Citation Nr: 20006883 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 05-10 112 DATE: January 28, 2020 ORDER Entitlement to a schedular rating in excess of 50 percent for headaches due to head trauma is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected headaches, from May 22, 2002 through August 25, 2003, is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a higher initial rating for traumatic brain injury (TBI), rated noncompensable prior to March 2, 2010 and 10 percent disabling since that date, is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether, during the period from May 22, 2002 through August 25, 2003, the Veteran’s service-connected headaches due to head trauma precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him. 2. The Veteran’s headaches due to head trauma are manifested by frequent completely prostrating and prolonged attacks, productive of severe economic inadaptability. 3. The award of a TDIU for the service-connected headaches during the entire claim period renders the issue of entitlement to an increased rating for headaches due to trauma on an extraschedular basis moot. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 50 percent for headaches due to head trauma are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code (DC) 8100. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU due to service-connected headaches, from May 22, 2002 through August 25, 2003, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to January 1967. These matters initially came before the Board of Veterans’ Appeals (Board) from a June 2004 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to a rating in excess of 10 percent for headaches and denied entitlement to a TDIU. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a December 2006 hearing and a transcript of the hearing has been associated with his claims file. In April 2007, the Board denied entitlement to a rating in excess of 10 percent for headaches and denied entitlement to a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2008, the Court set aside the Board’s April 2007 decision and remanded the case for readjudication in compliance with directives specified in a June 2008 Joint Motion filed by counsel for the Veteran and VA. In January 2009, the Board remanded the issues of entitlement to an increased rating for headaches and entitlement to a TDIU for further development. In an October 2010 decision, a Decision Review Officer (DRO) awarded an increased (50 percent) rating for headaches due to head trauma, from May 22, 2002, and a TDIU, from September 29, 2009. In September 2012, the Board denied entitlement to a rating in excess of 50 percent for headaches due to head trauma and remanded the issue of entitlement to an effective date earlier than September 29, 2009 for the award of a TDIU for further development. The Veteran appealed the Board’s decision to the Court. In April 2013, the AOJ assigned an effective date of August 26, 2003 for the award of a TDIU. In July 2013, the Court set aside the Board’s September 2012 decision, in part, and remanded the case for readjudication in compliance with directives specified in a June 2013 Joint Motion filed by counsel for the Veteran and VA. The parties to the Joint Motion specified that they only sought remand as to that portion of the Board’s decision in which the Board denied a rating in excess of 50 percent for headaches due to head trauma. In December 2013, the Board remanded the issues of entitlement to an increased rating for headaches due to head trauma and entitlement to a TDIU prior to August 26, 2003 for further development. In October 2015, a DRO awarded service connection for TBI and assigned a separate initial 10 percent disability rating, from March 2, 2010. In February 2017, the Board expanded the appeal to include the issue of entitlement to a higher initial rating for TBI, as part and parcel of the Veteran’s claim for an increased rating for headaches due to head trauma. The Board remanded all issues currently on appeal for further development. As for characterization of the issues on appeal, the Veteran submitted a claim for an increased rating for headaches which was received by VA on May 22, 2002. In a December 2002 rating decision, the AOJ denied entitlement to a rating in excess of 10 percent for headaches. The Veteran did not appeal this decision within one year of its issuance. Regardless, in January and August 2003, the report of a January 2003 VA neurological disorders examination and a July 2003 letter from a VA physician were associated with the Veteran’s claims file. This evidence includes information pertaining to the severity of his headaches and their impact on his daily life and his ability to work. In the June 2004 rating decision, the AOJ readjudicated the rating assigned for the Veteran’s service-connected headaches and denied entitlement to a rating in excess of 10 percent. The current appeal of the rating assigned for the service-connected headaches originates from the June 2004 decision. In light of the evidence that was associated with the Veteran’s claims file, as described above, the Board finds that new and material evidence was received within a year of the December 2002 rating decision. Hence, this decision did not become final as to the rating assigned for the service-connected headache disability. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after AOJ decision rendered AOJ decision non-final); 38 C.F.R. § 3.156 (a), (b). Therefore, the Veteran’s May 22, 2002 increased rating claim remains pending. With respect to the TDIU issue on appeal, this matter was raised during the Veteran’s claim for an increased rating for headaches. Therefore, it is not a separate claim, but is rather part and parcel of his May 2002 claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Harper v. Shinseki, 30 Vet. App. 356 (2018). Accordingly, the Board must determine whether a TDIU is warranted at any time during the claim period prior to August 26, 2003. Moreover, in its February 2017 remand, the Board explained that the issue of entitlement to a higher initial rating for TBI is part and parcel of the Veteran’s claim for an increased rating for headaches due to head trauma. As the Veteran’s increased rating claim was received in May 2002, the TBI issue on appeal has been re-characterized as entitlement to a higher initial rating for TBI, rated noncompensable prior to March 2, 2010 and 10 percent disabling since that date. Lastly, the Board points out that the Veteran’s representative requested a new Board hearing in an April 2016 statement. This hearing request was withdrawn in November 2019 (see a November 2019 response to an October 2019 hearing clarification letter sent by the Board). I. Background A July 1980 VA hospital summary (VA Form 10-1000), a November 1980 “Veteran’s Application for Compensation or Pension” form (VA Form 21-526), a January 1981 “Income-Net Worth and Employment Statement” (VA Form 21-527), a January 1981 VA Form 21-526, a February 1983 letter from A.C., VA treatment records dated in July 1984, October 1986, and March 1987, private treatment records dated from March 1981 to December 1988, a February 1995 VA discharge summary (VA Form 10-1000), a May 1998 VA Form 21-527, the report of a February 2000 VA psychiatric examination, statements from the Veteran dated in July 2001 and May 2002, and his Social Security Administration (SSA) disability records reflect that he completed no more than 2 years of college, received some business training, and had employment experience as a cabinet maker and a construction laborer. His work performance during the period from 1967 to 1979 was significantly impaired by severe headaches, in that his headaches caused him to leave jobs unfinished, miss work, and experience impaired concentration. He temporarily stopped working after he suffered a stroke in July 1980. Although he significantly recovered from his stroke, he also filed a worker’s compensation claim due to a work-related back and/or leg injury and experienced hip pain and seizures that interfered with his ability to work in construction. He was awarded SSA disability benefits on the basis of organic mood disorder and left hip disability, seizures, diabetes, and hemianopia, but his benefits were subsequently stopped in April 1998 because he returned to work. He reported in his July 2001 statement that he had just started a job that he felt he was able to perform both mentally and physically, but he reported in his May 2002 statement that his SSA disability benefits were reinstated on December 1, 2001. The Veteran reported during VA neurological disorders examinations dated in October 2002, and January 2003 and in a February 2003 VA psychiatric examination that he was experiencing an increase in the frequency and severity of his headaches. The headaches were located on the top of his head behind his eyes bilaterally, they radiated to the temples and the occiput bilaterally, they were associated with nausea, photophobia, and neck stiffness, they occurred at least 5 to 6 days per week, and they lasted for 5 to 7 hours at a time. The pain was excruciating and 10/10 in severity, was aggravated by stress and nervousness, and was alleviated with medications (e.g., oxycodone) and sleep. In order to break the headache cycle, the Veteran had to sleep in a dark and quiet location, after which time he felt “drained.” He was unable to drive or perform any manual labor while experiencing a headache and was unable to perform any activities during flare ups of headaches due to severe pain, weakness, and fatigue. He was able to work in construction until 1995/1996, at which time he stopped working due to seizures. A diagnosis of migraine headaches was provided. A July 2003 letter from a VA physician and a September 2003 VA mental hygiene note reflect that the Veteran worked various jobs in construction, carpentry, and labor following service, but that his jobs never lasted long due to conflicts with others. He subsequently had his own logging and firewood business and was able to perform this work for a period of time because he was able to work alone and had “virtually no one to deal with,” but this work ended in July 2003 due to his worsening headaches. The VA physician reported that the Veteran experienced chronic headaches, which had worsened in severity over the previous year to the point that he experienced severe symptoms despite treatment with daily use of oxycodone. Although he experienced multiple other medical problems, his headaches were of such a degree that he was frequently unable to perform normal daily activities. Overall, the physician concluded that the Veteran was clearly “not able to pursue gainful employment.” The report of a VA neurological disorders examination dated in May 2004 reflects that the Veteran experienced gradually worsening headaches which originated on the side part of the back of the head and radiated to the temples and forehead. The headaches were felt all over his head and he felt as if his forehead was being “crushed.” He experienced approximately 4 headaches per week, during which he had to put a pillow over his head and rest. He was unable to perform any activities while experiencing a headache, they were associated with blurred vision, and they were aggravated when he was nervous and got “nasty.” In an August 2004 letter, a VA physician reported that the Veteran had recently noted an increase in the severity of his headaches, despite the use of oxycodone every 8 hours and Percocet. He also experienced diabetes mellitus, hypertension, chronic renal failure, anemia, and aseptic necrosis of the femur. He was increasingly limited in his activities due to increased headaches, and he was no longer able to drive because of his use of narcotic medications. Overall, he was housebound as a result of his disabilities and had to rely on others for transportation out of his home. The