Citation Nr: 21004928 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-10 982 DATE: January 28, 2021 ORDER Entitlement to an initial rating of 30 percent prior to January 16, 2020 for migraines is granted, subject to the laws and regulations governing monetary awards. Entitlement to a rating of 50 percent for migraines from January 16, 2020 onward for migraines is granted, subject to the laws and regulations governing monetary awards. Entitlement to a rating in excess of 30 percent prior to January 13, 2020, and in excess of 50 percent from that date forward for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. From June 24, 2011 to January 16, 2020, the Veteran’s migraines symptomology most closely approximated prostrating attacks occurring on an average once a month over the last several months; they were not characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. From January 16, 2020 onward, the Veteran’s migraines were characterized by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. Prior to January 13, 2020, the Veteran’s PTSD symptoms were productive of, at most, occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with routine behavior, self-care and normal conversation with symptoms of depression, anxiety, disturbed sleep, irritable mood and suspiciousness. Symptoms productive of occupational and social impairment with reduced reliability and productivity or greater levels of impairment were not found during the appeal period. 4. From January 13, 2020 onward, the Veteran’s PTSD symptoms were productive of, at most, occupational and social impairment with reduced reliability and productivity. Symptoms productive of occupational and social impairment with deficiencies in most areas or greater levels of impairment were not found during this appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 30 percent prior to January 16, 2020 for migraines have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.12, 4.1-4.14, 4.125a Diagnostic Code (DC) 8100 (2019). 2. The criteria for entitlement to a rating of 50 percent from January 16, 2020 onward for migraines have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.12, 4.1-4.14, 4.125a DC 8100. 3. The criteria for entitlement to a rating in excess of 30 percent prior to January 13, 2020, and in excess of 50 percent from that date forward for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130; DC 9201-9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from September 2005 to June 2009. These issues come before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were recently remanded in October 2019 for additional development, including to afford the Veteran new VA examinations, which were accomplished in January 2020. A review of the record shows substantial compliance with the Board’s prior remand; therefore, additional development is not needed. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The United States Court of Appeals for Veterans’ Claims (the Court) since has extended this practice even to established ratings, not just initial ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). 1. Entitlement to a compensable rating prior to January 16, 2020, and in excess of 30 percent thereafter for migraines. The Veteran contends that his migraine symptoms are worse than the ratings currently assigned. The rating decision on appeal granted service connection for migraines and assigned a noncompensable rating effective June 21, 2011. The Veteran timely appealed that determination to the Board. During the pendency of this appeal, a July 2020 rating decision increased the rating to 30 percent based on the Veteran’s symptomology. The Veteran’s migraines are rated under Diagnostic Code (DC) 8100. Under DC 8100, a zero percent rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in two months over last several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average once a month over last several months. A 50 percent rating is warranted for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. “Productive of severe economic inadaptability” has not been clearly defined by regulations or by case law. The United States Court of Appeals for Veterans Claims (Court) has noted that “productive of” can either have the meaning of “producing” or “capable of producing.” Pierce v. Principi, 18 Vet. App. 440, 445 (2004). Thus, migraines need not actually “produce” severe economic inadaptability to warrant the 50 percent rating. Id. at 445-46. Further, “economic inadaptability” does not mean unemployability, as such would undermine the purpose of regulations pertaining to TDIU. Id. at 446; see also 38 C.F.R. § 4.16. The rating criteria do not define “prostrating” nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes DC 8100 verbatim but does not specifically address the matter of what is a prostrating attack). By way of reference, according to WEBSTER’S NEW WORLD DICTIONARY OF AMERICAN ENGLISH 1080 (3rd Ed. (1986)), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1531 (32nd Ed. (2012)), in which “prostration” is defined as “extreme exhaustion or powerlessness.” Prior to January 16, 2020 Factual History A review of the post-service VA treatment record note complaints and treatment for migraines. A July 2009 VA treatment record noted the Veteran’s