Citation Nr: 21004574 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-14 747 DATE: January 27, 2021 REMANDED Entitlement to an initial compensable rating for the service-connected migraine headaches, including migraine variants associated with residuals of a traumatic brain injury (TBI), is remanded. Entitlement to a rating in excess of 50 percent for the service-connected posttraumatic stress disorder (PTSD) with residuals of a TBI and a major depressive disorder (MDD) from November 25, 2016 to March 25, 2019, and in excess of 70 percent from March 26, 2019, is remanded. Entitlement to a rating in excess of 10 percent for the service-connected chronic mild residuals of a right ankle strain is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2008 to December 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO increased the rating for the Veteran’s service-connected PTSD with TBI to 50 percent disabling, effective November 25, 2016. The RO also granted service connection for migraine headaches and assigned a noncompensable rating, effective November 25, 2016. This matter was previously before the Board in May 2019 and April 2020. In May 2019, the Board denied entitlement to a compensable rating for migraine headaches and remanded the Veteran’s claims for increased ratings for his service-connected PTSD and service-connected right ankle disability for further development. In a June 2019 rating decision, the RO assigned a 70 percent rating for the Veteran’s service-connected PTSD, effective March 26, 2019. In April 2020, the Board again remanded the Veteran’s claims for increased ratings for the service-connected PTSD and service-connected right ankle disability. The Veteran appealed the Board’s May 2019 decision denying an initial compensable rating for migraine headaches to the United States Court of Appeals for Veterans Claims (Court). In July 2020, the Court granted a Joint Motion for Partial Remand (JMR) to vacate and remand this matter back to the Board. Entitlement to an initial compensable rating for the service-connected migraine headaches, including migraine variants associated with TBI The July 2020 JMR and Court Order found that the May 2019 Board decision erred by failing to provide adequate reasons and bases for its conclusion that an initial compensable rating was not warranted. Specifically, the JMR noted that the Board failed to reconcile favorable evidence of the Veteran’s reported flare-ups with the April 2014 VA examiner’s finding that the Veteran did not have characteristic prostrating attacks. Although the Board regrets the additional delay, a remand is warranted to obtain an updated VA examination to determine the severity of the Veteran’s migraine disability. The Veteran was most recently examined in January 2017, approximately four years ago, and the Board finds that this examination is inadequate as the examiner failed to address the Veteran’s reports of migraines and headache flare-ups and whether or not these flare-ups were consistent with characteristic prostrating attacks. Both the April 2014 and January 2017 VA examiners found that the Veteran did not have characteristic prostrating attacks of migraine headaches, but both failed to explain how this conclusion was reached in spite of the Veteran’s reports of his symptoms and flare-ups. As these examinations of record failed to consider adequately the Veteran’s contentions and reports of his symptoms in determining the severity of his migraine headaches disability, a new examination is warranted to ensure that there is a complete and adequate record upon which to make a determination. Entitlement to a rating in excess of 50 percent for the service-connected PTSD with residuals of a TBI and MDD from November 25, 2016 to March 25, 2019, and in excess of 70 percent from March 26, 2019 After carefully considering this matter, and for reasons expressed immediately below, the Board finds that this case must be remanded for further development. The Board regrets the additional delay associated with this remand but finds that a remand is necessary to ensure that the Veteran is accorded full compliance with VA’s statutory duty to assist. A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In April 2020, the Board remanded this matter to obtain a new VA examination and to consider whether the Veteran is entitled to separate disability ratings based on his PTSD, TBI, and MDD. The Board noted that the prior examinations included conflicting opinions as to whether the symptoms attributable to each disability could be parsed out and whether, if the symptoms could be parsed out, separate disability ratings would be warranted. The Board requested a new VA examination to evaluate the current severity of the Veteran’s PTSD, TBI, and MDD. The Veteran was accorded a VA PTSD examination in July 2020. This examination evaluated the Veteran’s PTSD and MDD and found the symptoms to overlap and to be of the same nature. The examiner touched on the Veteran’s diagnosed TBI but did not provide a separate evaluation of the Veteran’s TBI. The examiner indicated that the symptoms and their resulting impairments overlap but could not determine their individual impact. In discussing symptoms associated with the TBI, the examiner noted that the Veteran experiences memory deficits and periodic concentration problems that can be attributed to his TBI and to his PTSD and MDD—and that it was, thus, not possible to differentiate the symptoms. The Board finds that the development conducted following the April 2020 remand is incomplete. While the July 2020 VA examination evaluated the Veteran’s PTSD and MDD, the examination only briefly touched on the Veteran’s TBI and did not provide a full description of his TBI or report the signs and symptoms of such. The examiner did not identify residuals of his TBI that are separate and distinct from his PTSD and MDD as requested and failed to address this component of the Veteran’s service-connected disability. Accordingly, the Board finds that a remand is necessary to obtain appropriate examinations that fully address the nature of the Veteran’s