Citation Nr: 18156247 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-08 457 DATE: December 7, 2018 REMANDED Entitlement to an initial compensable rating for residuals of traumatic brain injury (TBI residuals) is remanded. Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 2003 to November 2005. The issues are on appeal from April 2009 and September 2010 rating decisions. The April 2009 rating decision continued the Veteran’s 70 percent disability rating for PTSD. However, as less than the maximum available benefit for a schedular rating was awarded and because an increase was not awarded for the entirety of the claim period, the claim remains before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). The Board of Veterans’ Appeals (Board) notes that the regional office (RO) notified the Veteran in October 2014 that the Veteran’s claims file had been misplaced. In December 2014, the Veteran’s representative submitted to the RO all documents that the Veteran and the representative had to rebuild the claims file. Further, the December 17, 2008 claim for an increased rating in excess of PTSD discussed by the April 2009 rating decision is missing from the file. However, as it does not prejudice the Veteran, the Board has proceeded with the appeal. Finally, the issue of memory loss due to TBI was raised in an August 2014 statement and is referred to the RO for adjudication. 1. Entitlement to an initial compensable rating for TBI residuals; an initial rating in excess of 30 percent for migraine headaches; and a rating in excess of 70 percent for PTSD, are remanded. In his August 2018 videoconference hearing, the Veteran testified that his TBI residuals, migraine headaches, and PTSD symptoms have worsened. The Veteran was last afforded a General Medical VA examination in February 2012 and a VA examination in February 2013 for his PTSD and TBI. The Board notes that the February 2012 General Medical VA examination is not currently of record, although included on the evidence list of the January 2015 statement of the case. On remand, the February 2012 General Medical VA examination should be located and the Veteran must be afforded new VA examinations to assess the current symptoms of the three service-connected disabilities: TBI residuals, migraine headaches, and PTSD. Further, the examiner should note the Veteran’s statements from the August 2018 videoconference hearing that his migraines cause multiple prostrating attacks per month, extreme dizziness, and fatigue. The Veteran testified that the migraines lasted more than three to four hours or more; at a frequency of up to five headaches per week. Further, the Veteran’s TBI residuals and PTSD symptoms had reportedly led to his homelessness and unemployment. He testified that he had not worked in two years due to his suicidal ideations, forgetfulness, inadequacy to adapt, struggle to control his emotions around triggers, flashbacks, anxiety, and frequent nightmares which caused him to stay up. Additionally, in an August 2011 statement and his August 2018 videoconference hearing, the Veteran discussed a poor experience with a former VA examiner from the Gainesville VA Medical Center (VAMC). He testified that he did not want to be examined by the same VA examiner at Gainesville VAMC who had conducted a prior VA examination. The Veteran should not be scheduled with any of his prior VA examiners from the Gainesville VAMC. The Veteran’s file also contains a letter from the Social Security Administration (SSA) granting full benefits as of September 2007. On remand, as the Veteran’s file contains no SSA documents, these should also be obtained. Finally, the RO should obtain updated VA treatment records as the most current date is March 20, 2017. 2. Entitlement to TDIU due to service-connected disabilities is remanded. As the TDIU claim is inextricably intertwined with the remanded increased rating claims, it will also be remanded pending adjudication of those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2017 to the present. 2. Obtain the Veteran’s federal records from the Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. After all VA and SSA treatment documents have been obtained, schedule the Veteran for an examination by an appropriate clinician, who has not previously examined the Veteran at the Gainesville VAMC examiner, to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. The examiner should note the Veteran’s statements in his August 2018 regarding his PTSD symptoms including his hospitalization within the past year due to suicidal ideations, flashbacks, anxiety, having a hard time controlling his emotions around triggers, experiencing nightmares that caused him to stay up, and inability to be around fire since the IED explosion he survived in service. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his psychiatric disorder alone. 4. Schedule the Veteran for examinations by an appropriate clinician(s), who has not previously examined the Veteran at the Gainesville VAMC examiner, to determine the current severity of his service-connected TBI residuals and migraine headaches. The examiner(s) should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should note the Veteran’s statements in his August 2018 hearing regarding his TBI residuals symptoms including memory loss such as forgetting entire events. The examiner should note the Veteran’s statements in his August 2018 hearing regarding his migraine headaches. Notably, the Veteran testified that his migraines resulted in dizziness, nausea, loss of appetite, and aura; they usually lasted from three to four hours, potentially longer, and occurred as many as five major headaches per week. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to TBI residuals alone and discuss the effect of the Veteran’s TBI residuals on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel