Citation Nr: 21067109 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-59 980 DATE: November 3, 2021 REMANDED Entitlement to an evaluation in excess of 40 percent for service-connected residuals, head injury with cognitive disorder, not otherwise specified, is remanded. Entitlement to an increased evaluation of post concussive headaches (previously evaluated as migraine headaches), which is currently 0 percent disabling is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran, who is the appellant, served on active duty from May 1985 to July 1985 and from February 1988 to August 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic claims file. In February 2020, the Board remanded the claims for further development. For the reasons discussed below, the Board finds that there has not been substantial compliance with the development sought as part of the February 2020 remand. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the record before the Board can reasonably be construed to include a request for a TDIU; however, the RO has not yet developed this claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. The Claims on Appeal are Remanded. When VA undertakes to provide a medical examination, it must ensure that the examination and opinions therein are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, a remand is necessary to ensure an adequate record with which the Board can make a decision. In July 2021, the Veteran underwent a VA TBI examination. Of note, the VA examiner diagnosed the Veteran with acute traumatic brain injury, resolved. However, the examiner indicated no diagnostic testing had been conducted since July 2010. Further, despite reporting memory issues, the examiner indicated there were no complaints of memory impairment. Given the deficiencies in the July 2021 examination a remand is necessary to allow for a fully informed decision. In a July 2021 individual unemployability statement, a VA examiner indicated that the Veteran's employment was affected by the service-connected headaches. The examiner further indicated that while the Veteran worked, she had a flexible schedule specifically to accommodate the headaches. The Veteran's claim for an increased evaluation for service-connected headaches is inextricably intertwined with the issues of an increased evaluation for the service-connected residuals, head injury which is being remanded for further adjudication. Specifically, the service-connected headaches are part of the residuals of the service-connected TBI. The issue of TDIU is intertwined with both the evaluation for the TBI and headaches. Therefore, a final decision on the issue of entitlement to a TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Contact the Veteran and her representative and ask them to provide sufficient information and necessary authorization in order to obtain copies of any outstanding records of treatment by non-VA health care providers for the service-connected residuals, head trauma and/or headaches. The letter should invite the Veteran and her representative to submit any pertinent medical evidence in support of the claims. If the Veteran or her representative provides the necessary information and authorizations, obtain any outstanding clinical records and incorporate them into the electronic claims file. (Continued on the next page) 2. Associate any outstanding VA treatment records with the electronic claims file. 3. After the above has been completed to the extent possible, the AOJ should arrange for the Veteran to be examined by a neurologist to assess the current severity of the head injury residuals. The entire record must be reviewed by the examiner in conjunction with the examination. If necessary, all appropriate tests and studies should be conducted, and the results reported in detail. If the examiner determines testing is unnecessary, please indicate the reason in the report. The examiner should comment on any restrictions on occupational and daily activity functions due to the head injury residuals. The examiner should include a rationale with all opinions. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.