Citation Nr: 21061308 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-30 151 DATE: October 1, 2021 REMANDED Whether discontinuance of the separate rating for residuals of traumatic brain injury (TBI) with cognitive disorder was proper is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1994 to December 1997, August 2006 to November 2007, June 2009 to August 2010, December 2010 to September 2012, and February 2013 to August 2013. His awards include the Combat Action Badge, Bronze Star Medal, and Army Commendation Medal. This matter initially came before the Board of Veterans' Appeals (Board) from an August 2016 rating decision, in which the agency of original jurisdiction (AOJ) discontinued a separate 10 percent rating for residuals of TBI with cognitive disorder, rated the disability as part of the Veteran's service-connected posttraumatic stress disorder (PTSD), and denied entitlement to a rating in excess of 70 percent for the re-characterized PTSD to include residuals of TBI. In February 2019, the Board remanded this matter for further development. Whether discontinuance of the separate rating for residuals of TBI with cognitive disorder was proper is remanded. The Veteran contends that a compensable rating for his service-connected residuals of TBI with cognitive disorder, that is separate from his service-connected PTSD, is warranted. In particular, he contends that a separate rating is warranted on the basis of impairment of memory, attention, concentration, and/or executive functions. The evidence reflects that the Veteran's service-connected residuals of TBI with cognitive disorder may have worsened since he was last examined by VA in August 2016 and/or that the August 2016 examination report does not adequately reflect the severity of his disability. For instance, the August 2016 examination report indicates that there was objective evidence of only mild impairment of memory, attention, concentration, or executive functions which resulted in mild functional impairment. However, the Veteran's VA treatment records dated since the August 2016 examination reflect that he has experienced severe/considerable memory and attention problems that have significantly interfered with his employment (see e.g., VA behavioral health outpatient progress notes dated in September 2016 and December 2016, a March 2017 VA mental health outpatient note, and a February 2018 VA behavioral health outpatient progress note). In light of the above information, the Veteran should be provided an opportunity to report for a new VA examination to ascertain the current severity and manifestations of any residuals of TBI with cognitive disorder that are separate and distinct from his service-connected PTSD. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Finger Lakes Healthcare System (dated to July 2020) and the Philadelphia Vista electronic records system (dated to January 2019). Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, the Veteran should be given another opportunity to submit the appropriate authorization form to allow VA to obtain his relevant treatment records from the Rochester Vet Center. The matter is REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for residuals of TBI, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for residuals of TBI from the Rochester Vet Center and any other sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran's outstanding VA treatment records from the VA Finger Lakes Healthcare System for the period since July 2020; the Philadelphia Vista electronic records system for the period since January 2019; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for all appropriate examinations to determine the current severity of his service-connected TBI and its residuals. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the clinician should provide an assessment of the current nature and severity of all residuals of the Veteran's service-connected TBI consistent with the schedular criteria for evaluating the residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. The clinician should specifically address the degree to which the service-connected disability is manifested by facets of cognitive impairment including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. For each such area of impairment identified, the clinician should opine whether it is at least as likely as not a symptom associated (in whole or in part) with the Veteran's service-connected TBI. The clinician should also identify all comorbid physical, neurological, or mental disorder(s) and state whether each is shown to be caused by the Veteran's TBI. If not, then, with respect to each comorbid disorder identified, the clinician should attempt to distinguish any symptoms and impairment attributable to such disability from the symptoms and impairment attributable to the identified TBI. If the manifestations cannot clearly be distinguished, the clinician should clearly so state. (CONTINUED ON NEXT PAGE) The clinician must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.