Citation Nr: 21070509 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-50 587 DATE: November 24, 2021 REMANDED Entitlement to an increased evaluation for current residuals of an in-service traumatic brain injury (TBI), currently rated as 40 percent disabling for seizures prior to August 18, 2021 and as 80 percent disabling since then, is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disorders (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1975 to March 1977. This case comes to the Board from a September 2016 decision of the Agency of Original Jurisdiction (AOJ), which granted service connection for psychomotor epilepsy due to traumatic brain injury (TBI) and assigned an initial 20 percent disability rating. In February 2021, the Veteran testified before the undersigned at a virtual hearing. A transcript of that hearing is of record. In June 2021, the Board remanded this case for further development. Fortunately for the Veteran, the AOJ substantially increased the rating assigned to his service-connected disability based on the new information obtained on remand. In August 2021, the AOJ increased the assigned 20 percent rating to 80 percent, effective August 18, 2021. In a separate decision, dated September 2021, the AOJ increased the 20 percent rating in effect prior to that date to 40 percent, effective January 20, 2015 and awarded a separate zero percent (noncompensable) rating for TBI pursuant to 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8045). Although these rulings are favorable to him, the Veteran has not indicated that he is satisfied with the amount of these increases, which means that his request for a higher rating remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Although the Board regrets the need for further delay, it is necessary to remand this case again. When the Board remands an appeal, the claimant obtains a right to compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the June 2021 remand, it was unclear whether the physician who performed the initial TBI examination in September 2015 was a physiatrist, psychiatrist, neurologist, or neurosurgeon. The Board therefore instructed the AOJ to arrange for the Veteran to be examined by one of these specialists. Unfortunately, the post-remand TBI examination report indicates that the examiner is a specialist in the field of occupational medicine. To ensure compliance with its June 2021 remand orders, the Board must remand this appeal for a new TBI examination. Following the Board's remand orders, the AOJ successfully obtained records from the Social Security Administration (SSA). According to the records, the SSA determined that the Veteran was unable to work due to a back disability which, according to statements submitted by the Veteran to the agency, was the result of an automobile accident caused by one of his service-connected seizures. Although the AOJ denied service connection for a back disability in October 2015, such a claim can be reopened based on new and material evidence, see 38 C.F.R. § 3.156(a), and the AOJ's earlier denial was based on a determination that the current back disability was not directly related to service. It appears that the decision did not consider whether the Veteran might be eligible for compensation for a back disorder as a secondary result of a separate service-connected disability pursuant to 38 C.F.R. § 3.310. Under 38 C.F.R. § 3.155(d)(2), "VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of a formally initiated claim for the proper evaluation level for the primary service-connected disability." Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021). As part of the post-remand examination, the AOJ should obtain an opinion from an appropriate medical professional addressing the possibility that the Veteran's current back disability is proximately due, the result of, or aggravated by the seizures associated with his service-connected TBI. Ratings for residuals of an in-service TBI event may be based on the facets of cognitive, emotional/behavioral, and physical dysfunction listed in DC 8045, but subjective symptoms of TBI may also be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.124a. For example, emotional or behavioral symptoms that have been clinically diagnosed may be evaluated under the schedule of ratings for mental disorders listed in 38 C.F.R. § 4.130. Although it was not required by the Board's remand orders, the AOJ arranged a mental disorders examination in September 2021. It was not necessarily wrong to treat the Veteran's anxiety disorder as part of his TBI increased rating claim because, in January 2018, the AOJ granted service connection for anxiety disorder based on a finding that the Veteran's anxiety disorder was "related to the service-connected disability of convulsive seizures with psychomotor epilepsy due to traumatic brain injury . . ." Unfortunately, the September 2021 mental disorders examination report is inadequate. According to examiner, the Veteran's pre-military social and family history was "unremarkable" and a substance abuse history was denied. But the post-service mental health treatment records consistently indicate that, because of physical abuse by his father, the Veteran ran away from home at the age of 12 to join the circus and that he has a long history of drug and alcohol abuse. An examination report may be inadequate if it rests on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Under these circumstances, the post-remand examinations for residuals of TBI should include a new mental illness examination. The appeal of the denial of a TDIU rating is inextricably intertwined with the increased rating claim because, if resolved in his favor, the increased rating claim could potentially affect whether the Veteran is eligible for a TDIU rating. The appropriate remedy when a pending claim is inextricably intertwined with an issue on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001); Henderson v. West, 12 Vet. App. 11, 20 (1998). The Board will remand the TDIU appeal pending the adjudication of the intertwined issue. The matters are REMANDED for the following action: 1. Schedule the Veteran for a TBI examination WHICH MUST BE CONDUCTED BY A PHYSIATRIST, PSYCHIATRIST, NEUROLOGIST, OR NEUROSURGEON to determine the current severity of his service-connected residuals of an in-service traumatic brain injury (TBI). The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. All indicated evaluations, studies, and tests should be accomplished and all findings reported in detail. As part of his or her report, the examiner should complete standard disability benefits questionnaires for TBI, for epilepsy and other seizure disorders, for mental disorders, and for headaches. 2. Schedule the Veteran for a thoracolumbar spine examination to determine the nature and etiology of any current disability of his back. The entire claims file must be made available to and be reviewed by the examiner, and it must be confirmed that such records were available for review. All indicated evaluations, studies, and tests should be accomplished and all findings reported in detail. After completing the requested records review and in-person examination, the examiner should indicate whether it is at least as likely as not (50 percent or more probability) that any current disability of the back was proximately due to, the result of, or aggravated by the Veteran's seizures. The examiner should provide a complete rationale thoroughly explaining the reasons for his or her opinion. The rationale should address the records received from the Social Security Administration, which indicate that the Veteran's back disability was the result of a car accident and that the car accident happened because the Veteran experienced a seizure while driving. 3. The AOJ must ensure that the examination reports and opinions comply with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.