migraine complaints occurring three to four times per month, located frontally bilaterally, and usually occurring at night that would prevent him from falling asleep. He denied any visual disturbance, vomiting or aura. An August 2009 VA treatment record note the Veteran’s migraines to be of moderate severity. While this evidence is outside of the appeal period, it is instructive to the Board’s determination of the severity of the Veteran’s migraines. The Veteran underwent a VA examination in August 2011. The examiner noted migraine headaches lasting two to three hours approximately twice per week. The Veteran reported migraine intensity of “6-9 out of 10” but were not prostrating. A March 2013 VA treatment record noted the Veteran denying any headaches or migraines. The Veteran submitted lay statements in April 2015, stating that he experienced six to ten intense migraines per month, which would last one to three hours. He also stated that his migraines were so intense that “I must lay down after taking Excedrin and drinking water.” Analysis The Board finds that an initial rating of 30 percent, but not higher, is warranted for this appeal period. Based on a review of the evidence of record, the Veteran’s headaches have occurred at least once a month and were prostrating in nature. While the medical evidence did not note the presence of prostrating migraines, it does indicate frequent severe migraines that occurred several times a month. In addition, the Veteran has submitted lay statements that these severe migraines would occur at least once a month and caused him to lie down until his symptoms dissipated. The Veteran is competent to report on his experiences and observations. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, his statements are afforded probative value. Given the benefit of the doubt, the evidence shows that the Veteran has experienced prostrating migraines that occurred at least once a month. However, a rating of 50 percent is not warranted. In order for the Veteran to warrant the next higher rating of 50 percent, the evidence must establish that the Veteran has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The evidence of record demonstrates that generally the Veteran had prostrating migraines about once a month. There is no evidence that the Veteran experienced frequent prostrating migraines that were productive of severe economic inadaptability during this time period. While the Veteran stated that he would have to lie down to alleviate his symptoms, this evidence does not demonstrate that the migraines were productive of severe economic inadaptability during this period. The Board notes the 30 percent evaluation assigned from January 16, 2020, as discussed below, on the basis of a January 16, 2020 VA examination. From a practical standpoint, it is unlikely that the severity of the symptoms upon which the Board has based the 30 percent evaluation began on the specific day of examination. However, there is no medical or lay evidence prior to that examination suggestive of symptoms productive of severe economic inadaptability. The evidence suggests that during this time period, the Veteran’s headache symptoms fluctuated from nonexistent to prostrating attacks approximately once per month, resulting in notably less than severe economic inadaptability, as contemplated by the 30 percent rating. Therefore, given the frequency, severity, and duration of the Veteran’s symptomology from June 21, 2011 to January 16, 2020, his symptoms most closely approximate the criteria contemplated for a 30 percent rating. From January 16, 2020 Factual History The Veteran underwent a VA examination in January 2020. He was diagnosed with migraines. The examiner noted the Veteran’s reports of constant headaches since his in-service injury, with treatment of ibuprofen and water. The examiner noted that the Veteran’s reports of pulsating or throbbing head pain localized to one side of his head, with sensitivity to light. The examiner also noted that the head pain would last less than one day and would be located in the temporal area of the forehead. The examiner found that the Veteran experiencing characteristic prostrating migraine attacks once a month. In addition, the examiner found that the Veteran had very prostrating and prolonged migraines attacks that were productive of severe economic inadaptability. Furthermore, the Veteran reported that he would miss time from work when he experienced migraines and would have to lie down in a quiet room to alleviate his symptoms. Analysis The Board finds that a 50 percent rating is warranted. Based on a review of the evidence of record, the Veteran has experienced frequent prostrating migraines that were productive of severe economic inadaptability during this time period. The Veteran has stated that he would have to lie down to alleviate his symptoms and would have to miss work due to his migraines. This evidence demonstrates that the migraines were productive of severe economic inadaptability during this period. This is the highest rating assigned under this diagnostic code, with no evidence demonstrating that the Veteran’s migraines are of such an exceptional nature to warrant extra-schedular consideration. 