disabilities and the signs and symptoms relevant for evaluating these disabilities under the relevant rating criteria. In addition to obtaining a PTSD examination, the Veteran’s TBI should be evaluated via an appropriate examination and report and the examiner is asked to identify any residuals of TBI that are separate and distinct from his PTSD and MDD symptoms in order to determine whether the Veteran is entitled to separate disability ratings for such. Entitlement to a rating in excess of 10 percent for the service-connected chronic mild residuals of a right ankle strain In May 2019 and April 2020, the Board remanded this matter for a new VA examination to ascertain the current severity of the Veteran’s service-connected disability. In the May 2019 remand, the examiner was asked to discuss the ranges of motion of the Veteran’s right ankle on active and passive testing and on weight-bearing and nonweight-bearing, as required by the Court in Correia v. McDonald, 28 Vet. App. 158 (2016). After inadequate development was conducted via an August 2019 VA examination, this request for range of motion testing consistent with Correia was reiterated in the April 2020 Board remand, and the examiner was additionally asked to consider the Veteran’s reports of flare-ups. Following the April 2020 remand, the Veteran was accorded a new VA examination in September 2020. Unfortunately, the Board finds this examination to be inadequate. Specifically, while the examination report records the range of motion of the Veteran’s right ankle, there is no indication as to whether such measurements are for active or passive motion, or in weight-bearing and nonweight-bearing. In this regard, the Board acknowledges that the September 2020 VA examiner noted that there was evidence of pain on passive range of motion and in weight-bearing and nonweight-bearing of the right ankle. However, the examiner did not indicate at what degree this pain was indicated or whether such pain amounted to an additional loss in the ranges of motion of the Veteran’s right ankle. While the examiner responded to the Correia criteria, the examiner did not include an assessment of the Veteran’s right ankle ranges of motion in passive motion, weight-bearing, and nonweight-bearing, which amounts to only a cursory evaluation of the Correia criteria. Given the inadequacies of the September 2020 VA examination, a remand for corrective action is necessary, to include providing the Veteran a new VA examination that adequately addresses the current severity of his service-connected chronic mild residuals of a right ankle strain. Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the severity of his service-connected migraine headaches. The entire claims file must be made available to, and be reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. The examiner is asked to describe the frequency of the Veteran’s migraines, the characteristics of his prostrating attacks, and whether his prostrating attacks result in severe economic inadaptability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Also, schedule the Veteran for an appropriate VA examination to evaluate the current severity of his PTSD, TBI, and MDD. The entire claims file must be made available to, and be reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail. Following review of the claims folder, an interview with the Veteran, and completion of any testing deemed necessary, the examiner should fully describe the current extent and symptoms associated with the Veteran’s service-connected PTSD with residuals of a TBI and MDD. In so doing, the examiner is asked to: a. provide a full description of the psychiatric aspect of this disability (to include the service-connected PTSD and MDD) and report all signs and symptoms necessary for evaluating this disability under the appropriate rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of the relevant symptoms. The examiner is specifically asked to address the extent of social and occupational impairment resulting from the Veteran’s PTSD and MDD. b. To the extent feasible, the examiner should identify any TBI residuals that are separate and distinct from his PTSD and MDD symptoms. The examiner is asked to address the frequency and severity of any such TBI residuals shown. (If a separate examination to address this matter is deemed necessary, it should be conducted.) The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 3. Also, schedule the Veteran for a VA examination to determine the current severity of his service-connected chronic mild residuals of a right ankle strain. The entire claims file, including a copy of this remand, should be made available to, and reviewed by, the examiner. Any indicated tests and studies must be accomplished, and all clinical findings found on examination to be associated with this disability must be reported in detail. The examiner should test the range of motion and pain in the Veteran’s right ankle in active and passive motion and in weight-bearing and nonweight-bearing and should provide the range of motion measurements for such testing using a goniometer. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. Also, the examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and after repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of the pain, the examiner must opine as to whether there would be additional limits on functional ability during flare-ups. All loses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer any such opinion without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information—i.e. frequency, duration, characteristics, severity, or functional loss—regarding the Veteran’s flare-ups by alternative means. The examiner is advised that the Veteran is competent to report his symptoms and history and that such reports must be acknowledged and considered in formulating any opinion. A clear explanation for all opinions would be helpful, as well as a rationale for all opinions rendered, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The (CONTINUED ON NEXT PAGE) Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.