Citation Nr: 18155662 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 09-09 210 DATE: December 4, 2018 REMANDED The claim of entitlement to a disability rating in excess of 40 percent for residuals of a traumatic brain injury, from October 19, 2012, and thereafter is remanded. The claim of entitlement to an initial disability rating in excess of 10 percent for residuals of a traumatic brain injury prior to October 19, 2012, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from June 1970 to December 1971. The Veteran is a Vietnam War Era Veteran with service in the Republic of Vietnam. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In the July 2008 rating decision, the RO granted service connection for the Veteran’s traumatic brain injury, assigning a 10 percent disability rating for the residuals thereof, effective March 6, 2008. A subsequent rating decision, dated January 2013, afforded a 40 percent disability rating for the residuals of the Veteran’s service-connected traumatic brain injury, effective October 19, 2012. Because the RO did not assign the maximum disability rating possible, the appeal for a higher disability evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This case was previously before the Board in August 2012, April 2015, July 2016, and June 2017. In August 2012, the Board remanded this case to obtain a VA examination to assess the nature and severity of the residuals of the Veteran’s service-connected traumatic brain injury. The VA examiner was, specifically, to address whether the Veteran’s sleep apnea and/or sensory polyneuropathy were residuals of his in-service traumatic brain injury. The Veteran received a VA examination in October 2012. The VA examiner stated that the Veteran’s sleep apnea was not related to his headaches and that he did not have an axonal or demyelinating type sensory polyneuropathy. Subsequent to the VA examination, in a January 2013 rating decision, the RO assigned a 40 percent disability rating for the residuals of the Veteran’s service-connected traumatic brain injury, effective October 19, 2012. A supplemental statement of the case was sent to the Veteran at his address of record, along with notification of the January 2013 rating decision. In April 2015, the Board remanded the case, finding that the October 2012 VA examination was inadequate. Specifically, the Board noted that, despite instruction by the August 2012 Board remand, the October 2012 VA examination “failed to provide the requested opinions.” Moreover, the Board found that the opinion offered was merely a conclusory statement unsupported by an adequate rationale. As such, the Board remanded for a new VA examination that complied with the Board remand directives. See Nieves-Rodrigues v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran received a VA examination to assess the nature and severity of the residuals of his traumatic brain injury in June 2015. The VA examiner’s findings in two of the three areas, to be considered for rating purposes, were normal. The examiner noted subjective complaints of mild memory loss, attention, concentration, or executive functions, but no objective evidence of the same was found upon examination. Subsequent to this VA examination, which included a headache-specific VA examination, the RO granted the Veteran service connection for recurrent headaches, with a disability evaluation of 10 percent, in June 2015. A supplemental statement of the case (SSOC) was sent to the Veteran at his address of record, along with notification in February 2016. In July 2016, the Board, again, remanded the case, to obtain a VA examination to determine the nature and severity of the residuals of the Veteran’s traumatic brain injury. The Board noted, specifically, that the VA examiner was to opine whether it was at least as likely as not that the Veteran’s sleep apnea is a manifestation of his traumatic brain injury. The Board, additionally, specifically requested that the examiner opine whether it was at least as likely as not that the Veteran’s sensory neuropathies of the median and ulnar nerve are manifestations of his traumatic brain injury residuals. The Veteran received a VA examination in August 2016. The Veteran was sent a supplemental statement of the case at this address of record in January 2017. The Board, again, considered and remanded this case in June 2017. The Board remanded the claim for a VA examination to determine the nature and severity of the residuals of the Veteran’s traumatic brain injury. Specifically, the Board requested that the VA examiner specify which cognitive impairment symptoms, emotional/behavioral dysfunction symptoms, and physical symptoms could be clearly and exclusively associated with to a service-connected condition to his traumatic brain injury. Moreover, the examiner was to address the findings of the June 2015 and August 2016 VA examinations. The Veteran received a VA examination in August 2017. A supplemental statement of the case was sent to the Veteran at his evidence of record in June 2018. The case has been returned to the Board for appellate consideration. See Stegall, 11 Vet. App. at 271. As discussed below, the Board unfortunately finds that another remand is necessary to properly adjudicate this claim. The appeal is REMANDED to the Agency of Original Jurisdiction. VA will notify the Veteran if further action is required. 1. Entitlement to a disability rating in excess of 40 percent for residuals of a traumatic brain injury, from October 19, 2012, and thereafter is remanded. See Discussion in Issue Number Two 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a traumatic brain injury prior to October 19, 2012, is remanded. The Board has considered the Veteran’s claim for an increased disability rating of the residuals of his service-connected traumatic brain injury. Although the Board sincerely regrets any delay that this may cause, further development is necessary prior to adjudicating these claims. The Board notes that the prior VA decisions are not adequate to adjudicate the claim of entitlement to an increased disability rating for residuals of the Veteran’s service-connected traumatic brain injury. The August 2016 VA examiner opined that the Veteran’s obstructive sleep apnea is less likely as not a manifestation of his residuals, as sleep apnea is not a typical secondary manifestation or residuals of traumatic brain injury. He further opined that the Veteran’s median and ulnar nerve neuropathies were not a result of the Veteran’s traumatic brain injury because sensory neuropathies are illnesses of the peripheral nervous system and are not seen in traumatic brain injury, which is a disease of the central nervous system. The