2. Entitlement to a rating in excess of 30 percent prior to January 13, 2020, and in excess of 50 percent thereafter for posttraumatic stress disorder (PTSD) The Veteran contends that his PTSD symptoms are worse than the ratings currently assigned. The rating decision on appeal granted service connection for PTSD and assigned a 30 percent rating effective June 21, 2011. The Veteran timely appealed that determination to the Board. During the pendency of this appeal, a July 2020 rating decision increased the rating to 50 percent based on the Veteran’s symptomology. The Veteran’s PTSD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9413 (2019). Ratings are assigned according to the manifestation of particular symptoms, regardless of the psychiatric diagnosis that is rendered. The rating criteria provide that a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Prior to January 13, 2020 Factual History A July 2009 VA treatment record noted the Veteran experiencing difficulty sustaining attention during his college coursework. In addition, he reported cognitive difficulties since his in-service injury, such as misplacing possessions and needing to record his activities to recall later. He further reported sleep difficulties and social discomfort with younger studies who ask about his combat experiences “in an immature manner.” He endorsed alcohol abuse on an episodic basis, drinking to intoxication while out with friends on the weekend. A mental status examination was conducted. The Veteran was found to be alert and had a good ability to follow commands. Comprehension, naming, and repetition were found to be intact. Affect was observed to be normal. The Veteran denied suicidal/homicidal ideation. No psychomotor agitation was observed. He was found to be oriented to time, place, person, and situation. Remote and recent memory were found to be intact. Insight and judgment were found to be good. While this evidence is outside of the appeal period, it is instructive to the Board’s determination of the severity of the Veteran’s PTSD symptoms. The Veteran underwent a VA examination in August 2011. He was diagnosed with PTSD. He reported being close to his brother and father, and had a girlfriend for over two years since his discharge. He also reported earning his associate degree with a high G.P.A., being registered for full time study at William Patterson University, and seeking employment. He denied any history of mental health treatment. He also denied any legal or behavioral issues, as well as any substance abuse issues. The examiner noted the following symptoms on examination: anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood. The examiner found that the PTSD symptoms led to occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Board notes that the Veteran has not undergone any VA or private mental health treatment, aside from his VA evaluations. Analysis The Board finds that the evidence of record demonstrates that the Veteran’s PTSD symptoms more nearly approximate a rating of 30 percent point during this appeal period. A rating of 50 percent or more is not warranted. During the period on appeal the Veteran’s PTSD was manifested by occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks with symptoms of depression, anxiety, disturbed sleep, irritable mood and suspiciousness. The Veteran’s current symptoms are contemplated by the 30 percent rating. The record during this time period does not demonstrate that the Veteran had experienced flattened affect or circumstantial, circumlocutory, or stereotyped speech. The record demonstrates that his affect has been normal during the period on appeal. In addition, his speech was found to be normal. There is no evidence to demonstrate that the Veteran had difficulty in understanding complex commands. The pertinent evidence of record demonstrates that he denied any suicidal or homicidal ideations during this period. In addition, there is no evidence of violence or violent outbursts by the Veteran during this time period. The Veteran’s thought process was found to be coherent and logical. The evidence does not demonstrate that the Veteran experienced anxiety of a severity, frequency or duration consistent with panic attacks more than once a week. There was also no evidence of hallucinations, delusions, or ritualistic behavior. The Veteran reported memory issues during the appeal period. While impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks) is part of the criteria for a 50 percent evaluation, this single reference to a single symptom included in the 50 percent rating is insufficient to warrant an increased rating. As stated above, the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment. As set out above, the evidence of record more nearly approximates a 30 percent rating based on a lack of evidence demonstrating flattened affect, impaired impulse control, violence or violent outbursts, panic attacks occurring more than once a week, difficulty in understanding complex commands, or impaired judgment. Based on the foregoing, the Veteran’s symptomology have been consistent and experienced by occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with symptoms such as depression, anxiety, disturbed sleep, irritable mood and suspiciousness. As such, a rating of 50 percent or greater for the Veteran’s PTSD is not warranted. