Citation Nr: 21074827 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-21 305 DATE: December 16, 2021 REMANDED Entitlement to a rating higher than 50 percent for the service-connected posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to April 1969. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a July 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Unfortunately, during the pendency of the appeal, the Veteran died in May 2013. The Appellant submitted a request for substitution upon death of the Veteran in June 2013, which was approved. See May 2014 SOC and February 2018 Board decision. In August 2017, the Appellant testified before the undersigned Veterans Law Judge (VLJ) via videoconference hearing. A copy of the hearing transcript is of record and has been reviewed. This matter was previously before the Board in February 2018 and June 2020. The Board adjudicated the claim in June 2020, granting a 50 percent rating, but no higher, for the PTSD, denying a rating higher than 40 percent for hepatitis C, and denying a rating higher than 10 percent for the tinea pedis and onychomycosis of the feet. The Appellant timely appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In February 2021, the Appellant and VA filed a joint motion for partial remand (JMPR), which was approved by the Court. The Court dismissed the appeal as to the increased rating claims for hepatitis C and the tinea pedis with onychomycosis disabilities, and these issues are not before the Board. The Court also set aside the June 2020 Board denial of a rating higher than 50 percent for the PTSD and remanded the claim for further appellate consideration. This matter now comes again before the Board for further appellate consideration. The Board previously found that entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) had not been raised by the Appellant or the record. The Appellant appealed this finding to the Court, and per the February 2021 JMPR, the Court also set this finding aside. Although not raised by the Appellant or the record prior to the June 2020 decision, the Appellant has now submitted a VA Form 21-8940 and a July 2021 private medical opinion in support of a TDIU, which is part and parcel of the underlying increased rating claim on appeal. Therefore, as reflected above, the issue of entitlement to a TDIU has been added to the claim. 1. Entitlement to a rating higher than 50 percent for the service-connected PTSD is remanded. After the claim was remanded, the Appellant submitted a September 2021 private medical opinion from Dr. S.H., a psychologist. Because the Veteran died in May 2013, Dr. S.H.'s opinion was based on a review of the claims file and a telephone interview with the Appellant. Dr. S.H. did not have an opportunity interview or examine the Veteran directly. Dr. S.H. noted the Veteran reported nightmares in a January 2011 VA treatment record. The Appellant indicated that the Veteran experienced nightmares up to four times per week. He talked in his sleep about his combat experiences, and the Appellant frequently woke the Veteran from sleep to reorient him to the present. Dr. S.H. cited a February 2011 VA treatment record to support that the Veteran felt tired and had little energy nearly every day due to his poor sleep quality. Dr. S.H. noted the Veteran struggled with severe flashbacks, during which he believed he was in combat. The Appellant recalled several instances where the Veteran acted as if he were back in the war. A specific example was that Appellant reported she would find him crouching in a dark room asking where he was. In the August 2017 Board hearing, the Appellant also testified that "it was like he was stuck in a time warp." If something reminded of his wartime experiences, the Veteran would become upset, and the Appellant had to calm him down. She also had to announce herself when entering a room to minimize the Veteran's hypervigilant response. Dr. S.H. reported the June 2012 VA PTSD examination findings, including recurrent recollections of the event, intense psychological distress at exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event, physiological reactivity on exposure to internal or external cues that symbolized or resembled an aspect of the traumatic event, avoidance of thought and feelings associated with the trauma, as well as avoidance of activities, places, or people that aroused recollection of the trauma, hypervigilance, and exaggerated startle response. The Appellant detailed the Veteran's fits of rage with a history of anger. Specifically, the Appellant reported the Veteran was "always having temper tantrums." Dr. S.H. cited May 2011 VA treatment records that reported the Veteran was irritable with angry outbursts, and he had a difficulty getting along with others. The Appellant indicated that the Veteran did not get along with others and was isolated. The Veteran told the Appellant he felt cut off and distant, and he did not connect well with others. The Appellant reported the Veteran struggled at work because he would lose his temper with his boss or coworkers. She recalled a handful of incidents where he would grab one of his guns and threaten people, but she specifically reported that the Veteran never hurt anyone. He had limited contact with his family, no meaningful friendships. Dr. S.H. noted the Appellant testified to similar facts in the August 2017 Board hearing. Dr. S.H. noted that symptoms of anxiety, panic, and claustrophobia were documented in a December 2011 VA treatment record. The Appellant reported the Veteran frequently ruminated about the war. He was on edge and easily overwhelmed. The Appellant said the Veteran had difficulty with memory and concentration. According to the Appellant, the Veteran was unable to engage in preparing meals due to issues with multitasking and safety, such as leaving the stove burner on. Furthermore, the Appellant testified that he forgot his niece's names. Dr. S.H. noted the Veteran felt guilty related to his service, citing the June 2012 VA examination. He had feelings of pending doom and felt like his future would be cut short. VA treatment records noted the Veteran reported feeling down, depressed, and hopeless nearly every day, citing February 23, 2011, July 25, 2011, September 27, 2011, and March 5, 2012 VA treatment records. He also reported feeling bad about himself several days out of the week, citing February 23, 2011 VA treatment records. The Appellant recalled that the Veteran was sad "most of the time." Based on a review of the claims file and the Appellant's interview, the examiner concluded the Veteran had significant difficulty with functioning during the appellate period because of the PTSD. Dr. S.H. also acknowledged that the Veteran was diagnosed in April 2011 with a right meningioma, a brain tumor, affecting