Citation Nr: 1752774 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 96-499 71 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a rating in excess of 40 percent for residuals of a traumatic brain injury (TBI), including headaches, from October 23, 2008. 2. Entitlement to a rating in excess of 10 percent for hemorrhoids. 3. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from June 1955 to May 1957 with additional periods of active duty for training in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 1996 rating decision, the RO denied an increased rating for residuals of a head injury. Following this rating decision, several Board decisions and Court of Appeals for Veterans Claims (CAVC) remands ensued. The latest CAVC remand issued in July 2015, vacated and remanded the Board's November 2014 decision, in part. Specifically, the parties filed a Joint Motion for Partial Remand (JMPR), which was granted by CAVC in an order dated in July 2015, which vacated and set aside the portion of the November 2014 decision of the Board to the extent that it denied entitlement to an evaluation in excess of 30 percent for headaches, as a residual of a TBI, from October 23, 2008. In the March 2003 rating decision, the RO denied a compensable disability rating for hemorrhoids. In a subsequent rating decision dated in March 2004, the RO increased the disability rating for the Veteran's service connected hemorrhoids to 10 percent. This matter was before the Board in July 2004, at which time it was remanded in order to obtain additional private treatment records and a VA examination. In a February 2014 rating decision, the RO denied entitlement to a TDIU and continued the 10 percent disability rating for hemorrhoids. All pending matters were before the Board in December 2015, at which time they were remanded for additional development, including issuance of a Statement of the Case (SOC) and obtaining additional treatment records and a VA examination to address the level of severity of the Veteran's residuals of TBI, including headaches, from October 23, 2008. In a rating decision dated in June 2017, the RO assigned a retroactive disability rating of 40 percent for a head injury with headaches, effective October 23, 2008. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Increased rating for residuals of a traumatic brain injury (TBI), including headaches, from October 23, 3008 At the outset, the Board finds that the RO failed to retrieve all of the Veteran's VA treatment records since May 1, 2013, per the December 2015 remand instructions. Specifically, after a review of the file, it appears that the Veteran received all of his care at the Jackson Clinic in Jackson, Tennessee, and his Primary Care Physician (PCP) is T.T., M.D. See 11/14/2016, VBMS, CAPRI, p. 6. Furthermore, the Board finds that the VA examinations performed in December 2016 and February 2017 and the addendum opinion rendered in June 2017 are insufficient to assess the severity of the Veteran's residuals of TBI from October 23, 2008, to April 30, 2013. With regard to the VA examination performed in February 2017, the examiner failed to provide any opinion regarding the severity of the Veteran's TBI related headaches from October 23, 2008, to May 1, 2013. Furthermore, the examiner provided an addendum opinion in June 2017 and opined that the cognitive manifestations of the Veteran's service connected TBI from October 23, 2008, to April 30, 2013, would best be evaluated by the TBI DBQ performed in May 2013. The Board finds that the examiner provided no rationale for his conclusion that the cognitive manifestations of the Veteran's service connected head injury with headaches from October 23, 2008, to April 30, 2013, were evaluated in the May 2013 VA examination. Furthermore, the CAVC and Board found that the May 2013 examination was insufficient because it failed to render any opinion as to the level of severity of the Veteran's residuals of TBI for the period from October 23, 2008. Accordingly, the Board is not able to rely on this insufficient June 2017 addendum opinion to assess the level of severity of the Veteran's TBI residuals, including headaches, from October 23, 2008, to April 30, 2013. In light of the above, the Board finds that a remand is necessary in order to obtain outstanding VA treatment records and an addendum opinion to assess the severity of the Veteran's TBI residuals, including headaches, from October 23, 2008, to May 1, 2013. Increased rating for hemorrhoids In July 2004, the Board remanded this matter for a VA examination to be scheduled in order to assess the severity of the Veteran's service connected hemorrhoids. An examination was scheduled for 2013 but he failed to appear. The Veteran subsequently clarified that he was in the hospital at the time the 2013 examination was scheduled and would be willing to undergo a VA examination. Accordingly, the Board finds that good cause exists to schedule a VA examination to assess the current severity of the Veteran's service connected hemorrhoids. As discussed above, the Board finds that a remand is necessary to obtain outstanding VA treatment records. Furthermore, after a review of the record, the Board finds that the RO failed to request and obtain records from Dr. Barton Chase as mandated in the July 2004 Board remand instructions. Accordingly, the Board finds that a remand is necessary in order for the RO to obtain any outstanding VA and private treatment records and a VA examination to assess the current severity of the Veteran's service connected hemorrhoids. TDIU The Veteran asserts that he is unable to work due, at least in part, to his service connected head injury and hemorrhoids. Accordingly, the Board finds that the issue of entitlement to a TDIU is intertwined with the issues of increased ratings for residuals of a TBI and hemorrhoids and will defer adjudication of the claim at present. Accordingly, the case is REMANDED for the following actions: (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. Obtain and then associate with the claims file the Veteran's VA treatment records from May 1, 2013, to the present, including from VA Jackson Clinic in Jackson, Tennessee. 2. Obtain updated authorization and then associate with the claims file the Veteran's private treatment records from Dr. Barton Chase from November 2002 to the present. 3. After completion of #1 and #2, forward the claims file, including a copy of this remand, to the December 2016, and February 2017 examiner for an addendum opinion as to the severity of the Veteran's TBI residuals, including headaches, from October 23, 2008, to May 1, 2013. (If the examiner is not available, the file should be forwarded to another appropriate individual for an opinion. A new VA examination should be scheduled only if deemed necessary by the examiner.). The examiner should review the claims folder, to include any newly associated records obtained as a result of this remand. During the time period of October 23, 2008, to May 1, 2013, the examiner should provide an opinion addressing the degree to which the service connected TBI is manifested by facets of cognitive impairment, including memory, attention, concentration, executive functions, judgment, social interaction, orientation, motor activity, visual spatial orientation, subjective symptoms, neurobehavioral effects, communication, and consciousness. During the time period of October 23, 2008, to May 1, 2013, the examiner should provide an opinion as to frequency and severity of his headaches, whether these headaches are characteristic of prostrating attacks, and whether they are productive of severe and economic inadaptability. The examiner is to provide an opinion regarding the impact of the residuals of his TBI, including headaches, on the Veteran's ability to work. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. After completion of #1 and #2, schedule the Veteran for a VA examination to determine the current nature and severity of his service connected hemorrhoids. Any indicated tests should be accomplished. The examiner should review the claims folder, to include any newly associated records obtained as a result of this remand. The examiner should comment on the current state of the hemorrhoids and indicate the manifestations, including whether the hemorrhoids are large or thrombotic; irreducible, with excessive redundant tissue, evidencing frequent recurrences; and/or whether there is persistent bleeding with secondary anemia or with fissures. The examiner is to provide an opinion regarding the impact of the hemorrhoids on the Veteran's ability to work. The examiner must provide a rationale for all opinions provided. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 5. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ ERIC S. LEBOFF 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) (2017).