Citation Nr: 21068189 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 18-24 390 DATE: November 9, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to an initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. REMAND Entitlement to service connection for residuals of traumatic brain injury, to include headaches, is remanded. FINDINGS OF FACT 1. The weight of competent, credible, and probative evidence does not show that the Veteran's left knee disability first manifested in service or was caused by any aspect of his military service. 2. The weight of competent, credible, and probative evidence does not show that the Veteran's right knee disability first manifested in service or was caused by any aspect of his military service. 3. With resolution of doubt in the favor of the Veteran, the initial severity of the Veteran's PTSD manifested as occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee condition are not met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 2. The criteria for service connection for a right knee condition are not met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1153, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 3. The criteria for an initial rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a commissioned officer in the United States Army from October 1965 to December 1970 including service in the Republic of Vietnam. He was awarded the Bronze Star with "V" and Purple Heart Medals, Combat Infantryman's Badge, and Parachutist Badge. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021 the Veteran testified before the undersigned Veterans Law Judge. The transcript of the hearing has been associated with the claims file. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Laypersons, such as the Veteran, are competent to report on matters observed or within his or her personal knowledge, to include the occurrence of injury, and as to the nature, onset, and continuity of symptoms experienced or observed. See 38 C.F.R. § 3.159(a)(2); Charles v. Principi, 16 Vet. App. 370 (2002). Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board, however, retains the discretion to determine the credibility and probative value of all evidence of record, including lay evidence. See Buchanan, supra. In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Entitlement to service connection for a left knee disability Entitlement to service connection for a right knee disability The Veteran contends that he has left and right knee disabilities due to his military service. Service treatment records show that in March 1966, the Veteran sought treatment for an injury to an unspecified knee during escape and evasion training. He was issued medication and advised that he try to "work it out." Three days later he reported that his thigh was better but that he continued to have shin pain. There was no further follow up. In September 1967, the Veteran was treated for a fracture of the left fibula and was provided a cast for three weeks. There was no mention of knee joint trauma or damage. In a November 1970 discharge medical history questionnaire, the Veteran reported the history of the broken bone in the left leg but denied any "trick or locked knee," lameness, or other bone or joint deformity. In the Veteran's November 1970 separation report of medical examination his knees were found to be normal, and the Veteran stated, "I am in excellent health." Post service, the first indication of a right or left knee disorder comes in a claim for service connection for his bilateral knees in December 2013. A VA examination was provided in January 2015. Regarding the Veteran's left knee, the Veteran reported falling down a hill and being treated by an Army doctor in 1969 while in Vietnam, as well as being grazed by a bullet. He stated that pain continued after service and that he used alcohol to self-medicate. For his right knee, the Veteran reported injuring his knee jumping out of an aircraft in 1967. He stated that he did not receive treatment, and that pain has been on and off since then. The VA examiner opined that the Veteran's left and right knee disorders were less likely than not due to his military service. In reaching this conclusion, the examiner wrote: "The Veteran has documentation in the service on March 14th, 1966 of a knee injury (side not specified). The notes state "injury to knee on an escape and invasion course". On his discharge "exit exam" on Nov 20th, 1970, he stated he was in excellent health. He also engaged in activities that are known to damage the knees such as a ski patroller. There has been no further complains or treatments in the records for any knee condition since this time." See January 2015 C&P Exam. The RO denied the Veteran's claim in February 2015 and the Veteran submitted a notice of disagreement (NOD) in February 2016, in which he reiterated the claims of in-service injuries. A statement of the case (SOC) was provided in February 2018 and the Veteran perfected his appeal via VA Form 9 in May 2018. There, he requested a hearing before a VLJ. The Veteran testified during a hearing before the undersigned VLJ in July 2021. The Veteran's representative was under the mistaken belief that service connection had already been granted. The Veteran had been granted service connection for radiculopathy of both lower extremities caused by a lumbar spine disability. The undersigned informed the Veteran that the issue before the Board was that of service connection but that testimony could address the severity of the disorders. No testimony was provided on the onset or causes for the Veteran's left and right knee disorders. See July 2021 Hearing Transcript. However, the record was held open for 30 days to afford the opportunity to submit additional evidence. The Veteran's representative wrote to the Board and requested another hearing to be provided or for the opportunity to have the Veteran provide evidence. See July 2021 VA 21-4138. Then, in September 2021, the representative filed an appellate brief. There, it was written "the merits of these issues have been advanced; we have no further argument." See September 2021 Appellate Brief. As the Veteran's representative has made clear that no further arguments are to be made, the Veteran's claim is now properly before the Board. The Veteran has been diagnosed with left and right knee disorders during the appellate period, and as such the first element of service connection has been met. Furthermore, the Veteran's STRs shows one in-service knee injury, and the Veteran has provided credible testimony as to other injuries in service. This meets the criteria for the second element of service connection. The Board thus turns to the third element of service connection, a nexus between his current disabilities and his military service. Regarding the third element of service connection, the Board may not provide a nexus opinion, and neither the Veteran, nor his representative, has been shown to possess the requisite medical training or expertise to provide a competent opinion regarding the etiology of his back condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Jones v. West, 12 Vet. App. 383, 385 (1999) (where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue). As such, the Board turns to the medical evidence of record. There is a single probative nexus opinion of record, in the January 2015 VA examiner's opinion. The Board affords significant probative value to the findings of the January 2015 VA examiner, as the examiner conducted an in-person examination, reviewed the Veteran's medical records, considered the Veteran's lay statements, and provided a rationale based upon the record. Given that the Board has found the nexus opinion to have significant probative value, and as there is no competing positive nexus opinion, the claim must be denied. The Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Psychiatric disabilities other than eating disorders are rated pursuant to the criteria in the General Rating Formula. See 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a rating of 30 percent is assigned when the Veteran exhibits occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affected the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evidence considered in determining the level of impairment for psychiatric disorders under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the rating code. Disability ratings are assigned according to the manifestation of particular symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment from psychiatric disorder under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify "the level of occupational and social impairment caused by those signs and symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment." See also Mauerhan v. Principi, 16 Vet. App. 436 (2002) (holding that the list of symptoms in the disability rating schedule for psychiatric disabilities is not exhaustive); and see Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013) (holding that the disability rating schedule for psychiatric disabilities reflects "objectively-observable symptomatology," and "it is the severity of the effects of the symptoms as described by the examiner that determines the rating."). The key discussion in Bankhead bears revisiting, insofar as it posits suicidal ideation as an exceptional symptom, associated with a 70 percent rating: "Additionally, there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of 'active' suicidal ideation, 'passive' suicidal ideation, suicidal 'intent,' suicidal 'plan,' suicidal 'preparatory behavior,' hospitalization, or past suicide attempts). Thus, the language of the regulation indicates that the presence of suicidal ideation alone, that is, a Veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (2019). As the Veteran's case was certified to the Board after August 4, 2014, DSM-5 applies, and global assessment of functioning (GAF) scores are no longer used in evaluation of psychiatric disorder. Id. However, the examiner's discussion of symptoms associated with any assigned score would still be useful in evaluation of psychiatric disabilities. Entitlement to a rating in excess of 30 percent for PTSD The Veteran submitted a claim of service connection for PTSD in December 2013. In January 2015 a VA examination was provided. The Veteran was diagnosed with PTSD and residuals of a TBI, with the TBI being designated "mild" and the Veteran's symptoms were associated with PTSD. The Veteran's employment history was noted to be as follows: The Veteran entered the United States Army in 1965 and served until 1970, with one tour of duty in Vietnam. After this tour, his officer evaluations showed poor performance with comments regarding immaturity and failure to exercise leadership. After discharge the Veteran has had approximately 15 different jobs. For the first 12 years after service the Veteran experienced substance abuse. After ceasing drinking, the Veteran last worked as the Corporate Director of Safety for a hardware chain, a position he held for 5 years. The Veteran stated that he last worked in 2010 and attempted to find employment but was unable to because "nobody wants me because I'm too old." See January 2015 C&P Exam, p. 4. Upon examination, the Veteran's symptoms were found to include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss and difficulty adapting to stressful circumstances. Id at 7. No suicidal ideation was found. The VA examiner opined that the Veteran's PTSD caused "occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." Id at 2. In February 2015 the RO granted service connection for PTSD and assigned an initial 30 percent rating. The Veteran submitted a timely notice of disagreement (NOD) in February 2016. In August 2017 the Veteran denied suicidal ideations "adamantly and emphatically" when speaking with a mental health professional. The Veteran endorsed feelings of helplessness and hopelessness, as well as feeling challenged. But he stated that he had "multiple stable, compelling protective factors in place", namely his children, spouse and faith. See August 2020 CAPRI, p. 1. A Statement of the Case (SOC) was provided in February 2018 and in May 2018 the Veteran perfected his appeal via VA Form 9, in which he requested a hearing before a VLJ. In August 2020 the Veteran's wife wrote to VA. She stated that she has been married to the Veteran for 19 years and that she worked as a registered nurse treating major trauma at a hospital. Regarding the Veteran's PTSD, she wrote of how the Veteran had "episodes of anger and sometimes rage which come out nowhere" that includes yelling at her as well as throwing objects. She also wrote of the Veteran's suicidal ideations and failed suicide attempt before she met him, and of his current night terrors. See August 2020 Buddy / Lay Statement. She did not write about the causes for these suicidal ideations. The