Citation Nr: 21003540 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 15-17 664 DATE: January 21, 2021 REMANDED An increased initial rating for service-connected residuals of a traumatic brain injury (TBI) greater than 10 percent from December 1, 2007 to December 5, 2019 and greater than 70 percent (as combined with a rating unspecified depressive disorder) thereafter, to include increased ratings for residual migraine headaches and emotional/behavioral dysfunction under 38 C.F.R. § 4.130 (schedule of ratings – mental disorders) is remanded. Special monthly compensation for loss of use of a creative organ associated with TBI residuals is remanded. An increased initial rating for service-connected right lower extremity radiculopathy greater than 10 percent from June 22, 2009 to December 19, 2015 and greater than 20 percent thereafter is remanded. A total disability rating for compensation based on unemployability of the individual (TDIU), to include as on an extraschedular and schedular basis for the individual disabilities of residuals of a TBI and right lower extremity radiculopathy (for purposes of obtaining special monthly compensation at the housebound rate) and on a schedular basis for all disabilities from December 1, 2007 to September 3, 2014, is remanded. REFERRED The issues of service connection for voiding dysfunction, service connection for erectile dysfunction, special monthly compensation for loss of use of a creative organ, and special monthly compensation at the housebound rate were raised in an August 2013 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. REASONS FOR REMAND The Veteran honorably served on active duty from July 1978 to May 1981 and from December 1985 to November 2007. The Board of Veterans’ Appeals is grateful to the Veteran for his long and distinguished service. This matter is back before the Board on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran perfected his appeal by filing an August 2013 Notice of Disagreement (NOD) and a May 2015 substantive appeal as to the issues of an increased initial rating for residuals of a TBI and an increased initial rating for right lower extremity radiculopathy. The Veteran testified before the undersigned at a Board hearing in June 2018. A transcript of the hearing is of record. In July 2018, the Board previously remanded these issues for updated VA examinations. After the Veteran initially appealed these issues, the Board issued a decision on the issue of an increased rating for the Veteran’s back disability, granting a 10 percent rating for right lower extremity radiculopathy effective June 22, 2009, which pre-dated the originally assigned effective date for service connection of December 11, 2012. See March 2017 Board Decision. Because this effectively changed the date of initial rating and because the Veteran appealed his initial rating, the issue is appropriately characterized as an increased rating from the new effective date of June 22, 2009. The July 2018 Board remand also remanded the issue of an earlier effective date than October 13, 2011 for the award of service connection for a depressive disorder under Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case (SOC) was sent to the Veteran in April 2020 and no substantive appeal has been filed. Accordingly, this issue is not before the Board. In the supplemental SOC (SSOC) generated from the July 2018 remand, the agency of original jurisdiction (AOJ) included the issue of an increased rating greater than 70 percent for service-connected unspecified depressive disorder. See July 2020 SSOC. The SSOC indicated that this issue would be “returned” to the Board for further adjudication. However, the issue of an increased rating for service-connected unspecified depressive disorder was not on appeal. See January 2016 NOD (appealing only the effective date and not the rating for service-connected unspecified depressive disorder). Accordingly, the Board does not have jurisdiction of this issue and cannot directly adjudicate the issue. See Barnett v. Wilkie, 32 Vet. App. 83 (2019) (finding that the absence of a NOD is a jurisdictional bar to consideration of an issue by the Board). The Board notes, however, that the Board will continue to adjudicate the issue of an increased rating for residuals of a TBI, which requires that the Veteran’s social and behavioral dysfunction stemming from residuals of TBI be considered under the general rating formula for mental disorders for all periods after October 2008 that he also had a diagnosis of a mental disorder. See 38 C.F.R. § 4.124a, Diagnostic Code (Code) 8045. Although the AOJ did not certify the issue of a TDIU rating as part of this appeal, there is evidence or a report that the Veteran has been unemployable due to the service-connected issues on appeal (right lower extremity radiculopathy and residuals of a TBI). Therefore, the Board has jurisdiction to consider the issue of a TDIU rating as part of his claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). While the AOJ granted a TDIU rating from September 3, 2014, prior to a Board remand on these issues, the grant does not bifurcate the issue and a TDIU rating remains on appeal for the entire period. See Payne v. Wilkie, 31 Vet. App. 373 (2019); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). Further, the Board notes that if either the right lower extremity radiculopathy or the Veteran’s residuals of a TBI were granted a TDIU rating, the Veteran would be eligible for special monthly compensation at the housebound rate. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Thus, a TDIU rating for these individual issues are also at issue. See Bradley v. Peake, 22 Vet. App. 280 (2008). 1. An increased initial rating for residuals of a TBI is remanded. As noted above, the Veteran’s social and behavioral dysfunction stemming from residuals of TBI must be rated under the general rating formula for mental disorders for all periods after October 2008 that he also had a diagnosis of a mental disorder. See 38 C.F.R. § 4.124a, Code 8045. The Veteran’s VA treatment record is incomplete and renders the Board incapable of rating this disability at this time. Notably, the Veteran was first prescribed an antidepressant in May 2010, see March 2019 CAPRI Records, but the only portion of this mental health treatment record that is available is the header. See May 2011 Medical Treatment Records – Government Facility. Remand to obtain the Veteran’s complete VA treatment record is required to appropriately rate the service-connected disability for the entire period on appeal. 2. An increased initial rating for residuals of a TBI is remanded. The schedular criteria require that VA “consider the need for special monthly compensation for such problems as... erectile dysfunction.” See 38C.F.R. §4.124a, DC 8045. The record does not reflect that the Veteran has been diagnosed with erectile dysfunction, but his statements indicate that he has not been able to engage in certain intimacies because of his “sexual condition.” See August 2013 NOD. Therefore, an examination and an opinion regarding whether it is at least as likely as not due to his traumatic brain injury is required before a decision can be made on this claim. VA must provide a Veteran with a medical examination and opinion when it is necessary to decide a claim. 38U.S.C. §5103A(d); 38C.F.R. §3.159(c)(4). 3. An increased initial rating for right lower extremity radiculopathy is remanded. VA treatment and VA authorized non-VA treatment records must be obtained before final adjudication these issues, regardless of relevance. See Sullivan v. McDonald, 815 F.3d; 786, 790-91 (Fed. Cir. 2016); Turner v. Shulkin, 29 Vet. App. 207, 210 ; see also Jones v. Wilkie, 918 F.3d 922, 926-27 (Fed. Cir. 2019). A remand is required to allow VA to obtain them. 4. A TDIU rating is remanded. The records reflect significant interference from his service-connected disabilities on appeal with his work-related functioning. See, e.g., December 2015 VA Examination (Peripheral Nerves); December 2019 VA Examination (Migraines). However, they also reflect that the Veteran has worked at some point since he last submitted his vocational history to VA for TDIU rating adjudicative purposes. Compare December 2019 VA Examination (Mental Disorders) (reflecting last employment in 2017) with August 2013 Veterans Application for a TDIU rating (providing a vocational history until August 2013). Accordingly, remand to obtain further information from the Veteran regarding his complete vocational history is required to adjudicate this issue. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Obtain the Veteran’s VA treatment records for the period from prior to October 2010 and from July 2020 to the present. 3. Provide the Veteran with the opportunity to submit his complete vocational history (including pertinent pay history). A VA form 21-8940, application for a TDIU rating, will be sufficient to comply with this remand directive. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and cause of the Veteran’s sexual condition. Based on the factual evidence of record and the examination, the examiner must provide an opinion whether the Veteran’s sexual condition is at least as likely as not (defined as a 50% or better probability) proximately caused by or aggravated by the Veteran’s traumatic brain injury. The examiner is advised that AGGRAVATION is defined as any increase in severity of the disability beyond its natural progression. In forming any opinions, the Board emphasizes that the Veteran is competent to report what his symptoms are and when they began. If the Veteran’s statements are inconsistent with the medical evidence, the examiner must provide a comprehensive report including a complete explanation (rationale) for all opinions and conclusions reached, citing the objective medical findings or other evidence leading to the conclusion that his statements are inconsistent with the medical evidence. Detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. If it is not possible to provide any of the requested information, the examiner must state whether this is because of a deficiency in the state of general medical knowledge (that is, no one could respond, given medical science and the known facts), a deficiency in the record (that is, additional facts are required), or the examiner (that is, the examiner does not have the required knowledge or training). If the examiner cannot provide answers because further information or diagnostic studies are required, all reasonable steps to obtain this information or diagnostic studies should be exhausted before concluding that the answer cannot be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lambert 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.