the frontal lobe, which commonly had symptoms of headaches, seizures, vision changes, speech issues, and weaknesses in the extremities. Meningiomas were also often associated with psychiatric symptoms, including mood issues, psychosis, and personality changes. The frontal lobe is responsible for regulating emotions, and disturbances in the frontal lobes could manifest in more intense psychiatric symptoms. The examiner concluded that the right frontal lobe meningioma increased the PTSD's severity. Despite the brain tumor, the examiner also concluded that the PTSD alone manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and mood, although no rationale for this finding was provided. Further review of the record shows the Veteran was diagnosed with a right frontal lobe meningioma in June 2010 and underwent a brain tumor resection and craniotomy. A June 2011 VA treatment record noted the Veteran had residual tumor was present and he had right frontal lobe encephalomalacia, which is "softening of the brain." See Dorland's Illustrated Medical Dictionary 613 (32nd ed. 2012). A September 2011 VA treatment record noted that the Veteran underwent an MRI two weeks earlier which showed the brain tumor had returned and was growing. In May 2013, shortly before his death, the brain tumor was characterized as a "massive recurrence." The Appellant attributes all the Appellant's psychiatric behavior to the PTSD. Nevertheless, the record shows that some of psychiatric symptoms may be due to the non service-connected brain tumor and/or the encephalomalacia. For example, in the September 2021 private medical opinion, Dr. S.H. cited to several VA treatment records to support that the Veteran reported anxiety, panic, and claustrophobia as PTSD symptoms. However, on review of the cited December 2011 VA treatment record, the Veteran reported anxiety and claustrophobia in the context of a brain MRI for the brain tumor. He was asking his VA clinician to prescribe the same medications for the next MRI. The context of these symptoms suggest that they were related to experiencing an MRI; Indeed, the records do not attribute these symptoms to the PTSD. Another example is the Appellant's characterization of the Veteran having a "speech impairment." The Appellant described the manifestation of this symptom as, when she spoke to the Veteran, "he would just smile and say, ['] look I'm smiling.[']" See August 2017 Board hearing, September 2021 private medical opinion, and November 2021 brief. May 2013 VA treatment records also noted this incident. In May 2013, the Veteran was admitted to the hospital after he had a seizure the night before. The Appellant noted that his personality had changed in the previous week, and he had been quieter and less talkative. No confusion, headaches, speech difficulty, or visual disturbances were reported. On physical examination, the Veteran was oriented to person, place, and time with normal mood and affect. His behavior was normal. He was evaluated by neurosurgery and underwent a "redo" bifrontal craniotomy and resection for a recurrent falcine meningioma. While the Appellant attributes this episode to the service-connected PTSD, it appears to be related to the brain tumor recurrence. Additionally, in the September 2021 private medical opinion, Dr. S.H. indicated that meningiomas manifested in psychiatric symptoms, and that the non-service connected brain tumor aggravated the service-connected PTSD. However, Dr. S.H. did not discuss which symptoms were attributable to which diagnosis or determine that distinguishing between the symptoms would be impossible. Additionally, she failed to address the type of effects that the loss of frontal lobe brain tissue (encephalomalacia) had on the Veteran, to include memory, emotion, impulse control, problem solving, social interaction, judgment, and motor function. See https://www.healthline.com/human-body-maps/frontal-lobe#functions (accessed September 96, 2021). Furthermore, Dr. S.H. concluded the PTSD interfered with the Veteran's ability to complete activities of daily living (ADL), such as cooking. However, a July 2010 VA Aid and Attendance Examination for Housebound Status or Permanent Need for Regular Aid and Attendance by Dr. K.L. attributed his difficulty with ADLs to the non-service connected macular degeneration which made him legally blind, seizures related to the brain tumors, arthritis, and hypertension. Therefore, on remand, an additional addendum opinion should be obtained to address the nature and severity of the PTSD disability, to include obtaining a medical opinion as to whether the symptoms reported in the August 2017 Board hearing, September 2021 private medical opinion, and September 2021 brief are symptoms of the service connected PTSD or symptoms of the non-service connected meningioma or frontal lobe encephalomalacia. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. As discussed above, the Board has found that the issue of a TDIU has now been raised by the Appellant and the record. See September 2021 private medical opinion. Additionally, the Board finds the claim for a TDIU is inextricably intertwined with the claim for a higher rating for the PTSD, which is also remanded herein. The adjudication of the TDIU claim may depend on the outcome of the claim for an increased rating claim for the PTSD. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, entitlement to a TDIU is also remanded. The matters are REMANDED for the following action: 1. Obtain a VA medical opinion from an appropriate clinician to address the nature and severity of the Veteran's PTSD symptoms prior to his death. After a thorough review of the claims file, the examiner should: a) Provide an opinion as to which psychiatric symptoms are due to the service-connected PTSD and which psychiatric symptoms are due to the non-service connected meningioma and frontal lobe encephalomalacia. b) In doing so, the examiner should specifically consider the Appellant's August 2017 Board testimony, the September 2021 private medical opinion, and the assertions in the September 2021 brief, and when discussing the severity of the PTSD. *If the examiner concludes that an opinion cannot be provided without resorting to mere speculation, the examiner must also indicate whether any use of the phrase "without resorting to mere speculation" reflects the limitations of knowledge in the medical community at large, as opposed to the limits of the examiner's specific knowledge and expertise. A rationale for this finding must also be provided, and the examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). *For each conclusion, a complete rationale should be provided. 2. Readjudicate the claims on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, 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.