Citation Nr: 1627653 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 12-22 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a compensable rating prior to March 20, 2013, and to a rating in excess of 10 percent thereafter, for headaches. 2. Entitlement to a compensable rating for traumatic brain injury (TBI). 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disease or injury (TDIU). REPRESENTATION Veteran represented by: John S. Berry, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran, his spouse, and his son ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from August 1969 to June 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Montgomery, Alabama and Lincoln, Nebraska. In April 2015, the Board remanded the appeal in order to schedule a hearing before a Veterans Law Judge. In April 2016, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of the hearing is of record. The issues of entitlement to service connection for dementia and early-onset Alzheimer's, to include as secondary to service-connected TBI and/or headaches, have been raised by the record, primarily in a May 2016 private medical opinion and in statements of the Veteran, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board notes that the Veteran has reported that his headaches and TBI residuals have worsened since his last VA examination. See January 2016 Statement in Support of Claim. In December 2014, the Veteran requested another TBI examination to evaluate the severity of his symptoms and reassess whether his cognitive impairment is related to his service-connected TBI. Such an examination has not been provided. The record includes a private medical opinion, submitted in May 2016, purporting to link his cognitive impairment (diagnosed as dementia) with his TBI. This opinion conflicts with the prior VA TBI examination report, which found that the Veteran's cognitive deficits were not attributable to his TBI. In light of the above, the Board finds that additional VA examinations are required to evaluate the Veteran's service-connected headaches and TBI residuals. On remand, VA examiners should consider the functional impact of these conditions on the Veteran's employability. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify and provide authorization to obtain any outstanding, relevant medical records regarding his service-connected TBI residuals and headaches. After securing the necessary authorization, these records should be requested. If any records are not available, the Veteran should be notified of such. 2. Schedule the Veteran for a VA examination with a TBI specialist to determine the current nature and severity of his service-connected TBI. The examiner should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with the Veteran's service-connected TBI residuals. The examiner is asked to address whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cognitive impairment, to include diagnoses of dementia and early-onset Alzheimer's, was caused or aggravated by his service-connected TBI and/or headaches. In this regard, specifically discuss the findings from the March 2013 VA TBI examination as well as the May 2016 nurse practitioner's opinion purporting to link the Veteran's TBI with his dementia. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 3. Schedule the Veteran for a VA examination with a headache specialist to determine the current nature and severity of his service-connected headaches, including effects on employability. The examiner should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should record the nature and frequency of the Veteran's headaches, and any effects on employment. In particular, the examiner should opine as to whether headache attacks are (a) very frequent, (b) completely prostrating and prolonged, and (c) productive of severe economic hardship. A complete rationale should accompany each opinion provided and should be based on examination findings, historical records, and medical principles. 4. After conducting any other necessary development, readjudicate the claims. If any of the benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be given an opportunity to respond thereto. The Veteran 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). These claims 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 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).