Citation Nr: 18148731 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 09-46 989 DATE: November 8, 2018 ORDER The appeal concerning entitlement to an earlier effective date of June 7, 1993 for the grant of service connection for traumatic brain injury is dismissed. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected traumatic brain injury is remanded. Entitlement to a higher disability rating for post traumatic headaches/migraines, currently with a 10 percent disability rating prior to June 6, 2016 and a 30 percent disability rating thereafter, is remanded. Entitlement to a higher initial disability rating for service-connected bilateral hearing loss, currently with a noncompensable evaluation prior to August 7, 2014 and 30 percent evaluation thereafter, is remanded Entitlement to an effective date prior to July 2, 2014 for the award of a separate compensable disability rating for traumatic brain injury is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability is remanded. FINDINGS OF FACT 1. In an August 1995 rating decision, the RO granted service connection for “post traumatic headaches” and assigned an evaluation under Diagnostic Code 8045-9304, for brain disease due to trauma, made effective June 7, 1993; brain disease due to trauma is another name for traumatic brain injury. 2. The Veteran claimed entitlement to an earlier effective date of June 7, 1993 for the grant of service connection for traumatic brain injury, and he is in receipt of such; there is no case or controversy as to the issue of entitlement to an effective date prior to July 2, 2014 for the grant of service connection for traumatic brain injury. CONCLUSION OF LAW The Board lacks jurisdiction over the issue of entitlement to an earlier effective date of June 7, 1993 for the grant of service connection for traumatic brain injury because that effective date has already been granted and the appeal is thusly moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1953 to April 1955 with additional service in the Army National Guard of the Commonwealth of Puerto Rico from June 1960 to June 1963 and November 1970 to June 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2008, February 2010, and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The October 2008 decision continued the 10 percent disability rating for post traumatic headaches and denied service connection for migraine headaches, the February 2010 decision instituted the grant of service connection for bilateral hearing loss made by the Board in October 2009 and awarded a noncompensable disability rating effective April 24, 2002, and the September 2014 decision granted service connection for TBI and awarded a 10 percent disability rating effective July 2, 2014. The RO granted an earlier effective date of March 4, 2002 for the award of service connection for bilateral hearing loss in a February 2010 rating decision, and in a September 2014 rating decision, increased the evaluation for hearing loss from a noncompensable disability rating to 30 percent effective August 7, 2014. However, as this increase did not constitute a full grant of the benefits sought, the Veteran’s claim for a higher disability rating remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). In November 2015, the Board issued a decision denying a disability rating in excess of 10 percent for service-connected post traumatic headaches. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a June 2016 Order, the Court vacated the November 2015 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). In a June 2016 rating decision, the RO granted the Veteran’s claim for service connection for migraine headaches, and increased the disability rating for post traumatic/migraine headaches from 10 percent to 30 percent effective June 6, 2016. However, as this increase did not constitute a full grant of the benefits sought, the Veteran’s claim for a higher disability rating remains in appellate status. See AB, 6 Vet. App. at 38- 39. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability when it is asserted that the unemployability is based, at least in part, upon functional impairment resulting from the underlying disability for which a higher rating is being sought. In May 2015, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, on which he stated that his service connected disabilities, including head trauma and hearing loss, prevent him from securing or following any substantially gainful occupation. A claim for entitlement to a TDIU has therefore been raised in connection with the claims for higher ratings for service connected bilateral hearing loss and post traumatic/migraine headaches. The Board remanded the case for further development in December 2016 and April 2018. It has since been returned to the Board for appellate review. Entitlement to an effective date prior to July 2, 2014 for the grant of service connection for traumatic brain injury (TBI). Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. The Veteran submitted his claim for entitlement to service connection for headaches as a residual of head injury in April 1994. The RO originally granted service connection for “post traumatic headaches” in an August 1995 rating decision, and assigned a 10 percent disability rating under Diagnostic Code (DC) 8045-9304, which at the time was the diagnostic code used for rating dementia due to head trauma. Prior to the revision to the criteria for evaluating TBI, effective October 23, 2008, purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were to be rated 10 percent and no more under Diagnostic Code 9304, not to be combined with any other rating for a disability due to brain trauma. A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 was not assignable in the absence of multi-infarct dementia associated with brain trauma. 