Veteran reported during the December 2006 Board hearing that he took oxycontin and Percocet multiple times per day to treat his headaches. He most recently worked in 2002 when he had his own firewood business, but he had to sell his business and his equipment due to his headaches and he lost thousands of dollars. He had not been gainfully employed since that time. A September 2009 VA neurological disorders examination report indicates that the Veteran experienced headaches approximately 4 times per week which were throbbing in nature, started periorbitally and radiated to the occiput bilaterally, were 8/10 in severity, lasted for 2 to 6 hours at a time, and were associated with nausea, occasional vomiting, photophobia, and phonophobia. Most of his headache attacks were prostrating. He used medications (e.g., oxycodone and Percocet) to treat his headaches. The Veteran was diagnosed as having post-traumatic migraine headaches. This disability limited his ability to drive, prevented him from shopping, and had a mild effect on some other activities of daily living. VA treatment records dated from November 2010 to February 2011, the Veteran’s September 2011 substantive appeal (VA Form 9), a September 2012 letter from a VA physician, and the report of a February 2014 VA headache examination indicate that the Veteran experienced chronic disabling migraine headaches that were associated with severe nausea, vomiting, and photophobia. The headaches were characterized as constant/throbbing/pulsating head pain, started at the back of his head and radiated over the top of his forehead and eyes bilaterally, were 8/10 to 10/10 in severity, caused him to feel as if his head was “in a vice,” occurred from 4 to 7 times per week, and lasted for 4 to 7 hours at a time. During a headache, the Veteran had to go to his room, close the shades, take medication, and attempt to sleep. There were scars associated with the Veteran’s headache disability, but none of the scars were painful or unstable and the total area of all related scars was not greater than 39 square centimeters (6 square inches). Overall, he experienced very frequent prostrating and prolonged attacks of headache pain and the headaches rendered him unable to search for or maintain employment. His representative noted that a review of the Veteran’s SSA earnings and wage statement indicated that his last year of gainful employment was in 2001. In January 2019, VA’s Director of Compensation (Director) reviewed the Veteran’s claims file and explained that a review of all available medical records revealed that there were no hospitalizations or emergency room visits for the Veteran’s headaches, but that he was under intensive medication therapy to treat his headaches. Although he was awarded SSA disability benefits, this was on the basis of non service-connected organic mood disorder, osteoarthritis of the left hip with necrosis, and seizures. Overall, the Director concluded that the Veteran’s headaches were not severe enough to prevent employment for any period prior to August 26, 2003. II. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a rating in excess of 50 percent for headaches due to trauma The Veteran’s headaches due to head trauma are rated under 38 C.F.R. §§ 4.124a, 4.130, DCs 9304-8100. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DCs 9304-8100 reflects that the Veteran’s headache disability is partially described as major or mild neurocognitive disorder due to TBI and that the rating assigned is based on migraine headaches under DC 8100. Under DC 8100, a maximum schedular 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. In this case, the Veteran is already in receipt of the maximum schedular rating for headaches under DC 8100 for the entire claim period. The Board acknowledges that the Veteran has reported some symptoms associated with his headaches (e.g., impaired vision, neck pain) that may not be contemplated by the schedular rating criteria under DC 8100. As explained below, however, the Board is awarding a TDIU during the entire claim period from the May 22, 2002 date of receipt of the Veteran’s increased rating claim through August 25, 2003. The Veteran is already in receipt of a TDIU during the entire period since August 26, 2003. Although the Court had previously indicated that the award of a TDIU did not render an extraschedular issue moot, see Colayong v. West, 12 Vet. App. 524, 527 (1999) (VA “conceded... that the veteran’s TDIU rating claim was a matter separate from the adjudication of his schedular or extraschedular rating claims and also that even if a TDIU rating is awarded, the veteran is still entitled to fair adjudication of those other claims”), it reached the opposite result in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In Johnson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the TDIU provision only accounts for instances in which a veteran’s combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321 (b)(1) performs a “gap-filling” function and accounts for situations in which a veteran’s overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran’s disabilities are nonetheless inadequately represented. Id. The Federal Circuit thus indicated that an award of a TDIU would result in a veteran being deemed to have total unemployability, with no “gap” to fill by 38 C.F.R. § 3.321 (b). In light of the more recent Federal Circuit case, the Board finds that the award of a TDIU during the entire claim period for the service-connected headaches has rendered the issue of entitlement to an increased rating for headaches due to head trauma on an extraschedular basis moot. Therefore, a rating in excess of 50 percent for headaches due to head trauma is not warranted at any time during the claim period. As a final point, in conjunction with the claim for an increased rating for headaches due to head trauma, other than the issue of entitlement to a TDIU prior to August 26, 2003 which is discussed below, neither the Veteran nor his representative has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). III. