder is related to his TBI. While there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion, Ardison v. Brown, 6 Vet. App. 405, 407 (1994), to be adequate, an opinion must be supported with an analysis that the Board can consider and weigh against contrary opinions, Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding, in the context of weighing one medical opinion with another, that "[i]t is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion"). The March 2009 VA examiner's opinion that the Veteran did not suffer from a separate and distinct mental disorder related to his TBI is equally unsupported by any rationale. Given the conflicting opinions, neither of which provide an analysis that the Board can rely upon to conclude that one opinion is more probative than the other, the Board finds that further development is necessary before it can determine whether in fact a separate evaluation is warranted under 38 C.F.R. § 4.130 for the Veteran's psychiatric symptoms. Concerning the issue of entitlement to TDIU, the parties agreed that the Board had erred in failing to consider the occupational impact of the Veteran's stroke, for which he was awarded service connection in July 2013. The evidence currently before the Board does not contain an opinion regarding the effect of the Veteran's stroke on his ability to engage in substantially gainful employment. Accordingly, this matter too must be remanded for further development. See 38 U.S.C.A. § 5103A(d) (West 2014); Friscia v. Brown, 7 Vet. App. 294, 297 (1995) (stating that VA has a duty to supplement the record by obtaining an examination, which includes an opinion on what effect the appellant's service-connected disability has on his ability to work). Accordingly, the case is REMANDED to the AOJ 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). Expedited handling is requested.) 1. The AOJ should schedule the Veteran for a VA examination to determine the severity of the Veteran's concussion related to his in-service TBI. The claims file, to include a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. All appropriate tests and studies should be performed, to include formal neuropsychological testing designed to assess the severity of the cognitive impairments exhibited during the VA examination performed in February 2009, the report of which is dated in March 2009, and all clinical findings should be reported in detail. The claims folder must be provided to and reviewed by the VA examiner in connection with the examination. In evaluating the Veteran, the VA examiner should consider the three main areas of dysfunction listed in the rating criteria under 38 C.F.R. § 4.124a and should make all findings necessary to apply the rating criteria. If deemed necessary, additional evaluation in one or more of these areas of dysfunction should be obtained so that there may be a complete picture of the Veteran's current residuals of TBI. 2. The Veteran should be scheduled for a separate psychiatric examination to determine whether the Veteran suffers from a diagnosed mental disorder related to his TBI. The claims folder must be provided to and reviewed by the VA examiner in connection with the examination. All appropriate tests and studies should be performed and all clinical findings should be reported in detail. The examiner should review the claims folder, to include all previous VA examination report and the report of the June 2009 psychiatric assessment, and take a detailed psychiatric history from the Veteran. The examiner should state whether the Veteran meets the criteria for diagnosis of a mood disorder or any other psychiatric disorder. If the examiner determines that a psychiatric diagnosis cannot be rendered, the examiner must explain what required symptoms or evidence is lacking and should discuss why he/she disagrees with the June 2009 VA clinician's diagnosis of a mood disorder. As to any diagnosed psychiatric disorder, the examiner should opine as to whether it is at least as likely as not that the psychiatric disorder(s) is/are proximately due to or the result of the Veteran's concussion and/or in-service TBI. 3. After the actions requested in paragraphs 1 and 2 above are completed, the AOJ should arrange for the Veteran's claims folder to be reviewed by a VA clinician, or multiple clinicians if necessary, with the appropriate expertise to render an opinion as to whether the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment consistent with his education and occupational experience. The clinician(s) should review the claims file and provide findings that take into account all functional impairments due to the Veteran's service-connected disabilities. The clinician should then opine whether it is at least as likely as not that the Veteran is unable to secure or follow substantially gainful employment consistent with his education and occupational experience due to his service-connected disabilities. If the clinician finds that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment only in combination with nonservice-connected disabilities, the examiner should say so. A rationale for the opinions provided, to include citation to pertinent evidence of record and/or medical authority, as appropriate, should be set forth. If it is felt that the requested opinion cannot be rendered without resorting to speculation, the clinician should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If additional examination of the Veteran is required to render the requested opinion regarding employability, the Veteran should be afforded all necessary examinations. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues of entitlement to TDIU and to a rating in excess of 10 percent for the service-connected concussion, which should include consideration of whether a separate evaluation of any psychiatric disorder is warranted. If any benefit sought is not granted, the Veteran should be furnished with a supplemental statement of the case (SSOC) and afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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) (2014).