Veteran's treating physician wrote to VA in August 2020. The physician reported that the Veteran had symptoms of anxiety, anger, depression and suicidal ideation. See December 2020 Medical Treatment Record Non Government Facility. A second VA examination was provided in February 2021. There, the Veteran denied substance abuse problems, stating that he had been "clean and sober for 39 years in October." See February 2021 C&P Exam, p. 6. The Veteran's symptoms were found to be: "depressed mood, anxiety, sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships." Id at 9. No suicidal ideation was found. The VA examiner opined that the Veteran's PTSD manifested as "occupational and social impairment with reduced reliability and productivity." Id at 3. A hearing before the undersigned VLJ was then provided in July 2021. The Veteran reported that he had undergone mental health treatment two years earlier but not since moving to his current location and was not taking any medication. The Veteran testified as to feelings of anxiety and hypervigilance. He stated that he approached all tasks, such as where to go for dinner, as if though someone could die if he made the wrong decision. He further stated that he has to sit with his back to a wall and scan the tree line for snipers when going outside, despite intellectually knowing that he is safe. Occupationally, the Veteran reported that he has lost jobs due to his PTSD, as he would be too "intense" and had a habit of quitting jobs if he could that there was anything, he considered to be dishonorable. When asked what sort of employment he had, the Veteran stated that he had been a pilot, a flight instructor, a regional carrier, a corporate pilot and a director of safety. Socially, the Veteran stated that he was on his 5th marriage due to his PTSD symptoms. Furthermore, the Veteran testified that he found it difficult to join organizations but had recently become a Free Mason. He found it hard to participate in events and nearly quite of a minor event. See July 2021 Hearing Transcript. The Veteran reported one suicide attempt 40 years in the past and had therapy that showed him ways to "work around" the feelings that were successful. He stated that he had daily thoughts about suicide, but the "escape hatches" that he was taught worked and that he was not going to act on them and said that he did not need anyone contacted or that he needed any help. Id at 10. A review of the Veteran's medical records shows that the Veteran took part in mental health treatment from March 2018 to March 2019 and had a 40 minute phone call regarding his mental health symptoms in May 2019. Veteran's treating physician wrote that the Veteran had one sister and two children that he had good relationships with, and that he was a retired Risk Manager. The Veteran's symptoms were said to be flashbacks, nightmares, guilt, fear, anger, panic attacks, rumination, hypervigilance, anxiety, depression. See December 2020 Medical Treatment Record Non Government Facility, see also November 2020 CAPRI. In the course of seeking treatment, the Veteran has reported "a lot of anger, low frustration tolerance, feeling on the ragged edge a lot of the time." The Veteran further found that his symptoms became more noticeable after retiring, to include an inability to distract himself." See August 2020 CAPRI, p. 66. The Veteran's claim is now before the Board. A thorough review of the record shows that the Veteran's symptoms include disturbances of motivation and mood, anxiety, depression, hypervigilance, anger, sleep impairment, and memory loss. The record does not show that the Veteran's symptoms include flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; or impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; or impaired abstract thinking. The record is inconsistent regarding suicidal ideation, with the Veteran reporting thoughts of suicide at his hearing before the Board and his wife writing of the Veteran having suicidal ideation. However, the Veteran has denied suicidal ideations "emphatically and convincingly" while receiving mental health treatment, was found not to have suicidal ideations at his VA examinations. In Bankhead, citing from various sources, the Court first looked at how the term "suicidal ideation" is defined. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Court summed it up stating that "both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Id. at 20. In applying the meaning of suicidal ideation to the rating criteria, the Court noted that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. There are no analogues at the lower evaluation levels and there are no descriptors, modifiers or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "preparatory behavior," hospitalization, or past suicide attempts). Id. Thus, the Court found "the language of the regulation indicates that the presence of suicidal ideation, alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Id. (emphasis added). The Court then turned to the specifics of the case in Bankhead. The Court found that, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. Id. at 20. The Court found that the Board erroneously grafted the risk of self-harm onto the symptom of suicidal ideation in the criteria for a 70 percent evaluation. In other words, a Veteran need not be at a risk, whether a high or low risk, of self-harm to establish the criteria of suicidal ideation. Id. at 20-21. The Court also found that the Board erred in applying "hospitalization" as the standard for assessing the severity of that symptom. Id. at 21. Rather, the evaluation of mental disorders requires consideration of the effects of each of the Veteran's mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. (emphasis added) Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. The question before the Board is, given the Veteran's symptoms, to include inconsistent reporting of passive suicidal ideation, whether these symptoms cause occupational and social impairment with deficiencies in most areas. The Board has considered how the Veteran's service-connected PTSD has affected his ability to establish and maintain effective social relationships. Although the Veteran has does not socialize freely and has suffered marital hardships due to his PTSD, he does maintain family relationships and is able to leave the home when desired. Furthermore, the record shows that the Veteran has been able to maintain friendships outside of his family, though these relationships have not been reported on in detail. See August 2020 CAPRI, pp. 24, 40, 66, 79. However, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The record shows that the Veteran last worked for 5 years as the Corporate Director of Safety for a hardware chain, and that he retired from this position. The Veteran has reported that his PTSD caused issues at work throughout his professional career, as he quit numerous jobs because of perceived slights or dishonorable behavior from his supervisors, and that he could not connect with his co-workers due to his intensity. The Board notes that in January 2015 the VA examiner found there to be occupational and social impairment due to PTSD, while in February 2021 the VA examiner found there to be occupational and social impairment with reduced reliability and productivity. The Board grants an initial disability rating of 50 percent. The record shows that the Veteran has had disturbances of motivation and mood, anxiety, depression, hypervigilance, anger, sleep impairment, and memory loss, with inconsistent reporting of suicidal ideation. Based upon the medical and lay evidence of record, the Board finds that the Veteran's PTSD has caused occupational and social impairment with reduced reliability and productivity. A weight of competent and credible evidence is against a finding for a rating in excess of 50 percent. The Veteran has been consistently observed as having normal thought process and behavior, normal personal hygiene and regular speech. The Veteran has not been shown to have near continuous panic or depression, impaired impulse control, or deficiencies in most areas. The Board notes that the Veteran has been shown to have close relationships with his family, maintains friendships and has become a Free Mason. Furthermore, the record does not show that the Veteran has had an inability to adapt to stressful circumstances in a work or worklike setting, as evidenced by his careers as a pilot and as a Corporate Director of Safety, without evidence of deficiencies in his work. Regarding suicidal ideations, the Board finds that the Veteran's reporting of these ideations warrants low credible weight because of inconsistency, denying the ideations when under medical care and examination and expressing them to adjudicators in the context of claims for benefits. More importantly, there is insufficient evidence that the ideations, even if experienced, imposed any social or occupational impairment. Even though the Veteran changed jobs often because of a lack of anger control and ability to get along with others, he held job such as pilot and safety officer inconsistent with a person with suicidal ideations. The ideations were not of the severity and frequency to cause impairment in functional areas. Therefore, a rating in excess of 50 percent is not warranted at any point in the appellate period. The Veteran has raised the issue of unemployability because of his mental health disability, but as noted below, he has a pending appeal for additional compensation for residuals of a TBI. The Board will defer addressing eligibility for a total disability rating based on individual unemployability pending the resolution of that appeal which is remanded below. REASONS FOR REMAND Entitlement to service connection for TBI to include headaches Service treatment and personnel records confirm that the Veteran experienced trauma to the head when attempting to quell a disturbance at a barracks at an Army post (non-combat). He was treated for an ear laceration with no mention of a loss of consciousness. There were also multiple encounters for treatment for headaches before this incident. In December 2013, the Veteran submitted a claim of service connection for TBI. A VA examination was provided in January 2015. The Veteran was diagnosed with tension headaches and the VA examiner acknowledged a TBI in service. The VA examiner found that, on a direct basis, the Veteran's current symptoms of headaches were more likely than not due to a history of prior concussions in 1960 and 1961, rather than his traumatic brain injury in June 1970. See January 2015 C&P Exam, p. 18. The VA examiner did not opine as towards whether the Veteran's headaches were aggravated by his in-service TBI, and as such the examination is inadequate for adjudication. In August 2021, a private physician wrote to VA and noted that he had treated the Veteran since June 2019 and examined him on August 2021 for post-concussion syndrome cognitive deficits due to the head trauma 50 years ago. He wrote his belief that the Veteran's chronic headache pain was connected to the Veteran's service-connected PTSD. See August 2021 Medical Treatment Record Non Government Facility. The Board finds that the private physician's letter is inadequate as a nexus opinion, as the private physician did not opine whether the Veteran had a headache condition that was secondary to his service-connected PTSD, nor whether headaches were part of his PTSD, and he did not provide a rationale that might adequately explain the connection. However, the letter is sufficient to trigger VA's duty to assist in obtaining a new examination. As such, a remand is required to determine whether the Veteran has a headache disorder due to an in-service head injury, whether he had a pre-existing head injury that was aggravated by his in-service head injury, and whether the Veteran has from a headache disorder that is secondary to his service-connected PTSD or whether he suffers from headaches as symptoms of his PTSD. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination and request an assessment from an appropriate physician as to the etiology of the Veteran's TBI and headache condition. The physician should first determine whether the Veteran has either residuals of TBI or a headache condition that is separate from his current service-connected PTSD. If so, the physician should opine whether it is as likely as not (50 percent possibility) that the Veteran's condition was caused by his service-connected PTSD, or was aggravated by either the Veteran's head injury in service or his service-connected PTSD. The examiner should comment on the report of the private physician dated August 9, 2021 and the observations of the VA psychologist in the February 2021 mental health examination. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Abels, 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.