Citation Nr: 1805142 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 08-31 275 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of ten percent for post-concussion type syndrome. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1969. This appeal initially came before the Board of Veterans' Appeals (Board) from a September 2007 decision issued by the Regional Office (RO). In June 2012 and August 2014, the Board remanded the appeal for further development of the record. In January 2016, the Board denied the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claim (Court). In April 2017, the Court granted the parties' Joint Motion for Vacatur and Remand (Joint Motion) and remanded the appeal to the Board. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the April 2017 Joint Motion, the parties agreed that vacatur of the January 2016 decision and remand were required because the Board failed to ensure substantial compliance with the directives of the August 2014 remand order and therefore relied upon an inadequate VA medical examination report to deny the claim. See Stegall v. West, 11 Vet.App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assist in determining the nature and severity of his post-concussion-type syndrome. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. The examiner must evaluate the severity of the Veteran's symptoms using criteria under Diagnostic Code 8045 as it existed prior to the October 23, 2008 revision. The examiner must identify any neurological disabilities, i.e., hemiplegia, epileptiform, seizures, facial nerve paralysis, etc., that manifested subsequent to the trauma to the brain and describe its symptoms and severity. The examiner must also identify any subjective complaints recognized as symptomatic of the brain trauma, i.e., headache, dizziness, insomnia, etc., and specifically determine if the Veteran had diagnosed multi-infarct dementia associated with the brain trauma. The examiner should also indicate which of the Veteran's symptoms - including sleep disturbances, irritability, dizziness, increased sensitivity to sound, increased sensitivity to light, nausea and any abnormal physical examination findings - are attributable to his post-concussion-type syndrome and which symptoms are attributable solely to posttraumatic stress disorder (PTSD), headaches or any other disability. If the examiner cannot provide the requested evaluation and information without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why such cannot be made without resorting to speculation. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran's post-concussion-type syndrome; however, his or her attention is drawn to the following: *June 2007 VA Neurological Examination (including headaches in the evaluation of the Veteran's post-concussion-type syndrome and noting abnormalities upon examination) *April 2009 VA Traumatic Brain Injury (TBI) Examination (attributing all of the Veteran's symptoms to his headaches and opining that his headaches are not related to his post-concussion-type syndrome) *July 2012 VA TBI Examination (opining that the Veteran's migraine-like headaches are at least as likely as not a result of the blast injury that also caused his post-concussion syndrome) *Headaches Disability Benefits Questionnaire (DBQ) report of September 2012 (documenting that the Veteran experienced pulsating or throbbing head pain that lasted less than one day in duration, two to three times per week with associated sensitivity to light and sound. The Veteran reported that he experienced characteristic prostrating attacks of migraine headache pain more frequently than once per month) *Residuals of TBI DBQ report of October 2014 (reflecting symptoms of cognitive impairment included complaint of mild memory loss, occasional disorientation to one of the four aspects of orientation and one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Headaches were documented as a subjective residual attributable to a TBI) *Residuals of TBI DBQ report of November 2016 (reflecting symptoms of cognitive impairment included complaint of mild memory loss, occasional disorientation to one of the four aspects of orientation and one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Headaches were documented as a subjective residual attributable to a TBI) *Headaches (DBQ) report of November 2016 (documenting that the Veteran experienced pulsating or throbbing head pain that lasted less than one day in duration on a daily basis with associated sensitivity to sound. The Veteran reported that he experienced characteristic prostrating attacks of migraine headache once in two months) *PTSD DBQ report of October 2016 (documenting diagnosis of PTSD. Symptoms of the Veteran's PTSD included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances including work or a worklike setting) THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 2. After completing all indicated development, the AOJ should readjudicate the claim. Thereafter, as indicated, the case should be returned to the Board for the purpose of appellate disposition. 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. §§ 5109B, 7112 (2012). _________________________________________________ Vito A. Clementi 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).