Citation Nr: 19190814 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 19-09 759 DATE: December 3, 2019 ORDER Entitlement to service connection for peripheral vestibular disorder, as a residual of a TBI, is granted. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to the Veteran’s service connected PTSD, is remanded. Entitlement to a rating greater than 70 percent for PTSD is remanded. Entitlement to a rating greater than 10 percent for migraine headaches is remanded. FINDING OF FACT The Veteran’s vestibular disorder is related to his TBI. CONCLUSION OF LAW The criteria for service connection for peripheral vestibular disorder, a residual of a TBI, have been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1996 to April 1996, February 2006 to May 2006, March 2009 to April 2010, April 2010 to September 2013. The Veteran was originally granted service connection for PTSD in a June 2015 rating decision. In July 2016, the Veteran submitted an application for benefits seeking service connection for a separate rating for traumatic brain injury and sleep apnea. In a November 2016 rating decision, entitlement to sleep apnea was denied and entitlement to service connection for TBI was deferred. Subsequently, in a January 2017 rating decision, service connection for tension headaches with migraines, as a residual of a TBI, was granted with an evaluation of 10 percent effective December 5, 2014. Additionally, the January 2017 rating decision continued the Veteran’s service connected PTSD rating at 50 percent. The January 2017 rating decision held that a separate rating for the Veteran’s TBI was not warranted as the overlap of the manifestations of the comorbid mental and neurological conditions of the Veteran’s TBI and TPSD could not be delineated. Therefore, a single evaluation was granted. Subsequently, in a March 2019 rating decision, the Veteran’s service connected PTSD was increased from 50 to 70 percent. However, the Veteran still contends that his TBI should be rated separately. The criteria for evaluating traumatic brain injury (TBI) are set forth in Diagnostic Code 8045. That Diagnostic Code provides rating criteria for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017). Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Subjective symptoms may be the only residual of a traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere’s disease, even if that diagnosis is based on subjective symptoms, rather than under the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table. Emotional/behavioral dysfunction are evaluated under section 4.130 (Schedule of ratings, mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” Physical (including neurological) dysfunction are evaluated based on the following list, under an appropriate diagnostic code: Motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a traumatic brain injury. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation, and combine under 38 C.F.R. § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. There may be an overlap of manifestations of conditions evaluated under the table titled “Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified” with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1). In December 2016, the Veteran underwent a VA TBI examination. The examiner noted that the Veteran has a TBI and the following residuals: hearing loss and/or tinnitus; gait, coordination, and balance; headaches, including migraines; and, mental disorder. The Board notes that the Veteran is already in receipt of service connection for headaches (as discussed further below), bilateral sensorineural hearing loss, and tinnitus. Regarding the Veteran’s mental disorder residuals, the examiner stated that the Veteran’s PTSD symptoms and TBI symptoms are co-morbid and cannot be differentiated. Additionally, the examiner stated that the Veteran’s PTSD and TBI symptoms collectively impact the claimant’s occupational and social impairment, and it is not possible to differentiate what portion of the occupational and social impairment is caused by the Veteran’s TBI or PTSD. Therefore, a separate evaluation for mental health residuals of a TBI is not warranted. Additionally, in January 2017, the Veteran underwent a VA ear conditions examination in connection with the gait, coordination, and balance issues noted on the Veteran’s December 2016 TBI examination. The examiner noted that the Veteran is diagnosed with peripheral vestibular disorder. The Veteran stated that his dizziness and vertigo began after exposure to multiple IED detonations. The examiner concluded that the Veteran’s peripheral vestibular disorder is more likely than not a residual of the Veteran’s TBI. Therefore, the Board finds that service connection for peripheral vestibular disorder, as a residual of a TBI, is warranted as a separate rating. REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2018). 1. Entitlement to service connection for sleep apnea, to include as secondary to the Veteran's service connected PTSD, is remanded. The Veteran contends that his sleep apnea is related to his military service. Additionally, the Veteran contends that his sleep apnea is related to his service connected PTSD. Specifically, an October 2015 medical treatment note states that the Veteran is unable to wear his CPAP machine due to his PTSD. Additionally, the Veteran submitted a journal article and medical study discussing a link between psychiatric disorders and sleep apnea. However, the Board cannot make a fully-informed decision on the issue of entitlement to service connection for sleep apnea because no VA examiner has opined whether or not this condition is related to the Veteran’s military service, or alternatively, caused or aggravated by the Veteran’s service connected PTSD. Therefore, a remand is warranted for the Veteran to be afforded the opportunity to undergo a VA sleep apnea examination. 2. Entitlement to a rating greater than 70 percent for PTSD is remanded. The Veteran contends that his service connected PTSD warrants a rating greater than 70 percent. The Veteran’s most recent VA PTSD examination was in December 2016. The Board finds that while this matter is being remanded, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. 3. Entitlement to a rating greater than 10 percent for migraine headaches is remanded. In a June 2019 correspondence, the Veteran’s representative contends that the Veteran’s December 2016 VA migraine examination is inadequate as it contains conflicting statements as to the frequency of the Veteran’s migraines/headaches. Specifically, during the examination, the Veteran stated that he was experiencing 3-4 headaches per week, however, the examiner stated that the Veteran was only experiencing characteristic prostrating attacks of migraine headache pain once in two months. In order to determine the accurate frequency of the Veteran’s migraines, the Board finds that while this matter is being remanded, the Veteran should be afforded the opportunity to undergo another VA migraine examination. Since the claims file is being remanded, it should be updated to include any outstanding VA treatment records. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate those documents with the Veteran’s claims file. 2. Schedule the Veteran for an examination to provide an opinion as to the nature and etiology of the Veteran’s sleep apnea that has been present during the period on appeal. After reviewing the record, to include the Veteran’s lay testimony, the examiner is asked to address the following: a) Is it at least as likely as not (a 50 percent probability or greater), that the Veteran’s sleep apnea, was caused by service, or is otherwise related to the Veteran’s military service? b) Is it at least as likely as not (a 50 percent or higher probability) that the Veteran’s sleep apnea was caused by his service connected PTSD? c) Is it at least as likely as not (a 50 percent or higher probability) that the Veteran’s sleep apnea was aggravated by his service connected PTSD? All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service connected PTSD. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of his service connected migraine condition. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service connected disability. All opinions provided must be thoroughly explained and an adequate rationale for any conclusions reached must be provided. If any requested opinion cannot be provided without resort to speculation, the medical professional should state and explain why an opinion cannot be provided without resort to speculation. 5. Following completion of the above, and a review of any additional evidence received, the RO should also undertake any other development it deems to be necessary, to include, if warranted, an addendum medical opinion which considers any newly received evidence. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Mountford, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.