Citation Nr: 21061604 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-02 076 DATE: October 4, 2021 REMANDED Entitlement to an initial compensable rating for residuals of a traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2005 to February 2010. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) regional office, the agency of original jurisdiction (AOJ). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2020; a transcript of the hearing is of record. Procedural History In March 2020, the Board remanded the Veteran's claim for further development, to include providing the Veteran with a new VA examination. See Board remand dated March 13, 2020. The Veteran was afforded a VA examination in October 2020. However, in March 2021, the Board found the examination inadequate and remanded the claim to ensure compliance with its remand directives. The Veteran was afforded a new VA TBI examination in May 2021 and the examination report and a May 2021 addendum to that report have been associated with the electronic claims file. In a May 2021 rating decision, the AOJ combined the Veteran's TBI and PTSD disabilities for rating purposes, and assigned a 50 percent evaluation, effective February 7, 2010. The AOJ's issuance of the May 2021 rating decision was premature as the Board finds there has not been substantial compliance with its March 2021 remand directives arising from deficiencies in the May 2021 VA TBI examination and addendum thereto. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). Procedural Due Process VA regulations provide for a 30 day period for claimants to respond to a Supplemental Statement of the Case (SSOC) and extensions beyond 30 days may be granted by the AOJ for good cause. 38 C.F.R. §§ 19.52(c), 19.53 (2020). In June 2021, the Veteran requested additional time to respond to the May 2021 SSOC. See Veteran's correspondence and VA Form 20-10208 received June 23, 2021. Specifically, the Veteran requested additional time to prepare a statement describing the distinctions between his TBI and PTSD symptoms, although he did not specify the period of time needed. Id. However, the AOJ took no action regarding the Veteran's June 23, 2021 request for an extension and deprived him of the 30 day response period he is entitled to under 38 C.F.R. § 19.52(c) when it notified him less than 30 days after issuance of the SSOC that his appeal had been returned to the Board. See VA correspondence dated July 14, 2021. Accordingly, remand is necessary to protect the Veteran's due process rights by ensuring compliance with procedural safeguards under 38 C.F.R. § 19.52(c) and to address his pending request for an extension of time to submit lay evidence. 38 C.F.R. § 19.52(c); see Bernard v. Brown, 4 Vet. App. 384, 394 (1993). May 2021 VA Examination A Board remand confers on the claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Moreover, once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Despite the Board in its March 2021 remand having highlighted for review the Veteran's November 2020 eight-page, single-spaced statement describing TBI residual symptoms and their impact on him personally, his family, and his employment, the May 2021 VA examiner neither acknowledged nor discussed the November 2020 statement in the May 2021 examination report or the May 2021 addendum. This is suggestive that the examiner conducted a cursory review of the claims file, which renders the examination findings of no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.). As reflected in the May 2021 addendum, the VA examiner concluded that it "is not possible to describe the effects caused by the Veteran's TBI residuals." The explanation given was that the "suspected etiology of his deficits is multi-factorial, given his history of TBI and reported mental health, pain, and sleep issues," findings the examiner said were taken "from speech pathology notes/evidence which were reviewed." However, the examiner's statements are in the context of findings made during treatment, not in the context of independent findings by the examiner on the basis of a review of the Veteran's medical records. Evidence, which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Moreover, the examiner's remarks are inconsistent with objective and lay information regarding the Veteran's PTSD and TBI symptoms in the context of his personal, family, and professional life, including the Veteran's November 2020 statement. For the foregoing reasons, the May 2021 VA TBI examination and addendum are inadequate. See Barr, supra. Accordingly, remand is necessary to provide the Veteran with a new VA examination consistent with the Board's directives set forth below. See Barr, supra; Stegall, supra. The matter is REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Reply to the Veteran's June 2021 request for a post-SSOC extension of time to submit additional evidence and associated Document Evidence Submission (VA Form 20-10208). Provide no fewer than 30 days for reply from the Veteran or his representative. See 38 C.F.R. § 19.52(c). 2. Then, schedule the Veteran for another VA examination by an appropriately qualified VA examiner, OTHER THAN the examiner who conducted the May 2021 VA TBI examination if possible, to assess the current severity of the Veteran's TBI residuals. The Veteran's record should be reviewed by the examiner. All appropriate tests and studies should be conducted, and the results reported in detail. The report should include all subjective complaints and objective symptoms. * The examiner's review of the body of this Remand, as well as the Board's March 2020 and March 2021 remands, is strongly recommended to assist in avoiding errors that have rendered previous VA TBI examinations inadequate. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Differentiate which symptoms or which portion of the Veteran's impairment is attributable to his service-connected TBI residuals and to his service-connected PTSD disability. In accomplishing the foregoing, thoroughly review the Veteran's lay statements of record, including the statement received in November 2020, describing his TBI residual symptoms and their impact on him personally, his family, and his employment (see VBMS entry with document type "Correspondence," receipt date 11/24/2020). If the examiner concludes that differentiation of TBI residuals and PTSD symptoms cannot be provided without resorting to mere speculation, the examiner shall explain in detail why this is so. (b) In addition to objective test results, the examiner should describe the practical effects caused by the Veteran's TBI residuals, including the effect of his disability on his occupational and daily functioning, considering evidence of record, including the Veteran's lay statements. If the examiner concludes that such description cannot be provided without resorting to mere speculation, the examiner shall explain in detail why this is so. Although the examiner must review the entire claims file, the examiner is requested to consider the following potentially relevant evidence, which is identified by VBMS labels and receipt dates in parenthesis. * VA speech pathology note dated April 29, 2016, including TEA results (see VBMS entry with document type "Medical Treatment Record -Government Facility," receipt date 02/06/2020, at page 191); * VA speech pathology note dated May 23, 2016, including RBMT-3 results (see VBMS entry with document type "CAPRI," receipt date 12/22/2016, at page 11); * VA speech pathology note dated October 2, 2019, including diagnosis of reduced memory and RBMT-3 results administered on September 23, 2019 (see VBMS entry with document type "Medical Treatment Record - Government Facility," receipt date 11/24/2020, at page 71); * Veteran's statement received November 24, 2020 describing TBI residual symptoms and their impact on his personal, family, and employment (see VBMS entry with document type "Correspondence," receipt date 11/24/2020); and * Additional evidence submitted by the Veteran regarding his TBI and PTSD symptoms. * The Board's reference to evidence in this context should not be construed as a determination of its credibility. The examiner must provide a complete rationale for all opinions proffered. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.