Citation Nr: 21074990 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-10 190 DATE: December 16, 2021 REMANDED Entitlement to a higher initial rating for posttraumatic headaches, rated 30 percent disabling prior to July 13, 2015 and noncompensable since that date, is remanded. Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) with alcohol abuse is remanded. Entitlement to an initial rating higher than 40 percent for traumatic brain injury (TBI), to include the question of whether a separate compensable rating for this disability is warranted prior to October 23, 2014, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2008 to May 2014. His awards include the Purple Heart Medal, Combat Infantryman Badge, and Bronze Star Medal. These matters come before the Board of Veterans' Appeals (Board) from a July 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a September 2021 hearing and a transcript of the hearing is associated with his claims file. As for characterization of the issues on appeal, in an August 2014 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for migraine headaches and assigned an initial 30 percent disability rating, from May 31, 2014. The AOJ also awarded service connection for PTSD with alcohol abuse and mild TBI with postconcussive symptoms and assigned a single combined initial disability rating of 50 percent, from May 31, 2014. The Veteran did not appeal this decision within one year of its issuance. Regardless, in April and July 2015, additional relevant VA treatment records and the reports of June and July 2015 VA headache, psychiatric, and TBI examinations were associated with the claims file. In the July 2015 rating decision, the AOJ readjudicated the ratings assigned for the Veteran's service-connected headaches, psychiatric disability, and TBI. The AOJ made the following determinations: reduced the disability rating for posttraumatic headaches (previously characterized as migraine headaches) from 30 percent to 0 percent, from July 13, 2015; denied entitlement to a rating in excess of 50 percent for PTSD; and awarded a separate initial 40 percent disability rating for TBI, from October 23, 2014. The current appeal of the ratings assigned for the service-connected headaches, psychiatric disability, and TBI originates from the July 2015 decision. In light of the evidence that was associated with the Veteran's claims file, as described above, the Board finds that new and material evidence was received within a year of the August 2014 rating decision. Hence, that decision did not become final as to the ratings assigned for the service-connected headaches, psychiatric disability, and TBI. See Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Muehl v. West, 13 Vet. App. 159, 161 (1999) (holding that records constituting new and material evidence received within one year after AOJ decision rendered AOJ decision non-final); 38 C.F.R. § 3.156 (a), (b). Therefore, the issues of whether the initial ratings assigned for headaches, PTSD with alcohol abuse, and TBI were proper remained pending at the time of the July 2015 rating decision, and the Board has characterized the issues on appeal as entitlement to higher initial ratings. Also, the TBI issue includes the question of whether a separate initial compensable rating for this disability is warranted prior to October 23, 2014. Moreover, the evidence reflects that the Veteran has been unemployed during part of the claim period and that he has contended that his service-connected disabilities have contributed to his inability to secure and follow substantially gainful employment. Entitlement to a TDIU may be an element of an appeal for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Given the evidence of current disabilities, the Veteran's claim for the highest ratings possible for his service-connected headaches, psychiatric disability, and TBI, and the evidence of unemployability, the issue of entitlement to a TDIU is properly before the Board as part and parcel of the Veteran's appeal for higher ratings for his service-connected posttraumatic headaches, PTSD with alcohol abuse, and TBI. 1. Entitlement to higher initial ratings for posttraumatic headaches (rated 30 percent disabling prior to July 13, 2015 and noncompensable since that date), PTSD with alcohol abuse (rated 50 percent disabling), and TBI (rated 40 percent disabling since October 23, 2014), are remanded. The evidence reflects that the Veteran's service-connected posttraumatic headaches, PTSD with alcohol abuse, and TBI may have worsened since he was last examined by VA in June and July 2015 and/or that the June and July 2015 examination reports do not adequately reflect the severity of his disabilities. For instance, the report of the July 2015 VA headache examination indicates that the Veteran did not experience any prostrating attacks of headache pain. However, he reported during the September 2021 Board hearing that he experienced frequent debilitating headaches that required him to lay down. Also, he reported during the hearing that he experienced worsening problems with memory, concentration, and hygiene associated with his service-connected psychiatric disability and/or TBI in the years since his June 2015 examinations. In light of this information, the Veteran should be provided an opportunity to report for new VA examinations to ascertain the current severity and manifestations of his service-connected posttraumatic headaches, PTSD with alcohol abuse, and TBI. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Richmond Healthcare System and are dated to April 2015. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. Since a decision on the remanded higher rating issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. The issue of entitlement to a TDIU should be adjudicated in the first instance by the AOJ, to include appropriate notification. The Veteran should also be given an opportunity to submit a formal application for a TDIU (VA Form 21-8940). Also, all outstanding VA treatment records should be secured upon remand. The Board sincerely regrets the additional delay, but finds that a remand is necessary in order to ensure a full and fair adjudication of the claims on appeal. The matters are REMANDED for the following action: 1. Send the Veteran a letter that provides him with notice as to the information and evidence that is required to substantiate his claim for a TDIU and ask the Veteran to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings, especially for the period since May 2014. A copy of this letter must be included in the claims file. 2. Ask the Veteran to identify the location and name of any VA or private medical facility where he has received treatment for headaches, psychiatric disability, and residuals of TBI, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of his treatment for headaches, psychiatric disability, and residuals of TBI from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's outstanding VA treatment records from the VA Richmond Healthcare System for the period since April 2015; and all such relevant records from any other sufficiently identified VA facility. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected posttraumatic headaches. 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 provide reasons for any opinion given. 5. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with alcohol abuse. 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 provide reasons for any opinion given. 6. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for all appropriate examinations to determine the current severity of his service-connected TBI and its residuals. The clinician 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. Specifically, the clinician should provide an assessment of the current nature and severity of all residuals of the Veteran's service-connected TBI consistent with the schedular criteria for evaluating the residuals of TBI under 38 C.F.R. § 4.124a, Diagnostic Code 8045. The clinician should specifically address the degree to which the service-connected disability is manifested by facets of cognitive impairment including memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness. For each such area of impairment identified, the clinician should opine whether it is at least as likely as not a symptom associated (in whole or in part) with the Veteran's service-connected TBI. The clinician should also identify all comorbid physical, neurological, or mental disorder(s), and state whether each is shown to be caused by the Veteran's TBI. If not, then, with respect to each comorbid disorder identified, the clinician should attempt to distinguish any symptoms and impairment attributable to such disability from the symptoms and impairment attributable to the identified TBI. If the manifestations cannot clearly be distinguished, the clinician should clearly so state. The clinician must provide reasons for any opinion given. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.