Board finds that, in regard to the Veteran’s obstructive sleep apnea, the VA examination is not adequate. The VA examiner asserted that obstructive sleep apnea is not a “typical” sensory manifestation or residual of traumatic brain injury. By asserting that this is not “typical,” the examiner implied that it is possible. A full rationale must be provided. The August 2016 VA examination also did not consider the proper legal standard for secondary service connection for the Veteran’s obstructive sleep apnea or the Veteran’s sensory neuropathy. See 38 C.F.R. §§ 3.303, 3.310 (2018). Moreover, the examiner afforded merely a conclusory statement as his opinion, not fully supported by evidence. See Nieves-Rodrigues, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 125. As such, the August 2016 VA examination is not in compliance with the Board’s July 2016 remand objectives. See D’Aries v. Peake, 22 Vet App. 97 (2008); Stegall, 11 Vet. App. at 271. As such, the August 2016 VA examination is not substantially compliant with Board directives on the July 2016 remand. See Stegall, 11 Vet. App. at 271. The Veteran received an additional VA examination in August 2017. The VA examiner noted a complaint of mild memory loss. All other facets were found to be normal. Specifically, the VA examiner opined that the Veteran’s subjective symptoms did not interfere with work; instrumental activities; or work, family, or other close relationships. The VA examiner opined that the manifestations cannot be clearly distinguished from the Veteran’s service-connected posttraumatic stress disorder without speculation; the Veteran’s documented headaches are at least as likely as not due to the Veteran’s traumatic brain injury, but the remainder of the manifestations cannot be clearly distinguished; it is impossible, without speculation, to determine which emotional/behavioral signs and symptoms are part of the Veteran’s mental disorder and which are due to the Veteran’s traumatic brain injury; and the Veteran’s current diagnosis, a traumatic brain injury, is a progression of the Veteran’s documented traumatic brain injury. The VA examiner found that the symptomatology, aside from his headaches, could not be distinguished between his service-connected traumatic brain injury and his service-connected posttraumatic stress disorder without resorting to speculation. The Board further finds that the August 2017 VA examination is not adequate for purposes of adjudicating this claim. The examiner did not address each specific symptom asserted by the Veteran in his opinion. Moreover, the opinion does not fully explain why there could be no opinion without mere speculation, which without supporting analysis or reasons to explain why an opinion cannot be provided, is inadequate. See Jones v. Shinseki, 23 Vet. App. 382 (2010). In light of the above, the Veteran should be afforded a new VA examination to determine the severity of the residuals of his traumatic brain injury upon remand. The matters are REMANDED for the following action: 1. Appropriate efforts should be made to obtain and associate with this case file any outstanding VA medical records and all private treatment records, with all necessary assistance from the Veteran. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. Schedule the Veteran for a TBI examination to be conducted by a physiatrist, neurologist, or a neurosurgeon. The examiner should be a different provider than any provider who previously conducted a VA examination for this Veteran. The electronic claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. The examiner should provide a specific opinion as to the severity of the Veteran’s cognitive impairment symptoms, emotional and behavioral symptoms, and physical dysfunction symptomatology. The Board notes that if the requested specialists are not available in the local or near-regional area, the RO is allowed to utilize a clinician whose scope of credentials is as close to the requested specialist as possible. If the specialist is housed locally, the examining clinician may provide the specialist with a clinically appropriate case summary, either verbally or in writing, and then request the specialist provide a written opinion. After reviewing the claims file and examining the Veteran, the examiner should provide the following specific opinions: (a.) Which of the cognitive impairment symptoms, emotional and behavioral symptoms, and physical dysfunction symptomatology can be clearly and exclusively associated to any of his service-connected conditions, to include, but not exclusive of, his service-connected traumatic brain injury. Please consider, and specifically address, each service-connected disability. The examiner should opine upon, and report, which symptoms can be clearly and exclusively associated with the traumatic brain injury. The examiner should opine upon, and report, which symptoms can be clearly and exclusively associated to another service-connected disability. The examiner should opine upon, and report, which reported symptoms are due to neither the Veteran’s traumatic brain injury nor another service-connected disability. The examiner should specifically address the findings of the June 2015, August 2016, and August 2017 VA examinations concerning the residuals of the Veteran’s traumatic brain injury, and indicate whether the Veteran’s symptoms of cognitive impairment, including memory, attention, concentration, and executive functions, overlap with the Veteran’s service-connected posttraumatic stress disorder, or whether such symptoms can be clearly separated. (b.) Is it at least as likely as not (a 50 percent chance or better) that the Veteran’s sleep apnea is caused or aggravated by his traumatic brain injury residuals? If so, the examiner must specifically indicate the effect that this has on his functioning. (c.) Is it at least as likely as not (a 50 percent chance or better probability) that the Veteran’s sensory neuropathies of the median and ulnar nerve are caused or aggravated by his traumatic brain injury residuals? If so, the examiner must specifically indicate the effect that this has on his motor activity and sensory system as it pertains to the facets of cognitive impairment and other residuals of the traumatic brain injury not otherwise classified. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner’s attention is invited to the Veteran’s statements concerning the onset of his claimed disability. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not take into account the Veteran’s reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones, 23 Vet. App. at 382. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. E. Trotter, Associate Counsel