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). However, even when the percentage requirements under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). The Board points out that although it is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). Thus, as the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) during the period prior to August 26, 2003 has already been remanded and referred to the Director and the Director has issued a decision, the issue is now before the Board and can be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[T]here is no restriction on the Board’s ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal”). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disability, prior to August 26, 2003 The Veteran contends that he was unable to work due to his service-connected headaches during the entire claim period prior to August 26, 2003. Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the Veteran’s service-connected headaches precluded all substantially gainful employment for which his education and occupational experience would have otherwise qualified him during this period. The above evidence reflects that the Veteran completed no more than 2 years of college and that his employment experience almost exclusively consisted of physical employment as a cabinet maker/construction laborer. Although he operated his own logging/firewood business for a period of time, such self-employment was sheltered in that he was only able to perform this job because he was able to work alone in isolation. Regardless, he has reported that his business ended in 2002 due to worsening headaches and he has not been gainfully employed since that time. The Board acknowledges that he did not initially stop working in construction due to his headaches and he has experienced various other non service-connected disabilities that have significantly interfered with his ability to work. Regardless, while he was actively working, he began to experience significant impairments at work due to his service-connected headaches and his headaches have continued to increase in severity over the years. Overall, during the claim period prior to August 26, 2003, the Veteran was not gainfully employed and he experienced symptoms associated with his service-connected headaches that resulted in functional impairments that significantly interfered with his ability to secure and follow any substantially gainful employment. For instance, his medical records and lay statements reflect symptoms and impairments associated with his headaches (including, but not limited to, severe headaches that occurred most days of the week, lasted for hours at a time, were associated with weakness, fatigue, nausea, and photophobia, required the Veteran to rest in a dark room for hours at a time, prevented him from driving and performing manual labor, and were treated with narcotic medications) that would have prevented him from performing any type of substantially gainful employment consistent with his education and occupational experience prior to August 26, 2003. As explained above, the Veteran’s claim for an increased rating for headaches was received on May 22, 2002. The Veteran’s representative has contended on various occasions, including in a July 2019 statement, that a TDIU is warranted since May 22, 2002. In light of the above discussion of the severity of the symptoms of the Veteran’s service-connected headaches and his educational and occupational experience, the Board agrees and finds that the evidence is at least evenly balanced as to whether the Veteran was unable to secure and follow substantially gainful employment due solely to his service-connected headaches during the period from May 22, 2002 (the earliest date that it is factually ascertainable that the Veteran was unable to secure and follow substantially gainful employment due solely to his service-connected headaches) through August 25, 2003. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from May 22, 2002 through August 25, 2003, on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b), is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a higher initial rating for TBI, rated noncompensable prior to March 2, 2010 and 10 percent disabling since that date, is remanded. The Veteran’s TBI is currently rated under 38 C.F.R. § 4.124a, DC 8045. The criteria for rating TBI under DC 8045 were amended during the claim period. See 73 Fed. Reg. 54693 (Sept. 23, 2008). The effective date for these revisions is October 23, 2008. See 38 C.F.R. § 4.124, Note (5). For claims received by VA prior to that effective date, a veteran is to be rated under the old criteria for any periods prior to October 23, 2008 but under the new criteria or the old criteria, whichever are more favorable, for any period beginning on October 23, 2008. Under the old version of DC 8045, which contemplated brain disease due to trauma, purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, were to be rated at 10 percent disabling and no more under 38 C.F.R. § 4.130, DC 9304, as major or mild neurocognitive disorder due to TBI. This 10 percent rating was not to be combined with any other rating for a disability due to brain trauma. Ratings in excess of 10 percent for brain disease due to trauma under DC 9304 were not assignable in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. 38 C.F.R. § 4.124a, DC 8045 (in effect prior to October 23, 2008). Under the revised version of DC 8045, there are three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive (which is common in varying degrees after TBI), emotional/behavioral, and physical. Subjective symptoms may be the only residual of TBI or may be associated with cognitive impairment or other areas of dysfunction. Subjective symptoms that are residuals of TBI, whether or not they are part of cognitive impairment, are evaluated under the subjective symptoms facet in the table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified.” However, any residual with a distinct diagnosis that may be evaluated under another DC (e.g., migraine headaches), even if that diagnosis is based on subjective symptoms, should be separately evaluated. 