Citation Nr: 21067302 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-31 416 DATE: November 3, 2021 ORDER Reconsideration of the prior claim for service connection for a psychiatric disorder is granted. An initial rating in excess of 10 percent for traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a psychiatric disorder is remanded. Entitlement to a compensable rating prior to March 19, 2018, for status-post nasal fracture is remanded. Entitlement to a rating in excess of 10 percent from March 19, 2018, for status-post nasal fracture is remanded. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to an initial compensable rating for a headache disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A June 2002 rating decision denied a claim for service connection for a psychiatric disorder; the subsequently received evidence includes relevant service records. 2. The TBI has not resulted in higher than level 1 impairment in any facet for rating TBI. CONCLUSIONS OF LAW 1. The criteria for reconsidering the prior denial of the claim for service connection for psychiatric disorder have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for an initial rating in excess of 10 percent for TBI have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a Diagnostic Code 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1991 to November 1995. In November 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. Reconsideration Generally, a claim that has been denied in an unappealed decision may not be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156 (c)(1). Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156 (c)(2). Claims for service connection for a psychiatric disorder were previously denied, most recently in a June 2002 rating decision. The claims were denied because the record did not include probative evidence of a nexus between a post-service diagnosis and service. At the time of the prior denials, the record included a May 1999 history (provided during a VA mental disorder examination) of inpatient treatment at a specific VA medical facility in "August or July following his discharge." The Veteran subsequently reported treatment at an Army medical center in 1994 or 1995 and treatment at the VA medical center in 1998. In response to the histories, VA requested clinical records from the Army medical center from 1994 to December 1995 and requested records from the VA medical facility dated from 1998. In April 2015, VA obtained records from the Social Security Administration (SSA). These records included an August 1995 psychology service consultation from the VA medical facility which reveals an in-service diagnosis of psychosis disorder not otherwise specified. This record existed at the time of the prior denials and could have been obtained had it been requested by VA, and it provides relevant evidence for the claim. Notably, although the record includes some discrepancies, the Board finds the Veteran had provided adequate information based on which the record could be obtained. The Board acknowledges that a VA inpatient record is not an official service department record, i.e., an Army record. It is an in-service record, however, and it is related to a claimed in-service event, injury, or disease and was provided by an "official source," VA. Resolving all doubt in favor of the Veteran, the Board finds the criteria for reconsidering the prior denial have been met. Increased Rating The Veteran's TBI is rated under 38 C.F.R. § 4.124a Diagnostic Code 8045. Diagnostic Code 8045 provides that there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. The table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, labeled "total." A 100 percent evaluation is to be assigned if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," the overall percentage evaluation assigned is based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, a 70 percent evaluation is assigned if 3 is the highest level of evaluation for any facet. There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation based on the same manifestations cannot be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions is to be assigned. However, if the manifestations are clearly separable, separate evaluations are assigned for each condition. See 38 C.F.R. § 4.124a Diagnostic Code 8045, Note (1). The Board finds the Veteran's service-connected TBI does not warrant a rating in excess of 10 percent under Diagnostic Code 8045. The evidence does not show that the Veteran warrants a level 2 or higher for any of the facets for rating TBI, as required for a higher rating. An August 2015 VA examination record reveals the examiner's determination that judgment, motor activity, consciousness, and visual spatial orientation were normal, social interaction was routinely appropriate, and orientation was always oriented to person, place, time, and situation. There were no neurobehavioral effects, and the Veteran was able to communicate by spoken and written language and/or comprehend spoken and written language. The examiner stated that there was a complaint of mild memory loss without objective evidence on testing. The examiner reported inability to determine if the subjective concentration problems were due to TBI or long term marijuana use/mental health issues. There were subjective symptoms of headaches, which are rated separately. The report reveals findings corresponding to at highest a level 1 impairment in any facet for rating TBI. An April 2018 VA examination record reveals normal histories or findings for "memory, attention, concentration, executive function," judgment, social interaction, orientation, motor activity, visual spatial orientation, communication, and consciousness. There were no subjective symptoms. The examiner determined the Veteran had one or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. The report reveals findings corresponding to at highest a level 1 impairment in any facet for rating TBI. In the absence of probative evidence that the TBI has resulted in impairment more nearly approximating a level 2 or higher for any facet, a higher rating is not warranted. The Board further finds a separate rating is not warranted during this period. The record indicates that a service connection was separately awarded for posttraumatic headaches, and the record is absent probative evidence of another disorder that is secondary to the TBI. REASONS FOR REMAND 1. Service connection for a psychiatric disorder The Board finds an addendum opinion should be obtained from the April 2018 VA examiner to determine whether the findings are altered by review of the August 1995 psychological consultation record. The examiner should also provide additional information for the rationale that the Veteran did not have a mood disorder, with consideration of the diagnoses of mood disorder due to the 2017 nasal surgery. 2. Increased rating for status-post nasal fracture The Board finds the record would benefit if additional medical evidence were obtained to determine whether the 2017 surgery, and pre-surgery disfigurement, are related to the in-service nasal fracture. Although the record includes a July 2017 VA examiner's determination that the surgery was due to the in-service deviated septum, the examiner relies on the Veteran's history of no post-service injuries to the nose, which is contradicted by the record. 3. Increased rating for a thoracolumbar spine disability is remanded. 4. Increased rating for a headache disability is remanded. The Veteran should be afforded another VA examination based on the Veteran's testimony that the disabilities have increased in severity since the previous examination. 5. TDIU The claim for a TDIU is intertwined with the issues remanded herein. The matters are REMANDED for the following action: 1. Provide the claims file to the April 2018 VA examiner or another suitable medical professional if the April 2018 VA examiner is not available. The clinician must review the August 1995 VA inpatient treatment record and state whether it changes the previously provided opinion. The clinician must also provide an additional opinion on whether the Veteran has a mood disorder due to the 2017 nasal surgery. The rationale for all opinions expressed must be provided. If the clinician is unable to provide any required opinion, the clinician should explain why. If the clinician cannot provide an opinion without resorting to mere speculation, a complete explanation as to why this is so should be provided. If the inability to provide a more definitive opinion is the result of a need for additional information, the additional information that is needed should be identified. 2. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected status-post nasal fracture. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Ensure that the examiner provides all information required for rating purposes. The examiner should clarify whether the in-service nasal injuries resulted in obvious disfigurement and whether they resulted in need for the 2017 surgery. A rationale must be provided, with consideration of the June 1992 maxillary sinus medial wall fracture, the July 1992 treatment records (indicating that the June nasal fracture was reset at the time of initial treatment), the July 2015 VA examination, the 2017 VA otolaryngology treatment records, and July 2017 and April 2018 VA examination records. 3. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected headache disability. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Ensure that the examiner provides all information required for rating purposes. 4. Afford the Veteran a VA examination to determine the current degree of severity of the service-connected lumbar spine disability. All studies, tests, and evaluations deemed necessary by the examiner should be performed. Ensure that the examiner provides all information required for rating purposes, including ranges of active and passive motion and with and without weight-bearing and including pursuant to the "new" rating criteria (effective February 7, 2021). The examiner must describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. It is insufficient to conclude that the requested opinion cannot be rendered without resorting to speculation based solely on the fact that the VA examinations were not performed during a flare-up. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Snyder, 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.