Citation Nr: 20056774 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 15-23 153A DATE: August 27, 2020 REMANDED Entitlement to an initial compensable rating for the residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 2006 to August 2006, and from February 2010 to March 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in October 2019, at which time it was remanded for further development, as discussed below. The Board finds that the remand directives were not substantially complied with and thus another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial compensable rating for traumatic brain injury (TBI) is remanded. An October 2019 Board decision remanded the claim of entitlement to a compensable initial rating for TBI residuals and directed the Agency of Original Jurisdiction (AOJ) to schedule the Veteran for a VA examination to determine the current severity of his TBI disability. Specifically, the VA examiner was directed to address whether the Veteran’s reported expressive difficulties and spatial disorientation are residuals of his service-connected TBI. 10/03/2019, BVA Decision. A December 2019 VA examination addressed each facet in ascertaining the severity of the Veteran’s TBI. Specifically, for the memory, attention, concentration, executive functions facet, a “3” level was assigned with objective evidence on testing of moderate impairment. For the judgment facet, a “total” level was assigned with severely impaired judgment. For the social interaction facet, a “3” level of impairment was assigned because his social interaction is inappropriate most or all of the time. For the orientation facet, a “3” level was assigned because the Veteran is often disoriented to two or more of the four aspects of orientation. For the motor activity facet, a “0” level of impairment was assigned for normal motor activity. For the visual spatial orientation facet, a “3” level was assigned because the Veteran is moderately severely impaired. For the subjective symptoms facet, a “1” level was assigned with three or more subjective symptoms that mildly interfere with work. For the neurobehavioral effects facet, a “3” level was assigned with one or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. For the communication facet, a “0” level of impairment is assigned when able to communicate by spoken or written language (expressive communication) and to comprehend spoken and written language. And, for the consciousness facet, a “0” level of impairment was assigned for normal consciousness. 01/08/2020, C&P Exam. As an initial matter, the Board notes that the Court has interpreted 38 U.S.C. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. Essentially, under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. Here, some the Veteran’s symptoms for residuals of TBI overlap with his symptoms of service-connected PTSD and migraine headaches, such that to rate him under both the criteria for TBI under DC 8045, and PTSD under DC 9411 and headaches under DC 8100 would constitute pyramiding. Here, the Veteran’s impairments that overlap with the Veteran’s service-connected PTSD and migraines insofar as to constitute pyramiding are as follows: memory, attention, concentration, and executive functions; judgement; and subjective symptoms of headaches, anxiety, dizziness, and light and sound sensitivity. However, the December 2019 VA examiner noted that the Veteran’s social interaction is inappropriate most or all of the time, and that he avoids all social interaction. Moreover, the Veteran is often disoriented as to time and place, and gets lost easily. And, the Veteran’s neurobehavioral effects impairment manifests in verbal and physical aggression, as well as belligerence and lack of empathy. An addendum opinion is necessary to determine whether these symptoms are contemplated by the Veteran’s currently assigned 70 percent rating for PTSD. Furthermore, the Board finds the VA examination to be inadequate because the examiner did not explicitly address whether the Veteran’s spatial disorientation is a residual of his service-connected TBI. Although the examiner indicated that he could not delineate symptoms from TBI and PTSD as symptoms overlap, the examiner is unclear as to whether he is referring to all of the Veteran’s TBI symptoms or specifically referring to his headaches. Finally, the examiner did not provide a supporting rationale as to why differentiation is not possible without speculation. This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. Additionally, request the Veteran to submit any relevant private treatment reports or provide VA with authorization to obtain any such records. 2. After completing directive # 1, obtain an addendum opinion from an appropriate clinician to clarify information regarding the current severity of his service-connected TBI. Specifically, the clinician is to provide an opinion as to whether the Veteran’s impairments in social interaction, orientation as to time and place, and neurobehavioral effects may be differentiated from his service-connected headaches and PTSD. The clinician is to provide supporting rationale as to why differentiation is or is not possible without speculation. If the clinician determines that the aforementioned impairments cannot be differentiated, but are also attributable to the Veteran’s service-connected PTSD, the clinician is to provide an opinion as to whether the Veteran’s impairments manifest in grossly inappropriate behavior, persistent danger of hurting self or others, or disorientation to time or place. The clinician is to also provide an opinion as to whether those symptoms result in total occupational and social impairment. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.