38 C.F.R. § 4.124a, DC 8045 (in effect since October 23, 2008). In the February 2017 remand, the Board referenced VA treatment records which revealed that the Veteran experienced significant impairment in visuospatial processing and executive functioning and which showed “known residual cognitive-linguistic deficits from CVA/TBI.” As these symptoms were not present during a February 2014 VA TBI examination, the Board instructed the AOJ to afford the Veteran a new VA examination to ascertain the severity of his service-connected TBI. Pursuant to the Board’s remand, a VA TBI examination was conducted in October 2017. The physician who conducted the examination reported, in pertinent part, that the Veteran did not experience any impairment of memory, attention, concentration, executive functions, motor activity, or visual spatial orientation impairments associated with his TBI. The examiner noted that although the Veteran did in fact experience executive function deficits, ataxia, loss of balance, and significant visuospatial deficits, these symptoms were all associated with non service-connected stroke and aneurysm and were not due to his TBI. These opinions are of little probative value, however, because the examiner did not provide any specific explanation or rationale for these opinions. Moreover, the Board points out that the Veteran has contended that his aneurysm and stroke were caused by his head trauma in service (see a March 2014 “Report of General Information” form (VA Form 27-0820)). The Board cannot make a fully-informed decision on the issue of entitlement to a higher initial rating for TBI because no VA examiner has adequately opined whether the Veteran experiences any facet of cognitive impairment that is associated with his service-connected TBI. Moreover, a retrospective opinion would be helpful in determining whether the Veteran has ever experienced any multi-infarct dementia associated with his brain trauma. See Chotta v. Peake, 22 Vet. App. 80, 86 (2008) (discussing situations when it may be necessary to obtain a “retrospective” medical opinion to determine the date of onset or severity of a condition in years past). Therefore, an appropriate medical opinion should be obtained upon remand. Also, the evidence indicates that there may be outstanding relevant VA treatment records. A January 2019 VA social work note from the Bay Pines VA Healthcare System reflects that the Veteran requested for his care to be transferred back to the VA Boston Healthcare System. The most recent VA treatment records in the claims file are from the Bay Pines VA Healthcare System (dated to January 2019), the VA Boston Healthcare System (dated to December 2017), the VA Nebraska-Western Iowa Health Care System (dated to November 2006), the White River Junction Vista electronic records system (dated to September 2009), and the Manchester Vista electronic records system (dated to March 2017). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for residuals of TBI, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for residuals of TBI from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Bay Pines VA Healthcare System for the period since January 2019; the VA Boston Healthcare System for the period since December 2017; the VA Nebraska-Western Iowa Health Care System for the period since November 2006; the White River Junction Vista electronic records system for the period since September 2009; the Manchester Vista electronic records system for the period since March 2017; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, obtain an addendum opinion from an appropriate clinician regarding the nature and severity of any symptoms associated with the Veteran’s service-connected TBI. The clinician should identify any facets of cognitive impairment that have been experienced by the Veteran since May 2001, as set forth in the revised schedular criteria for rating TBI residuals under 38 C.F.R. § 4.124a, Diagnostic Code 8045 (including any impaired memory, attention, concentration, executive functions, judgement, social interaction, orientation, motor activity, visual spatial orientation, subjective symptoms, neurobehavior effects, communication, and consciousness). For each such area of impairment identified, the clinician should opine whether it is at least as likely as not a symptom associated (in whole or in part) with the Veteran’s service-connected TBI. Also, based on the Veteran’s documented medical history and lay assertions, the clinician should identify the nature and severity of any symptoms and functional impairments associated with the service-connected TBI during the period since May 2001 and, if possible, indicate (a) whether the Veteran has ever experienced any multi-infarct dementia associated with his brain trauma during this period; (b) the nature and severity of any symptoms associated with any multi-infarct dementia associated with brain trauma; (c) whether at any point(s) during this period the TBI increased in severity; (d) the approximate date(s) of any such change(s); and (e) the severity of the disability on each date. A rationale and/or explanation should be provided for the October 2017 opinion that “although the Veteran did in fact experience executive function deficits, ataxia, loss of balance, and significant visuospatial deficits, these symptoms were all associated with non service-connected stroke and aneurysm and were not due to his TBI”. It should be reported whether there is agreement or disagreement with this opinion and a rationale must be provided.   The clinician must provide reasons for each opinion given. K. OSBORNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.