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends that his PTSD symptoms warrant a higher rating. He submitted lay statements in March 2015, stating that he struggled with daily activities, experienced poor sleep with nightmares related to combat, had strained relationships with friends and family, experienced poor concentration and memory issues, and experienced uncontrolled anger and rage. The Board acknowledges that the Veteran is competent to give evidence about what she observes or experiences. Layno v. Brown, 6 Vet. App. 465 (1994). That stated, the evidence of record does not favor a finding that the Veteran is entitled to a higher rating than the 30 percent currently assigned for his PTSD during this time period. His current symptomology is encapsulated in the current rating assigned under the Rating Schedule, with no evidence of symptomology warranting extra-schedular consideration. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). Accordingly, the Veteran’s claim of entitlement to a higher rating for his PTSD disorder is denied. From January 13, 2020 Factual History The Veteran underwent a VA examination in January 2020. He was diagnosed with PTSD and alcohol use disorder. The examiner was not able to differentiate which occupational and social impairment was caused by the Veteran’s PTSD and TBI. The Veteran reported having a stable relationship with his wife of five years and his children and was currently employed as a police officer. However, he reported having difficulty with his neighbors and having only “2 friends.” He denied participation in mental health treatment. He endorsed alcohol use about three time per week, consuming upwards of 12 beers each time. He also endorsed binge use of alcohol for the past three years, consuming a 12 pack of beer four days per week. He also endorsed a lack of self-control related to gambling and reported a history of driving recklessly, with previous passive thoughts of death, but no active plan or intent. He adamantly denied suicidal or homicidal ideation. The examiner noted the following symptoms on examination: anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting. The examiner found that the PTSD symptoms led to occupation and social impairment with reduced reliability and productivity. A mental status examination was conducted. The Veteran presented as calm, but stoic. The examiner noted that the Veteran seemed rigid and uncomfortable during the examination. He was observed to be casually dressed with adequate hygiene. He made adequate eye contact. Thought processes were found to be concrete and logical. He spoke when addressed, but he did not spontaneously offer information of his own volition. Affect was described as flattened with a congruent mood. He was found to be oriented to time, place, person, and situation. No bizarre or unusual behaviors were noted. The Board notes that the Veteran has not undergone any VA or private mental health treatment, aside from his VA evaluation. Analysis The Board finds that the evidence of record demonstrate that the Veteran’s PTSD symptoms more nearly approximate the criteria for a 50 percent evaluation during the appeal period. A rating of 70 percent or more is not warranted. The record does not demonstrate that the Veteran experienced intermittent illogical, obscure or irrelevant speech as a result of his PTSD symptomology during this time period. His speech was reported to be normal. There is also no evidence of the Veteran exhibiting spatial disorientation, or a neglect of his personal appearance and hygiene. While the Veteran reported irritability and anger issues, the vast majority of the evidence shows no complaints of prolonged irritability or anger issues. The evidence also does not demonstrate that the Veteran reported any disorientation to time or place. Additionally, the evidence does not demonstrate that the Veteran has experienced any auditory or visual hallucinations. The evidence does not demonstrate near-continuous panic or depression affecting his ability to function independently, appropriately and effectively. In addition, he never reported any obsessive thoughts that interfered with his routine activities. There is no indication that the Veteran experienced obsessive thoughts which affected his employability or social interactions. He reported that he had good relationships with his wife and children, as well as two other friends. This evidence does not demonstrate that the Veteran has an inability to establish and maintain effective relationships as a result of his PTSD. The evidence of record also demonstrates that the Veteran has not experienced any auditory or visual hallucinations, as well as any other symptoms of psychosis. The Veteran reported alcohol use and gambling issues throughout the appeal period, which would indicate possible impaired impulse control. In addition, the Veteran endorsed passive thoughts of death, but denied any suicidal or homicidal ideation. While impaired impulse control and suicidal ideation are part of the criteria for a 70 percent evaluation, these references to two symptoms included in the 70 percent rating is insufficient to warrant an increased rating. As stated above, the rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment. As set out above, the evidence of record more nearly approximates a 50 percent rating based on a lack of evidence demonstrating suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and an inability to establish and maintain effective relationships. In adjudicating this claim, the competence and credibility of lay statements must be considered by the Board. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran contends his symptoms warrant a higher rating. That stated, these allegations of worsening symptomology are undercut by the other evidence of record, which does not favor a finding that the Veteran is entitled to a higher rating than the 50 percent currently assigned for his psychiatric disability during the appeal period based on the symptomology present. Indeed, his statements are contradicted by the pertinent medical evidence, which noted that he maintained stable employment as a police officer, maintained interpersonal relationships, and managed his finances independently. Based on the foregoing, the Board finds the PTSD symptomology has been productive of, at most, occupational and social impairment with reduced reliability and productivity during the appeal period. As such, a rating in excess of 50 percent for the Veteran’s PTSD is not warranted at any time. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for TBI. The Veteran contends that his TBI symptoms are worse than the rating currently assigned. The March 2012 rating decision on appeal granted service connection for TBI and awarded a 10 percent rating effective June 21, 2011. The Veteran timely appealed this determination to the Board. The Board remanded this matter in October 2019 for a VA examination to be conducted to determine the current severity of the Veteran’s TBI. The Veteran underwent a TBI examination in January 2020. He was diagnosed with TBI, migraines and memory loss. The examiner noted the Veteran’s report of constant migraines, memory issues, and extreme sensitivity to light and sound since his in-service injury. The examiner found a complaint of mild memory loss, but then cited an August 2011 VA examination report as rationale for this determination. In addition, the examiner found that the Veteran’s judgment was normal, his social interactions was routinely appropriate, he was always oriented to person, time, place, and situation, his motor activity was normal, that he was able to communicate and comprehend spoken and written language, and had normal consciousness. The examiner then found that the Veteran experienced mildly impaired visual spatial orientation and one or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Again, the examiner merely cited the previous VA examination report as rationale for these evaluations. The VA has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist including providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159 (c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examination is inadequate for adjudicative purposes. The examiner merely cited previously reported symptoms found in an August 2011 VA examination as evidence of the Veteran’s current symptomology. In addition, the examiner failed to take into account the Veteran’s lay statements concerning worsening symptomology since his last VA examination. Furthermore, the TBI examination does not appear to have been conducted by an appropriate clinician, specifically, a physiatrist, psychiatrist, neurologist, or neurosurgeon as required by the VA’s Adjudication Procedures Manual, but was conducted by a nurse practitioner. M21-1, III.iv.3D.2.j.. There is no evidence that demonstrates that the nurse practitioner is clinically privileged to perform activities required for VA TBI examinations, or has evidence of expertise through training and demonstrated experience. Based on the foregoing, the latest TBI examination report is inadequate and cannot be used by the Board to determine the current severity of the Veteran’s TBI. As such, this matter must be remanded for a new TBI examination to be conducted. The matter is REMANDED for the following action: 1. Obtain updated VA and/or private treatment records to the extent possible. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the above has been completed to the extent possible, schedule the Veteran for a VA TBI examination by a specialist in psychiatry, neurology, or neurosurgery that has training and experience with TBI to determine the current level of severity of his service-connected TBI. The examination may be conducted by a nurse practitioner, a clinical nurse specialist, or a physician assistant, if clinically privileged to perform activities required for VA TBI examinations, and have evidence of expertise through training and demonstrated experience, and may conduct the TBI examination under the close supervision of a board-certified or board-eligible physiatrist, neurologist, or psychiatrist, if possible. The claims file must be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner should describe the severity, frequency, and duration of all symptoms associated with the Veteran’s disability. The examiner should also consider all of the evidence of record, including the Veteran’s lay   statements. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.T. Massey, 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.