Citation Nr: 21001377 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-56 471 DATE: January 7, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a neck disability, to include as due to service-connected disabilities, is remanded. Entitlement to service connection for residuals of a cerebral vascular accident (CVA) (claimed as stroke), to include as due to service-connected disabilities, is remanded. Entitlement to a rating greater than 10 percent for residuals of a traumatic brain injury (TBI) is remanded. Entitlement to a total disability based upon individual unemployability (TDIU), to include on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1974 to December 1977. The claims are being remanded to obtain adequate medical opinions. The Veteran’s representative questioned the competency of previous VA examiners relied upon in the rating action on appeal, but noted that she could not make the necessary substantive argument without additional information as to the examiner’s qualifications. The Board is remanding the claims in part, because those medical opinions are inadequate. However, to the extent the representative asked for specific information on the previous examiners, the curriculum vitae and other information about qualifications of the medical examiners identified in the remand directives here should be requested. Francway v Wilkie, 940 F.3d 1304, 1308 (2019). See October 2020 correspondence. 1. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. The June 2015 VA examination that provided a negative nexus opinion is inadequate. The examiner appeared to rely on the absence of treatment in service. At her October 2020 Board hearing, the Veteran testified about experiencing depression symptoms during service (described as “crying spells”). The Veteran competent lay statements must be considered. The examiner also did not adequately discuss whether the Veteran’s depression was aggravated by her service-connected tension headaches. The Veteran continuously reported to the examiner that she is inconstant pain; however, the examiner does discuss or appear to consider headaches as a source of pain. The examination is further inadequate because it did not adequately address aggravation. Finally, the June 2015 VA examination noted the Veteran said she applied for Social Security benefits. On remand the Agency of Original Jurisdiction (AOJ) should attempt to obtain any Social Security Administration (SSA) records and associate the with the file. 2. Entitlement to service connection for a neck disability, to include as due to service-connected disabilities, is remanded. 3. Entitlement to service connection for residuals of a CVA (claimed as stroke), to include as due to service-connected disabilities, is remanded. The June 2015 VA examinations are inadequate. The examiner opined that headaches do not cause strokes or neck injuries. However, the Veteran testified that her blood pressure increases during headache episodes and during flare ups of her TBI residuals. The examiner did not address secondary service connection, to include aggravation. Pertaining to the neck, the examiner did not discuss the Veteran’s report of a fall from a tree and involvement in a motor vehicle accident during service or appear to consider the Veteran’s neck disability on a direct basis. Additionally, the Veteran further testified at her Board hearing that she has to use three pillows to relieve her headache symptoms possibly causing neck pain. With this additional information, a new examination is warranted to determine whether the Veteran’s neck disability was caused or aggravated by conditions associated with her service-connected tension headaches or residuals of her TBI. 4. Entitlement to a rating greater than 10 percent for residuals of a TBI is remanded. The July 2017 VA examination is inadequate. The examiner documented that the Veteran experiences headaches approximately once per month. However, the Veteran testified at her October 2020 Board hearing that she experiences headaches every day. The Veteran also testified that she experiences dizziness and frequent falls from her TBI. The Veteran should be afforded a new examination to identify all current manifestations. 5. Entitlement to TDIU, to include on an extraschedular basis is remanded. During the Veteran’s October 2020 Board hearing, the issue of TDIU was raised as part of the increased rating claim for TBI before the Board. Specifically, the Veteran reported having to leave employment because of her service-connected disabilities caused her to have balance issues because dizziness. The Veteran also reported possibly working in a protected environment for years prior to stop working. Rice v. Shinseki, 22 Vet. App. 447 (2009). On remand, have the Veteran submit an application for TDIU (VA Form 21-8940). Once the above development is completed, develop the TDIU claim to include extraschedular consideration if warranted. The matters are REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940, Application for TDIU and request that she submit the completed form, with all appropriate information. Thereafter, take all appropriate action on the TDIU claim. 2. Take appropriate action to obtain any SSA records. Any negative search results should be noted in the record. 3. After completion of the above, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and likely etiology of any diagnosed psychiatric disability. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Identify all currently diagnosed psychiatric disorders. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed psychiatric disorder was incurred in or is otherwise related to service? The examiner is asked to review and discuss the Veteran’s October 2020 Board hearing testimony where she testified that she experienced crying spells during service. (c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed psychiatric disorder is (i) proximately due to (caused by) or (ii) aggravated by (defined as any increase in disability) the Veteran’s service-connected TBI or tension headache disabilities? A complete rationale must be provided for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge; the examiner’s own expertise, or; whether additional facts are required and note what, if any, additional evidence would permit such an opinion to be made. 4. Schedule the Veteran for a VA examination with an appropriate VA examiner to determine the nature and likely etiology of any diagnosed neck disability. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner should answer the following: (a) Identify all currently diagnosed neck disabilities. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed neck disability was incurred in or is otherwise related to service? The examiner is asked to review and discuss the Veteran’s October 2020 Board hearing testimony where she testified that she experienced two falls during service. (c) If the answer to (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that any currently diagnosed neck disability is (i) proximately due to (caused by) or (ii) aggravated by (defined as any increase in disability) the Veteran’s service-connected TBI or tension headache disabilities? The examiner is asked to review and discuss the Veteran’s October 2020 Board hearing testimony where she testified that she uses three pillows during episodes of headaches and dizziness. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 5. Schedule the Veteran for a VA examination with an appropriate VA examiner, to determine the nature and likely etiology of any residuals from a stroke. Copies of all pertinent records should be made available to the examiner for review. Based on the examination and review of the record, the examiner must answer the following: (a) Identify all diagnosed residuals of a stroke. (b) Is it at least as likely as not (50 percent probability) that any currently diagnosed residuals of a stroke are (i) caused by or (ii) aggravated by (defined as any increase in disability) the service-connected TBI or tension headache disabilities? The examiner is asked to review and discuss the Veteran’s contention made during her October 2020 Board hearing that she experiences high blood pressure when experiencing tension headaches and symptoms from for TBI. A complete rationale must be provided for all opinions, citing to supporting factual data and medical literature, as appropriate. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and note what, if any, additional evidence would permit such an opinion to be made. 6. Schedule the Veteran for the appropriate VA examination to assess the severity of her service-connected residuals from a TBI. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed using the appropriate DBQ if available. 7. Obtain information regarding the qualifications of the June 2015 and July 2017 VA examiners, to include a CV and/or other similar material. A copy of this information should also be included in the record. 8. After the above development, and any additionally indicated development, has been completed, readjudicate the issues, including TDIU. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.