Citation Nr: 1802133 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-18 943 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to an initial rating in excess of 40 percent for post-traumatic headaches with episodic migraine-like vertiginous symptoms and periodic clustering of events, status post head injury. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Clark, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1989 to October 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2011 by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for post-traumatic headaches with episodic migraine-like vertiginous symptoms and periodic clustering of events, status post head injury, with an initial noncompensable rating, effective August 31, 2011. During the course of the appeal, in a June 2013 rating decision, the RO granted an increased rating of 40 percent for the Veteran's service-connected head injury residuals. Despite the award of a 40 percent rating, the Veteran has not been awarded the highest possible evaluation and he is presumed to be seeking the maximum possible evaluation. Thus, as the Veteran has not indicated satisfaction with the award of the 40 percent rating, the issue remains on appeal. A.B. v. Brown, 6 Vet. App. 35 (1993). In December 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). In this regard, the Board observes that the Veteran was afforded a VA examination in May 2012 in order to ascertain the nature and severity of his head injury residuals. However, at the December 2016 Board hearing, the Veteran testified that such symptomatology increased in severity since his last examination and has resulted in a negative impact on his job in that he has dizziness, communication difficulties, difficulty concentrating, anxiety, disorientation, memory problems, and difficulty sleeping, and takes leave due to the severity of his headaches. Therefore, the Board finds that a remand is warranted in order to provide the Veteran another VA examination to assess the current nature and severity of his head injury residuals. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board also notes that the Veteran's service-connected head injury residuals is evaluated pursuant to Diagnostic Code (DC) 8045, which contemplates cognitive, emotional/behavioral, and physical dysfunction of residuals of traumatic brain injury (TBI). Such areas of dysfunction should be rated based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. This table includes various facets of TBI residuals, including memory, attention, concentration, executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; and subjective symptoms. Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, should be evaluated under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, VA is to separately evaluate any residual with a distinct diagnosis that may be evaluated under another DC, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. In this regard, several disability benefits questionnaires (DBQ) were received in April 2012 from the Veteran's treating VA clinician relating to his head injury residuals. Such clinician diagnosed the Veteran with chronic post-traumatic headache, cluster headache syndrome, and migraine variant. Additionally, the May 2012 VA examiner noted that the Veteran had diagnoses of TBI and post-traumatic headaches with migrainous and cluster features as a residual attributable to his TBI. As mentioned above, any residual with a distinct diagnosis such as migraine headache, should be evaluated separately under another DC instead of the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Thus, on remand, the examiner should clarify whether the Veteran has a migraine headache disorder as a residual of his in-service head injury and the AOJ should rate such disorder appropriately. Furthermore, at the December 2016 Board hearing, the Veteran stated that he had trouble sleeping, which he alleged was related to his head injury residuals. In this regard, the Board notes that the Veteran is separately service-connected for obstructive sleep apnea, which was not found to be a residual of his TBI. Thus, on remand, the examiner should also distinguish whether the Veteran's trouble with sleeping is related to his head injury residuals or his sleep apnea. Finally, as the Veteran has testified that he receives all of his treatment through the VA system, updated VA treatment records dated from January 2014 to the present should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records dated from January 2014 to the present from the San Diego facility and its outpatient clinics. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected head injury residuals. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review in connection with the examination. The examiner should identify the nature and severity of all manifestations of the Veteran's head injury residuals, including the levels of impairment resulting from the facets of cognitive impairment and other residuals of TBI. The examiner should also clarify if the Veteran has a migraine headache disorder associated with his TBI. If the examiner does not find that the Veteran has a diagnosis of a migraine headache disorder, he or she should reconcile such finding with the April 2012 DBQ indicating the Veteran has a diagnosis of migraine variant. The examiner should also provide a full description of any scars associated with the Veteran's service-connected head injury residuals, including the dimensions of any such scars and information as to whether the scars are deep (i.e., associated with underlying soft tissue damage) or superficial; whether they are unstable; and whether they are tender and painful on examination. If such a scar exists, the findings related to same should be documented in a completed disability benefits questionnaire form. If the examiner does not find that the Veteran has a scar, he or she should reconcile such finding with the April 2012 DBQ indicating the Veteran has a 1 centimeter scar on his scalp. The examiner should further determine if the Veteran's trouble of sleeping is attributed to his service-connected sleep apnea or his service-connected head injury residuals. A rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. The AOJ should consider the provision of DC 8045 that directs the adjudicator to separately evaluate any TBI residual with a distinct diagnosis that may be evaluated under another DC, to include migraine headaches. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. §§ 5109B, 7112 (2012). _________________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).