Citation Nr: 1641629 Decision Date: 10/27/16 Archive Date: 11/08/16 DOCKET NO. 11-26 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for residuals of a traumatic brain injury, to include dizziness. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty in the Army from February 2004 to September 2007. He received various decorations evidencing combat including the Combat Infantryman Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, that granted service connection and a 10 percent rating for residuals of a traumatic brain injury, to include dizziness, effective September 10, 2007. In February 2008 and March 2010 rating decisions, the RO denied claims for a TDIU. Although those rating actions were not appealed, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Board finds that a TDIU rating is part of the claim for a higher rating on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was last afforded a VA traumatic brain injury examination in August 2011. The diagnoses were a mixed headache disorder, muscle contraction and tension, with occasional common migraines, and episodic transient dizziness. Since that time, in a September 2011 VA Form 9, he reported that he should have been assigned a higher level of severity in regard to the subjective symptoms facet of cognitive impairment and other residuals of a traumatic brain injury, not otherwise classified, because of his marked fatigability and headaches that required rest periods during most days. He also stated that he should have been assigned a higher level of severity for the neurobehavioral effects facet as his current symptoms negatively interfered with workplace interaction and social interaction at most, or at all, times. Additionally, in an August 2016 informal hearing presentation, the Veteran's representative stated that the Veteran was last afforded a VA traumatic brain injury examination more than five years ago. The representative essentially indicated that the medical evidence in the record was not adequate and that the case should be remanded for further development. The Veteran has received VA treatment on multiple occasions, including treatment relative to his service-connected residuals of a traumatic brain injury, to include dizziness, subsequent to the September 2011 VA traumatic brain injury examination. The Veteran has not been afforded a VA examination, as to his service-connected residuals of a traumatic brain injury, to include dizziness, in more than five years and the record raises a question as to the current severity of the Veteran's service-connected residuals of a traumatic brain injury, to include dizziness. As such, the Board finds it necessary to remand this matter to afford him an opportunity to undergo a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). In addition, the Board notes that the Court has noted that VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement special monthly compensation (SMC) under 38 U.S.C.A § 1114. See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim"). Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU rating independent of the other 100 percent disability rating. See Bradley, 22 Vet. App. 280, 294 (2008); see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU rating independent of the other 100 percent disability rating). The Veteran is assigned a 100 percent rating for posttraumatic stress disorder (PTSD), effective May 12, 2012. There is a pending claim for a higher rating for residuals of a traumatic brain injury. Given VA's obligation to maximize the Veteran's benefits, VA must determine whether the Veteran meets the criteria for a TDIU based on the impact of his service-connected disabilities, without consideration of his PTSD. As such, the Veteran's claim for a TDIU is inextricably intertwined with his claim for a higher rating for residuals of a traumatic brain injury, to include dizziness, and these matters must be addressed together on remand. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Ask the Veteran to identify all medical providers who have treated him for residuals of a traumatic brain injury, to include dizziness, since April 2016. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims folder. Document any unsuccessful efforts to obtain the records, inform the Veteran of such, and advise him that he may obtain and submit those records himself. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed, of the nature, extent, and severity of his service-connected residuals of a traumatic brain injury, to include dizziness, and the impact of such condition on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Thereafter, schedule the Veteran for an appropriate VA examination to determine the extent and severity of his service-connected residuals of a traumatic brain injury, to include dizziness. The file should be reviewed and all signs and symptoms of the service-connected residuals of a traumatic brain injury, to include dizziness, must be reported in detail. 4. Then readjudicate the appeal. If either of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). 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 2014). _________________________________________________ STEVEN D. REISS 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).