Citation Nr: 19106978 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 14-08 578 DATE: January 29, 2019 REMANDED 1. Entitlement to service connection for traumatic brain injury (TBI) is remanded. 2. Entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. 3. Entitlement to special monthly compensation (SMC) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1953 to May 1955. In September 2017, the Board denied the claim of entitlement to traumatic brain injury (TBI) on appeal. The Veteran appealed the September 2017 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2018, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) and remanded the TBI claim back to the Board, which was granted by the Court. The September 2017 Board decision also remanded the issues of entitlement to a disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD) and entitlement to special monthly compensation (SMC), however, these issues were not within the Court’s jurisdiction. These issues are currently still before the Board. The parties agreed that the Board erred by failing to address the combat presumption in 38 U.S.C. § 1154(b) and relevant lay evidence of record. The parties also agreed that the Board erred by relying on an inadequate medical examination to deny the claim for service connection for TBI. Specifically, the record reflects that the Veteran served in Korea during the Korean war. The Veteran asserted that he fell and hit his head, losing consciousness for a brief period, during combat, however, the Board did not discuss whether the Veteran’s reports that he suffered from a TBI in accordance to 38 U.S.C. § 1154(b). Furthermore, the parties noted that while the VA had afforded the Veteran medical examinations, he had not been afforded a VA TBI examination. The parties agreed that a remand was warranted to ensure that the duty to assist is fulfilled by providing the Veteran an adequate VA TBI examination. 1. Entitlement to service connection for TBI is remanded. A remand is necessary to afford the Veteran a TBI VA examination and further development as necessary to adjudicate the claim pursuant to the August 2018 JMPR. 2. Entitlement to a disability rating in excess of 30 percent for PTSD is remanded. A determination with respect to the service connection claim for TBI may have an impact upon consideration of the issue of entitlement an increased rating for PTSD on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s increased rating claim for PTSD is deferred pending adjudication of the Veteran’s service connection claim for TBI.   3. Entitlement to SMC is remanded. SMC is payable under 38 U.S.C. § 1114(l) if, as a result of service-connected disability, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l) (2012); 38 C.F.R. § 3.350(b) (2017). A determination with respect to the service connection claim for TBI and increased rating claim for PTSD may have an impact upon consideration of entitlement to SMC on appeal; the Board finds that these issues are inextricably intertwined. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. As such, Board consideration of the merits of the Veteran’s SMC claim is deferred pending adjudication of the Veteran’s TBI and PTSD claims. The matters are REMANDED for the following action: 1. Schedule the Veteran for a TBI examination to determine the nature, extent and etiology, to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon). Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The rationale for all opinions expressed must be provided. The VA examiner's attention is drawn to the following: • The Veteran served on active duty from May 1953 to May 1955. • The Veteran asserts that he experienced a TBI while in service, specifically, while in combat during the Korean War, he was escaping from a “pretty bad situation,” fell, and hit his head. He stated that he “might have been [out] for a few minutes” but then was running again and that the fall caused a scar on his ear. The Veteran stated that he remembered trying to run and crawl to safety, and then when he got up he stumbled, fell, and hit his head on something. See 1) VBMS entry with document type, “BVA Decision,” receipt date 09/19/2017; and 2) VBMS entry with document type, “VA 9 Appeal to Board of Appeals,” receipt date 03/07/2014. • The Veteran denied any significant neurological symptoms and his head was normocephalic and atraumatic in August 2010, December 2010, and April 2011 private medical records. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 05/31/2011, on pages 2, 4, 14, 19. • An April 2010 private medical record reflects that the Veteran experienced a cerebrovascular accident at that time. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 06/13/2011, on pages 12, 26, 27, 47. • In March 2010 and April 2010 private medical records, a series of brain studies were performed, which essentially revealed brain changes consistent with hypertensive encephalopathy. See VBMS entry with document type, “Medical Treatment Record - Non-Government Facility,” receipt date 06/20/2011, on pages 1-2, 9, 44. • In a January 2011 VA examination for posttraumatic stress disorder (PTSD), the Veteran denied that he sustained any combat wounds but reported leg swelling. See VBMS entry with document type, “Returned Mail,” receipt date 11/12/2012, on page 8. • An October 2011 VA medical record indicates that the Veteran had minor problems with pressure like headaches in the right temple area and described wavy vision when he put on his glasses first thing in the morning. The VA physician stated that he believed most of this may be related to the Veteran’s blood sugar being high. See VBMS entry with document type, “Medical Treatment Record - Government Facility,” receipt date 02/13/2012, on pages 12-19. • In a March 2013 VA examination report for PTSD, the examiner indicated that the Veteran did not have a diagnosis of TBI. Further, the examiner noted that it is estimated that 90 percent of the Veteran’s current impairment is due to the cognitive impairment of dementia and that he was living independently and still working part time at age 76. See VBMS entry with document type, “VA Examination,” receipt date 03/07/2013, on page 12. • Of record is the October 2017 VA examination report for PTSD. The examiner indicated that the Veteran did not have a diagnosed TBI shown in the records reviewed. See VBMS entry with document type, “Legacy Content Manager Documents,” receipt date 10/10/2017. While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions: a) Does the Veteran have any currently diagnosed TBI residuals? b) If residuals of a TBI are diagnosed, it at least as likely as not (50 percent or greater likelihood) that they were incurred in service, caused by, or otherwise related to service? Please explain your answers by citing to supporting clinical data and/or medical literature, as deemed appropriate. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. After the above is complete, readjudicate the Veteran’s claims for 1) service connection for TBI, 2) a higher evaluation for PTSD, and 3) entitlement to SMC. If any claim remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel