Citation Nr: 21071220
Decision Date: 11/30/21	Archive Date: 11/30/21

DOCKET NO. 18-50 971
DATE: November 30, 2021

REMANDED

Entitlement to an initial rating in excess of 10 percent for traumatic brain injury (TBI) with vertigo is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 1980 to January 1983.

This appeal comes to the Board of Veterans' Appeals (Board) from a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record.

In a July 2021 statement from the Veteran's representative, he stated that the Veteran was unemployed due to residuals of his TBI. Therefore, the Board has assumed jurisdiction over the issue of entitlement to a TDIU as part and parcel of the Veteran's initial rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009).

1. Entitlement to an initial rating in excess of 10 percent for TBI with vertigo.

The Veteran contends a higher rating is warranted for his residuals of TBI. The record reveals that he last underwent a TBI VA examination in January 2017. 

However, a July 2021 statement from the Veteran's representative states that the Veteran has significant symptoms of TBI residuals, including signs of Meniere's Disease and migraines. He further reported that the Veteran has difficulty sleeping with only 2 hours per night, dizziness/vertigo lasting 1 to 2 minutes daily with occasional falling down and staggering when off medication, and migraine headaches multiple times a day. In light of the foregoing, and the length of time since the last VA examination, the Board concludes that the current medical evidence is inadequate for determining the current severity of the Veteran's residuals of TBI. Thus, he should be afforded a new VA examination to determine the current nature and severity of his service connected TBI. See Snuffer v. Gober, 10 Vet. App. 400 (1997).

2. Entitlement to a TDIU.

As indicated in the Introduction, the issue of entitlement to TDIU has been raised in connection with the Veteran's claim for increased ratings for his disability. As such, on remand, the Veteran should be provided Veterans Claims Assistance Act of 2000 (VCAA) notice regarding the information and evidence necessary to substantiate a TDIU and be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).

The matters are REMANDED for the following actions:

1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his TDIU claim. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability).

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected TBI residuals. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and impairment due to the TBI residuals alone.

The examiner should also specifically discuss the effect of the Veteran's TBI residuals on any occupational functioning and activities of daily living.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Brennae L. Brooks, 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.