38 C.F.R. §§ 4.124a, Diagnostic Codes 8045, 9304 (effective prior to October 23, 2008). The RO specifically referenced this language in the August 1995 rating decision. The criteria and nomenclature for Diagnostic Code 8045 were revised during the pendency of this appeal. See 73 Fed. Reg. 54693 (Sept. 23, 2008), and the effective date for these revisions is October 23, 2008. See also 38 C.F.R. § 4.124a, Note (5). Prior to the revision, Diagnostic Code 8045 was used to evaluate “brain disease due to trauma,” while post-revision Diagnostic Code 8045 refers to “Residuals of traumatic brain injury (TBI)”. While the criteria used for rating this disability were significantly modified, both the old DC 8045 and new DC 8045 refer to the same disability, by slightly different names. When the RO granted service connection for post traumatic headaches and assigned a rating under DC 8045-9304 effective from June 7, 1993, it granted service connection for residuals of traumatic brain injury/brain disease due to trauma from the day following the Veteran’s separation from active military service. As this is the earliest possible date for an award of service connection for this disability, there is no case or controversy as to the issue of entitlement to an effective date prior to July 2, 2014 for the grant of service connection for TBI. Accordingly, the Board lacks jurisdiction over this issue because the benefit sought has been previously granted; the issue on appeal is moot. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. This appeal will therefore be dismissed without prejudice. In so finding, the Board acknowledges that appeals seeking entitlement to increased disability ratings for post traumatic headaches/migraines and TBI and entitlement to an earlier effective date for the award of a separate compensable evaluation for TBI remain on appeal and are being remanded for further development. The Board intimates no opinion as to any final outcome warranted on any of the remaining appeals. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected traumatic brain injury is remanded. In its December 2016 Remand, the Board directed that the Veteran be provided with an additional VA examination to determine the nature and severity of the Veteran’s residuals of TBI. The examiner was instructed to conduct all indicated tests and report the findings in detail, and to discuss the likelihood that the Veteran’s reported symptoms of sensitivity to light and sound, changes in vision, and dizzy spells were symptoms associated with the Veteran’s migraine headaches or were separate manifestations of the Veteran’s TBI. The Veteran was provided with VA examinations pertaining to his headaches and TBI residuals in June 2017. The examination reports note that the Veteran reported dizziness of several months duration, and state a conclusion that the dizziness is a recent complaint not attributable to either the TBI or the headaches. No further explanation was given as to how this conclusion was reached. Mere conclusions by a medical doctor are insufficient to allow the Board to make an informed decision as to what weight to assign the opinion. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (holding that “the mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor’s opinion”). The opinion is thus found to be inadequate and remand is needed to further address this question. Additionally, the Veteran’s attorney has asserted that the provided VA TBI examinations are inadequate because no neuropsychological testing or mental health evaluations have been performed by any of the VA examiners. While the Board notes that the provision of a mental health evaluation is likely not indicated given the Veteran’s lack of history of psychiatric complaints or diagnoses, no explanation has been provided by the examiners as to why neuropsychological testing is not indicated for this Veteran, particularly given that the next higher evaluation available under DC 8045 contemplates objective evidence of limitations on testing pertaining to memory, concentration, or executive functions. On remand, an additional VA TBI examination should be provided which includes neuropsychological testing. Finally, a May 2018 VA primary care note indicates that the Veteran is “being evaluated by Neurology in the community.” This indicates that there remain relevant outstanding private treatment records which VA has not yet attempted to procure. On remand, the Agency of Original Jurisdiction should ask the Veteran to identify and provide any necessary authorization for these records, then request such records from the private facility. 2. Entitlement to a higher disability rating for post traumatic headaches/migraines is remanded. The June 2017 examination report documents the Veteran’s reports concerning the duration of his headaches, but does not include details concerning the frequency with which he experiences them. On remand, this must be addressed in a new VA examination. Additionally, because a decision on the remanded issue of entitlement to a higher disability rating for TBI residuals could significantly impact a decision on the issue of entitlement to a higher disability rating for post traumatic headaches/migraines, the issues are inextricably intertwined. A remand of both claims is therefore required. 3. Entitlement to a higher initial disability rating for service-connected bilateral hearing loss is remanded. The Veteran’s reports of dizziness are noted in private audiological treatment records from March 2013 and January 2015. Evidence concerning whether dizziness represents a symptom associated with the Veteran’s hearing loss disability, headaches, TBI residuals, or none of these, is being sought in connection with the other issues remanded herein. Therefore, the issue of entitlement to a higher initial disability rating for service-connected bilateral hearing loss must also be remanded as inextricably intertwined. 4. Entitlement to an effective date prior to July 2, 2014 for the award of a separate 10 percent disability rating for traumatic brain injury is remanded. Because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to an effective date prior to July 2, 2014 for the award of separate compensable disability ratings for headaches and traumatic brain injury residuals, the issues are inextricably intertwined. This issue must therefore also be remanded. 5. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability is remanded. On his May 2015 application for a TDIU, the Veteran wrote that he is prevented from working by his hearing loss, vision loss, and head trauma. The June 2017 VA examiner wrote that the Veteran’s TBI residuals had an impact on his ability to work, but merely stated that the Veteran was a former salesperson and last worked in 2005. Other evidence of record indicates the Veteran last worked fulltime in 2012. Additionally, the June 2017 VA examiner wrote that when the Veteran worked, he would take unscheduled breaks and medications to deal with his headaches. No description of how the present frequency and severity of the Veteran’s headaches or TBI residuals would affect the Veteran’s functional ability was provided. On remand, an additional VA medical opinion should be provided addressing the combined effect of the Veteran’s service-connected disabilities on his occupational functioning. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2018 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any relevant updated and/or outstanding private treatment records (i.e., those not presently associated with the claims file), to include those of the private neurology practice referenced in a May 2018 VA primary care note. Thereafter, make two requests for the identified and authorized records unless it is clear after the first request that a second request would be futile. 3. After completing the above and associating all responsive records with the claims file, schedule the Veteran for an examination to determine the nature and current severity of the Veteran’s TBI residuals, utilizing the current C&P TBI Examination Guidelines. All indicated tests must be performed and all findings reported in detail, to include neuropsychological evaluation to determine whether there is objective evidence of impairment on testing of memory, attention, concentration, or executive function. The examiner should describe all findings (cognitive, emotional/behavioral, and/or physical) in detail specifically identifying any residual symptoms (including all subjective complaints) that are determined to be related to the in-service head injury. In addition to documenting the Veteran’s reports concerning his symptom experience and addressing the corresponding levels under the TBI Examination Guidelines, the examiner should address whether the Veteran’s described dizziness is: a. at least as likely as not a symptom tied to his migraine headaches; b. at least as likely as not a manifestation of the Veteran’s TBI distinct from the migraine headache residual; or, c. at least as likely as not related to his service-connected hearing loss. The examiner must provide an adequate rationale as to how he/she reached each conclusion. If the examiner determines that the Veteran’s dizziness is more-likely related to some other disability, they should so state and indicate why. 4. After completing the above, schedule the Veteran for appropriate VA medical examination(s) by an examiner or examiners with appropriate expertise to determine the overall impact of the Veteran’s service-connected disabilities on his employability. All findings should be reported in detail. The examiner(s) must be given full access to the Veteran’s complete VA claims file and the Veteran’s electronic records for review. The examiner(s) must specifically note on the VA examination report whether the Veteran’s VA claims file, to include a copy of this remand and any electronic records, were reviewed in connection with this examination. The AOJ should provide the examiner with a list of all the Veteran’s service-connected disabilities. The examiner should elicit from the Veteran a description of the typical problems/functional limitations he faces resulting from his service-connected disabilities, and the frequency and duration of such. The examiner is specifically asked to obtain clarification from the Veteran concerning the frequency, duration, and effects of his headaches. The VA examiner must address the extent of functional and industrial impairment due to the combined effect of the Veteran’s service-connected disabilities. It is the examiner’s responsibility to furnish a full description of the current severity of the Veteran’s service-connected disabilities to the extent that such affect the Veteran’s ordinary activity which includes those relevant to employment. This description may include an opinion on such questions as whether the Veteran’s service-connected conditions preclude standing and/or sitting for extended periods (specifying the time limits), lifting more than a certain weight, interacting appropriately with others (customers, coworkers, employers), or performing other specific tasks, such as those requiring extended concentration or fine motor skills, computer work, or hearing and communication abilities. That the Veteran is currently retired and not working should not preclude the examiner from discussing how the Veteran’s service-connected disabilities would affect the Veteran’s occupational functioning if he were trying to obtain or maintain employment. The examiner(s) must comment on the combined effect of the Veteran’s service-connected disabilities on his ability to engage in any type of full-time employment, including any form of sedentary or light work. The examiner(s) must include in the examination report(s) the rationale for any opinion expressed. However, if an examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 5. Thereafter, review the requested medical report(s) to ensure responsiveness and full compliance with the directives of this remand; implement corrective procedures as needed. 6. After completing the aforementioned, and any additional development deemed necessary in light of the expanded record, readjudicate the Veteran’s claims of entitlement to increased disability ratings for service-connected TBI residuals and post traumatic headaches/migraine, a higher initial disability rating for service-connected hearing loss, an effective date prior to July 2, 2014 for the assignment of separate compensable evaluations for TBI and migraine headaches, and entitlement to a TDIU. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration, if in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Solomon, Counsel