Citation Nr: 21065149 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 13-27 919 DATE: October 25, 2021 REMANDED Entitlement to a rating in excess of 10 percent for dementia secondary to a traumatic brain injury is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1978 to September 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In May 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In December 2017, March 2019, and November 2020, the Board remanded this claim to the Agency of Original Jurisdiction for additional action. 1. Entitlement to a rating in excess of 10 percent for dementia secondary to a traumatic brain injury is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to a rating in excess of 10 percent for dementia. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A (d); 38C.F.R. §3.159 (c)(4). In November 2020, the Board remanded the Veteran's claim to schedule an examination to determine the severity of dementia, related to a service-connected TBI. In an April 2021 VA psychiatric examination report, a VA psychologist stated that, for the VA established diagnosis of dementia, the diagnosis was changed, and it was the clinical cognitive assessment that those with suspected dementia should include examination of attention and concentration, orientation, short-term and long-term memory, praxis, language and executive function. As part of the assessment, formal cognitive testing should be undertaken using a standardized instrument. While the evaluator was unable to assess for dementia by a clinical interview, the Veteran appeared to present with symptoms of a psychotic disorder. The Veteran, through the representative, argues that the April 2021 examination is inadequate. The Board agrees and finds April 2021 VA mental disorders examination and report to be inadequate. The examiner explicitly stated that she was unable to assess the Veteran for dementia. Because the Veteran is asserting entitlement to an increased rating for dementia, the Board finds the opinion to be of little probative value because the examiner stated in the report that she was not qualified to assess the matter at hand. In addition, the examiner was a psychologist, and the remand requested examination by a psychiatrist, who is one the required specialties in traumatic brain injury cases. The Board finds that there has not been substantial compliance with the November 2020 remand instructions. The Veteran has not been provided an adequate examination in conjunction with the increased rating claim as requested. That is a pre-decisional duty to assist error. In a May 2021 addendum opinion, a different examiner found that it was less likely as not that adjustment disorder with depressed mood was due to the TBI as the reason for the diagnosis was responding to a death in the family. The examiner opined that it was less likely as not that the diagnosis of psychosis was due to the TBI. The unspecified psychotic disorder appeared to be due to dementia as with the decline of functioning from the dementia there was an observed psychosis. The TBI examiner did not feel that the TBI caused any dementia. Therefore the examiner stated that the dementia appeared to be age related. The examiner stated that, "A further VA examination was conducted on August 21, 2019. The examiner was asked to provide a medical opinion to determine current disability caused by your traumatic brain injury. The VA examination showed the diagnosis of unspecified psychotic disorder and adjustment disorder with depressed mood. The examiner reviewed the claims folder and provided the opinion that the unspecified psychotic disorder and adjustment disorder with depressed mood are less likely than not caused by the traumatic brain injury. The examiner found that the symptoms do not meet the criteria for a current diagnosis of dementia due to head trauma. The post-military mental health history is: Unknown." The examiner could not distinguish the dementia symptoms from the psychosis. There was symptom overlap in poor sleep, confusion, forgetfulness, poor thought processing, flat affect and loosening of associations. The May 2021 examiner also opined that the unspecified psychotic disorder appeared to be due to dementia, as with the decline of functioning from the dementia there was an observed psychosis. The unspecified psychotic disorder appeared to be secondary to the service-connected dementia. The May 2021 examiner stated that it was less likely as not (50 percent or greater probability) that any diagnosed nonservice-connected mental disorder had been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include TBI, headaches, and tinnitus. In the examination, the examiner stated that the adjustment disorder was due to a death and not due to any medical issues. It does not appear that the medical issues were contributing to the adjustment disorder. Regarding the unspecified psychotic disorder, the examiner stated that it appeared that was likely due to the dementia. The examiner stated that the TBI had not been observed to contribute to psychotic issues, nor did the headaches or tinnitus contribute to psychosis. The Veteran, through the representative, argues that the May 2021 examination is inadequate. The Board agrees and finds the May 2021 VA addendum opinion to be incomplete, as the examiner did not provide adequate rationale for the opinion. A mere conclusion without an underlying rationale is of no probative value. Miller v. West, 11 Vet. App. 345 (1998). In essence, the examiner stated that the Veteran's unspecified psychotic disorder was related to service-connected dementia because psychosis is related to dementia. The Board finds that rationale to be inadequate as the examiner did not properly explain what led to the opinion and cited no supporting evidence. It is unclear if the examiner reviewed the claims file. The examiner did not explain how the evidence related to the medical opinion and the examiner did not reconcile the opinion with previous opinions of record. The examiner simply offered a conclusory statement as rationale for the opinion. As the May 2021 VA examiner did not provide an adequate rationale, the opinion is incomplete. The Board also notes that because of the complex nature of the Veteran's disability, in the previous remand, the Board requested a psychiatrist perform the subsequent examination, as one of the specialists required in cases involving traumatic brain injury. The Remand further requested that examiner "should verify being a psychiatrist." The Veteran was scheduled for the requested examination. The resulting April 2021 and May 2021 examination reports indicate that the evaluations were performed by psychologists rather than the requested psychiatrist. Compliance with Board remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the requested actions were not completed and do not substantially comply with the November 2020 Board remand. The Veteran's record should be referred to a psychiatrist to determine the current severity of service-connected dementia. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Schedule the Veteran for a VA mental disorders examination, to be performed by a VA psychiatrist, to determine the nature and severity of dementia. The examiner must review the claims file and should note that review in the report. All necessary tests and studies should be accomplished, and complaints and clinical manifestations should be reported in detail. The examination report must include a complete rationale for all opinions expressed. The examiner should verify being a psychiatrist. The examiner should diagnose all mental disorders found. The examiner should opine as to the levels of occupational and social impairment due to the service-connected dementia and should describe the frequency and severity of the symptoms that cause those levels of impairment. To the extent possible, the examiner must explicitly find what symptoms can be allocated to the dementia disability, and what symptoms are due to any nonservice-connected diagnosed mental disabilities. If the examiner is unable to distinguish the symptomatology due to service-connected and nonservice-connected mental disorders, the examiner should so state. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed nonservice-connected mental disorder is related to service or any event, disease, or injury during service, to include TBI, headaches, and dementia. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed nonservice-connected mental disorder is due to or the result of the service-connected disabilities, to include TBI, dementia, headaches, and tinnitus. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed nonservice-connected mental disorder has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to include TBI, dementia, headaches, and tinnitus. The examiner should address the lay statements of record, including hearing testimony, regarding the Veteran's dementia and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and must not be based solely on a lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.