Citation Nr: 21000756 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 07-23 063 DATE: January 6, 2021 REMANDED Entitlement to a disability rating in excess of 30 percent for residuals of traumatic brain injury (TBI) after October 22, 2008 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2002 to February 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a January 2006 rating action, the RO granted service connection for residuals of a concussion, to include vertigo with repair of perilymph fistulas, and assigned a 10 percent disability rating. The Veteran perfected an appeal of that decision. Subsequently, in January 2008, a Decision Review Officer (DRO) granted service connection for posttraumatic stress disorder (PTSD) and assigned a 50 percent disability rating. The DRO decision also increased the evaluation for residuals of a concussion, to include vertigo with abnormal gait and oscillopsia, with repair of perilymph fistulas, from 10 percent to 30 percent disabling. In March 2010, the Board remanded the appeal in order to afford the Veteran a hearing before the Board. Thereafter, in March 2011, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is of record. In August 2011, the Board, in pertinent part, increased the evaluation for PTSD, from 50 percent to 70 percent disabling, and denied an increased rating for residuals of TBI to include vertigo, oscillopsia, abnormal gait, and status post repair of perilymph fistulas. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court granted a joint motion for partial remand (JMPR) filed by representatives for both parties, vacating the Board’s decision to the extent that it denied an increased rating for TBI after October 22, 2008 and remanding the claim to the Board. In October 2013, the Board once again denied an increased rating for residuals of TBI to include vertigo, oscillopsia, abnormal gait, and status post repair of perilymph fistulas. The Veteran again appealed the decision to the Court, which granted a joint motion for remand (JMR) filed by representatives of both parties in November 2014. In April 2015, the Board again denied the Veteran’s claim. In December 2016, the Court issued a Memorandum Decision vacating the Board’s decision and remanding the claim for additional development. In August 2017 and February 2019, the Board remanded this matter for further development consistent with the mandate of the Court’s December 2016 Memorandum Decision. The case was last remanded by the Board in October 2020, so that the RO readjudicate whether the Veteran’s claim required referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). Entitlement to a disability rating in excess of 30 percent for residuals of TBI after October 22, 2008 is remanded. While the Board regrets additional delay, it finds that further development is necessary before the claim on appeal can be decided. The December 2016 Court’s Memorandum Decision found that the Board, in its April 2015 decision, failed to provide an adequate statement of reasons and bases regrading why a separate disability is not warranted for the cognitive impairment and/or emotion or behavioral dysfunction resulting from the Veteran’s TBI, that is, in addition to the staged ratings already assigned for his PTSD. In this regard, the Court pointed out that a Dr. Hoffmann indicated in a March 2011 psychological evaluation report that the Veteran had a separate diagnosis of cognitive disorder, not otherwise specified (NOS), in addition to PTSD. In February 2019, the Board remanded the claim to request a medical opinion as to assess the separability of the Veteran’s TBI symptoms. In an October 2019 addendum opinion, a VA neurologist stated that the December 2017 VA TBI examination indicates the Veteran having symptoms of irritability, impulsivity, unpredictability, lack of cooperation and inflexibility and likely, these symptoms are directly related to TBI since these symptoms are not documented as being related to his PTSD and/or depression NOS in the April 2010 VA examination report. It was noted, however, that the December 2017 TBI examination does not indicate the Veteran having symptoms of depression as a residual of TBI and does not document a diagnosis of cognitive disorder NOS. The examiner therefore concluded that there is no formal mental health diagnosis meeting DSM criteria caused by the Veteran’s TBI. There are only neurobehavioral symptoms related to his TBI. Regarding diagnoses of PTSD and depression NOS as listed in the April 2010 VA examination reported, the examiner stated that although symptoms of both of these mental disorders can be delineated from each other, the Veteran’s PTSD and depression are related and the secondary diagnosis (depressive disorder NOS) represents a progression of the primary diagnosis (PTSD). While this examiner noted that the December 2017 TBI examination did not document a diagnosis of cognitive disorder NOS, it is not clear whether such a diagnosis is not warranted based on the DSM-5 criteria or simply not documented in the December 2017 VA TBI examination report. Concerning this, the examiner failed to address the separate diagnosis of cognitive disorder, NOS provided by Dr. Hoffmann in March 2011, which appears to be inconsistent with the findings on the December 2017 VA examination. The record also shows evidence of cognitive impairment symptoms associated with the Veteran’s TBI. For example, the October 2007 VA TBI examination report indicated a diagnosis of TBI with severe cognitive impairment manifested by decreased attention, decreased concentration, and increased aggressiveness. Similarly, a February 2010 private neuropsychological examination conducted by Dr. T. showed disturbance in attention and working memory that were found to be “hallmark” findings in TBI cases. More importantly, the examiner failed to address the crucial question at issue, that is, whether the manifestations of any separate cognitive disorder are clearly separable from the manifestations of the Veteran’s PTSD. Consequently, in compliance with the December 2016 Court’s Memorandum Decision, the case is remanded for a supplemental medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). The matter is REMANDED for the following actions: 1. Obtain any updated VA outpatient treatment records for the Veteran, dated from July 2018 to the present, from the VA Medical Center in Muskogee, Oklahoma, and all associated clinics. All records and/or responses received should be associated with the claims file. 2. Forward the Veteran’s claims file to a VA examiner with the appropriate expertise to obtain a medical opinion regarding the Veteran’s TBI symptoms. The record must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Upon a review of the record, the examiner should respond to the following: a) Clarify whether the Veteran has a mental health diagnosis of cognitive disorder, NOS related to the Veteran’s service-connected TBI. If the examiner finds no cognitive disorder, explain the reasons why, in light of the diagnosis of cognitive disorder, NOS provided by Dr. Hoffmann in a March 2011 private psychological evaluation report. b) If the examiner finds a diagnosis of cognitive disorder, identify all symptoms attributable to this diagnosis and provide an opinion as to whether the symptoms attributable to cognitive disorder, NOS are clearly separable from the Veteran’s PTSD symptoms. c) If the examiner finds that the symptoms attributable to each mental health diagnosis are not clearly separable, the examiner must explain why. (Continued on the next page)   A complete rationale specific to the Veteran should be given for each opinion expressed. 3. After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s claim in light of any additional evidence added to the record, including whether referral is necessary for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b). If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. L. CHU Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.