Citation Nr: 21075003 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 20-09 407 DATE: December 17, 2021 REMANDED Entitlement to an initial compensable rating for residuals of traumatic brain injury (TBI) is remanded. Entitlement to an initial rating higher than 50 percent for depressive disorder with anxious distress is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from June 1996 to April 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2017 and May 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2021 rating decision, the RO granted a 50 percent rating for depressive disorder with anxious distress, effective September 28, 2015. As a higher evaluation is available under the rating schedule, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that Veterans are presumed to seek the maximum available benefit for a disability). The Board notes that new evidence in the form of private treatment records was obtained in August 2021 and that there is no waiver of initial consideration by the agency of original jurisdiction (AOJ). Although this new evidence was received after the issuance of the January 2020 statement of the case (SOC) regarding entitlement to an increased rating for residuals of TBI and after the appeal was transferred to the Board, this evidence is not pertinent in determining the current severity of the Veteran's residuals of TBI as it only discusses that the Veteran had a TBI while in service but provides no indication that the Veteran experiences TBI residuals. Indeed, the Veteran's attorney stated that the private treatment records identified in the July 2021 VA Form 21-4142 were in support of claims for migraines, erectile dysfunction, and obstructive sleep apnea. Thus, solicitation of a waiver of initial consideration by the AOJ is not necessary. As this claims is being remanded, a waiver is also not necessary as these records will be considered on remand. 1. Entitlement to an initial compensable rating for residuals of TBI. The Veteran's attorney contends that neurological testing should have been performed because of the Veteran's symptoms of "short and long term memory loss, problems with concentration, noticeably slower speed of processing information, insomnia, tinnitus, episodes of anger/rage, and shouting at his wife and child (inappropriate social interaction), which are all indicative of a higher evaluation than zero percent for TBI." See NOD (May 2018). The Veteran's attorney also contends that the November 2019 VA examiner was unqualified to administer cognitive testing for TBI residuals, the examination was based on inaccurate facts as the examiner noted no complaints of impairment of memory, attention, concentration, or executive functions, and the January 2020 SOC did not consider the Veteran's symptoms as reported in the May 2018 notice of disagreement (NOD). The Board finds that remand is required for an adequate examination in which the opinion provided is supported "with an analysis that the Board can consider and weigh against contrary opinions." Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning"). Here, the report of TBI examination in April 2017 shows that the examining neurologist opined that the Veteran's memory, judgement, social interaction, orientation, and neurobehavioral problems were due to his depressive disorder, and that he had "no sequalae or residuals from a neurological perspective." See C&P Exam (April 2017). However, the examiner provided no reasoning and no analysis of the evidence which supported that conclusion. A May 2017 report of VA examination for mental disorders shows that the examining psychologist opined that the Veteran's symptoms are not related to his in-service TBI, as his symptoms have not shown the improvement with time that would be expected with a mild TBI-related cognitive deficit. However, the examination was performed by a psychologist (not a noted provider who may conduct TBI examinations). Health care providers who may conduct TBI examinations include physiatrists, psychiatrists, neurosurgeons, and neurologists, as well as generalist clinicians who have successfully completed the DEMO TBI training module. Although the disability benefits questionnaire completed was for a mental disorder and not TBI, the opinion provided essentially amounts to an evaluation of the Veteran's TBI. Indeed, the April 2017 TBI examiner deferred much of the cognitive impairment assessment to the May 2017 VA examiner. A subsequent TBI examination was provided in November 2019, in which the examiner opined that the Veteran's symptoms of memory loss and headaches were not related to his TBI in 1998 based on the time of onset. However, that report shows that the examiner was a family medicine doctor, and there is no indication that the examiner completed the DEMO TBI training module. Notably, such guidance was stated on the face of the November 2019 VA examination report itself. Indeed, the October 2019 examination request provided no indication that a specific clinician with specific training was required, despite the note for such a requirement on the examination report. As the April 2017 neurologist's opinion was supported by no reasoning, the May 2017 examiner was a psychologist, and there is no indication that the examiner who performed the November 2019 VA TBI examination met the aforementioned requirements, the Board finds that efforts should be made to determine whether the November 2019 VA examiner successfully completed the DEMO TBI training module. If not, then a new TBI examination, completed by an examiner with the aforementioned requirements, is required. 2. Entitlement to an initial rating in excess of 50 percent for depressive disorder with anxious distress. The record shows that new evidence, in the form of private treatment records containing mental status examinations during the appeal period, were associated with the claims file after the issuance of the June 2021 SOC regarding entitlement to an increased rating for depressive disorder, and before the case was transferred to the Board. However, there is no waiver of initial consideration by the AOJ. Therefore, the AOJ has not considered this new evidence addressing the Veteran's depressive disorder. The Board must postpone adjudication of this issue until the AOJ can consider this evidence. See 38 C.F.R. § 19.37(a). Accordingly, the matters are REMANDED for the following action: 1. Verify the November 2019 VA TBI examiner's credentialing information, to include whether the examiner successfully completed the DEMO TBI training module. If the above development returns negative, then proceed to directive #2; if the above development returns positive, then proceed to directive #3. 2. Schedule the Veteran for a TBI examination with a physiatrist, psychiatrist, neurosurgeon, neurologist, or a generalist clinician who has successfully completed the DEMO TBI training module. The examiner should review the evidence associated with the record. All indicated tests and studies necessary to evaluate the Veteran under the appropriate rating criteria should be completed. The examiner should identify the nature, frequency, and severity of all current manifestations of the Veteran's TBI, and attempt to differentiate the symptoms of TBI and depressive disorder. In doing so, the examiner must opine whether any symptoms attributed to depressive disorder are instead residuals of TBI. The examiner should specifically discuss the Veteran's memory, judgement, social interaction, orientation, and neurobehavioral problems. A complete rationale for all opinions should be given. If an opinion cannot be provided, the examiner must state why. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, considering the new evidence submitted since the January 2020 SOC regarding entitlement to an increased rating for TBI and the June 2021 SOC regarding entitlement to an increased rating for depressive disorder. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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. Rebecca N. Poulson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.