Citation Nr: 21062704 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-37 347 DATE: October 12, 2021 REMANDED Entitlement to a rating higher than 30 percent for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2011 to August 2014. This appeal to the Board of Veterans' Appeals (Board) is from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in relevant part, granted service connection for post concussive headache and initially rated it as 0-percent disabling (so noncompensable) retroactively effective from August 2, 2014, so back to the day following the Veteran's discharge from service. The RO also granted service connection for TBI and rated it initially as 0-percent disabling, as well, from August 2, 2014. The Veteran contested those initial ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Another RO decision since issued in July 2017, during the pendency of this appeal, granted service connection additionally for PTSD and rated it initially as 30 percent disabling retroactively effective from January 30, 2017, the date of receipt of this additional claim. The RO also confirmed and continued the 0 percent rating already in effect for the post concussive headaches and recharacterized them as migraine headaches. In January 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board as to why a higher rating was warranted for the residuals of his TBI. A transcript of the hearing is of record. In May 2020, the Board remanded that claim back to the RO for further development and consideration including especially for a VA examination reassessing the severity of the TBI residuals. However, there has not been compliance, even acceptable substantial compliance, with the Board's remand directives, so the Board is again remanding this claim. Stegall v. West, 11 Vet. App. 268, 271 (1998) (a Board remand confers a right on a claimant to compliance with the remand order, as a matter of law). But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to a rating higher than 30 percent for PTSD with TBI is remanded. The Veteran testified during his hearing before this Board that his insomnia is partly due to having realistic nightmares and from simple inability to fall asleep. See January 2020 Board Hearing Transcript at page 9. Consequently, the Board's May 2020 remand directive instructed the VA examiner to reevaluate the Veteran and provide an opinion on whether he suffers from sleep impairment and/or memory loss that is not due to his PTSD (meaning that is not already being compensated by the 30 percent rating for this other service-connected disability under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411). In September 2020, to obtain this needed additional medical comment, the Veteran had a VA compensation examination. The VA examiner noted that the Veteran's TBI residuals had changed and that his current symptoms reflect a progression of the previous diagnosis. This VA examiner went on to explain that the Veteran has now developed headaches, memory issue, loss of balance, anxiety, depression, mood swings and speech problems. This VA examiner indicated it is not possible to differentiate the symptoms of the PTSD and TBI because the conditions cause some of the same or similar symptoms. The holding in Mittleider v. West, 11 Vet. App. 181 (1998), addresses situations when it is not possible to distinguish or differentiate symptoms attributable to a service-connected disability from those, instead, attributable to a disability that conversely is not service connected. However, here, both the PTSD and TBI are service-connected disabilities. In a September 2020 rating decision, on remand, and based on that VA examiner's assessment and inability to distinguish what measure of symptoms and impairment is attributable to the PTSD versus TBI, the RO combined the 0 percent rating for the TBI with the 30 percent rating for the PTSD as of September 22, 2020, the date of that VA contract examination on remand, in turn resulting in a "net" combined rating of 30 percent for this collective disability. So, this collective disability is now characterized as PTSD with TBI. The Veteran did not formally appeal the 30 percent rating initially assigned for his PTSD, but, as discussed, he did appeal the 0 percent rating initially assigned for his TBI and residuals. And because his disability since has been consolidated, so including both, his appeal now concerns the impairment that is attributable to both. His most recent PTSD evaluation was in July 2017, so more than 4 years ago, and he asserts that his symptoms since have worsened appreciably. During his hearing before this Board, he testified that he is now short-tempered and easily irritated, also aggressive. Consequently, the Board finds that another PTSD evaluation is needed reassessing the severity of this mental disorder, even though some other symptoms are indistinguishable in terms of whether owing to the PTSD or TBI. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). Accordingly, this claim is again REMANDED for the following still additional development and consideration: Schedule the Veteran for an appropriate VA examination or telehealth interview, if an in-person examination is not feasible, to reassess the severity of his PTSD (meaning in addition to the reassessment contract examinations he already had in September 2020, following the Board's prior remand, for his TBI residuals). All relevant evidence in the claims file must be made available to the examiner including a complete copy of this remand. All mental status testing and evaluation needed to reassess the severity of the PTSD and TBI under the applicable rating criteria must be completed. This includes, if possible, parceling out what extent of symptoms is due to the PTSD versus those, instead, attributable to the TBI and those that cannot be distinguished between the two conditions. *Thus, the examiner should consider the results of the Veteran's September 2020 VA contract examinations (headache, TBI, and cranial nerve) that he had following the Board's prior remand, so in addition to this more recent evaluation for PTSD. To this end, the examiner is specifically asked to address the following. (a) Identify the symptoms attributable to the Veteran's PTSD from those, instead, attributable to his TBI and those that are indistinguishable. (b) Also indicate whether there is: i) Poor sleep/insomnia; ii) Diminished concentration; iii) Diminished short-term memory; iv) Subjective impaired executive functioning due to reported inattention and slowed speed of information processing; v) speech impairment (stuttering) and; vi) mood lability along with anxiety and depression. Rationale for the assessment is essential, preferably citing to examination findings supporting conclusions and/or accepted medical authority. If the examiner cannot provide a response without resorting to mere speculation, he or she should expressly indicate this but, as importantly, provide explanation of why a response would require speculating. In other words, merely saying he/she cannot respond will not suffice. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Hamm, 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.