Citation Nr: 21077306 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 20-12 664 DATE: December 29, 2021 ORDER New and material evidence to reopen the claim for entitlement to service connection for bilateral hearing loss has been received and the claim is reopened. New and material evidence to reopen the claim for entitlement to service connection for tinnitus has been received and the claim is reopened. New and material evidence to reopen the claim for entitlement to service connection for sleep impairment has been received and the claim is reopened. New and material evidence to reopen the claim for entitlement to service connection right knee impairment has been received and the claim is reopened. New and material evidence to reopen the claim for entitlement to service connection left knee impairment has been received and the claim is reopened. New and material evidence to reopen the claim for entitlement to service connection for dizziness and vertigo has been received and the claim is reopened. Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. Service connection for sleep impairment is granted. Service connection for right knee impairment is granted. Service connection for left knee impairment is granted. A rating of 10 percent for right-side facial sensory loss and numbness is granted. A rating of 50 percent for migraine headaches is granted. A total disability rating due to individual unemployability (TDIU) is granted. REMANDED Service connection for dizziness and vertigo is remanded. Entitlement to a rating in excess of 10 percent for scar residual is remanded. Entitlement to a compensable rating for right upper extremity sensory loss is remanded. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. Entitlement to a rating in excess of 10 percent for right-side facial sensory loss and numbness is remanded. FINDINGS OF FACT 1. A February 2006 rating decision denied entitlement to service connection for bilateral hearing loss. Evidence received subsequent to February 2006 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for bilateral hearing loss. 2. A February 2006 rating decision denied entitlement to service connection for tinnitus. Evidence received subsequent to February 2006 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for tinnitus. 3. An October 2010 rating decision denied entitlement to service connection for sleep impairment. Evidence received subsequent to October 2010 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for sleep impairment. 4. An August 2001 rating decision denied entitlement to service connection for right knee impairment. Evidence received subsequent to August 2001 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for right knee impairment. 5. An August 2001 rating decision denied entitlement to service connection left knee impairment. Evidence received subsequent to August 2001 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for left knee impairment. 6. An October 2010 rating decision denied entitlement to service connection for dizziness and vertigo. Evidence received subsequent to October 2010 does, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran's claim of entitlement to service connection for dizziness and vertigo. 7. The Veteran's bilateral hearing loss is related to service. 8. The Veteran's tinnitus is related to service. 9. The Veteran's sleep impairment is related to service. 10. The Veteran's right knee impairment is related to service. 11. The Veteran's left knee impairment is related to service. 12. The Veteran's right-side facial sensory loss and numbness is characterized by recurrent numbness. 13. The Veteran's migraine headaches are productive of daily prostrating attacks. 14. The Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. CONCLUSIONS OF LAW 1. Evidence received since the February 2006 rating decision is new and material, and the Veteran's claim of entitlement to service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Evidence received since the February 2006 rating decision is new and material, and the Veteran's claim of entitlement to service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Evidence received since the October 2010 rating decision is new and material, and the Veteran's claim of entitlement to service connection for sleep impairment is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. Evidence received since the August 2001 rating decision is new and material, and the Veteran's claim of entitlement to service connection for right knee impairment is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 5. Evidence received since the August 2001 rating decision is new and material, and the Veteran's claim of entitlement to service connection for left knee impairment is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 6. Evidence received since the October 2010 rating decision is new and material, and the Veteran's claim of entitlement to service connection for dizziness and vertigo is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 7. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385 8. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 9. The criteria for service connection for sleep impairment as secondary to TBI have been met. 38 U.S.C. §§ 1110, 1131, 5107; C.F.R. §§ 3.303, 3.310. 10. The criteria for service connection for right knee impairment have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 11. The criteria for service connection for left knee impairment have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 12. The criteria for a disability rating of 10 percent for right-side facial sensory loss and numbness have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8045-8205. 13. The criteria for a disability rating of 50 percent for migraine headaches have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.124a, Diagnostic Code 8100. 14. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from June 1955 to June 1958. In August 2021, the Veteran appeared at a hearing before the undersigned. At the hearing, the undersigned Veterans Law Judge granted the Veteran's motion to keep the record open for 90 days. The evidence submitted since the August 2021 hearing will be considered by the Board in the adjudication of this appeal. New and Material Evidence Pursuant to 38 U.S.C. § 7104 and 38 C.F.R. § 3.105, a final decision by the Board may not thereafter be reopened and allowed, in the absence of clear and unmistakable error (CUE), except as provided by 38 U.S.C. § 5108, which indicates that "[i]f new and material evidence is presented or secured with respect to a claim, which has been disallowed, the [VA] shall reopen the claim and review the former disposition of the claim." Therefore, once a Board decision becomes final under § 7104, in the absence of CUE, and absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104; 38 C.F.R. § 3.105. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim, triggering an alternative theory of entitlement, or triggering the Secretary's duty to assist by providing a medical opinion. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). 1. Whether new and material evidence has been submitted to reopen a claim of service connection for hearing loss 2. Whether new and material evidence has been submitted to reopen a claim of service connection for tinnitus 3. Whether new and material evidence has been submitted to reopen a claim of service connection for sleep impairment 4. Whether new and material evidence has been submitted to reopen a claim of service connection for right knee impairment 5. Whether new and material evidence has been submitted to reopen a claim of service connection for left knee impairment 6. Whether new and material evidence has been submitted to reopen a claim of service connection for dizziness and vertigo An August 2001 rating decision denied service connection for right and left knee arthritis on the basis that this disorder did not become manifest within one year of service. In February 2006, the RO denied service connection for tinnitus and hearing loss on the basis that a private medical opinion concluded that there was no relationship between these disorders and service. In October 2010, the RO denied service connection for a sleep disorder and vertigo on the basis that there was no nexus between these disorders and service or TBI. In November 2021, the Veteran submitted a private medical opinion supporting the existence of a nexus between hearing loss, tinnitus, knee disorders, and sleep impairment. Also, in November 2021, the Veteran's representative submitted a brief with a citation to a research article indicating that half of people with TBI have dizziness and loss of balance at some point during their recovery. This evidence was not of record at the time of any of the prior decisions, relates to facts necessary to support the Veteran's claims, is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the claims. The criteria for reopening the Veteran's claims have been met. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). An increase in severity of a nonservice-connected disease or injury shall not be service-connected if it is due to the natural progression of the nonservice-connected condition. Id. at 44748. Service connection on a secondary basis may not be granted without medical evidence of a current disability and evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 51214 (1998). 7. Service connection for bilateral hearing loss For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies at 500, 1000, 2000, 3000, or 4000 Hz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Even if disabling loss is not demonstrated at separation, a veteran may establish service connection for a current hearing disability by submitting evidence that a current disability is causally related to service. See Hensley v. Brown, 5 Vet. App. 155, 160 (1993). Regarding the first element of service connection, the February 2006 VA audiological examination provides for a diagnosis of bilateral hearing loss. Puretone thresholds, in decibels, are as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 20 25 55 65 70 LEFT 20 30 60 80 100 Speech recognition ability using the Maryland CNC test is 90 percent in the right ear and 70 percent in the left ear. The Veteran's puretone threshold values support a current diagnosis of bilateral hearing loss under 38 C.F.R. § 3.385. The second element is met, in that in an April 2017 statement, the Veteran indicates that his hearing loss is the result of exposure to in-service explosions without hearing protection, after which he and his colleagues would have to yell at each other to be heard. The nexus element is also met. A November 2021 private medical opinion indicates that the Veteran's bilateral hearing loss is at least as likely as not related to service. This is based on the change in hearing relative to enlistment, the Veteran's testimony about in-service noise exposure, and the Veteran's testimony about the impact of in-service noise exposure. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30102 (2008). As there is no medical evidence to the contrary, the Board finds that the nexus element is met. Service connection is warranted for bilateral hearing loss. 8. Service connection for tinnitus Regarding tinnitus, the first element is met, in that the Veteran is considered competent to testify regarding the existence of tinnitus because this disorder is within the knowledge and personal observations of lay witnesses. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The second element is met, in that in an April 2017 statement, the Veteran indicates that his hearing loss and tinnitus are the result of exposure to in-service explosions without hearing protection, after which his ears would buzz. The nexus element is also met. A November 2021 private medical opinion indicates that the Veteran's tinnitus is at least as likely as not related to service. This is based on the change in hearing relative to enlistment, the Veteran's testimony about in-service noise exposure, and the Veteran's testimony about the impact of in-service noise exposure. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 30102. As there is no medical evidence to the contrary, the Board finds that the nexus element is met. Service connection is warranted for tinnitus. 9. Service connection for sleep impairment The first element is met, in that the November 2021 private medical opinion cites several medical records indicating sleep impairment. For secondary service connection, the nexus element is also met. A November 2021 private medical opinion indicates that the Veteran's sleep impairment is at least as likely as not related to TBI. This is based on the fact that TBI is a recognized cause of sleep impairment. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 30102. As there is no medical evidence to the contrary, the Board finds that the nexus element is met. Service connection is warranted for sleep impairment. 10. Service connection for right knee impairment 11. Service connection for left knee impairment The first element is met, in that the November 2021 private medical opinion cites to VA medical records indicating bilateral knee arthritis. The second element is met, in that in an April 2017 statement, the Veteran indicates that he was Airborne and describes hurting his knees during parachute training. The nexus element is also met. A November 2021 private medical opinion indicates that the Veteran's bilateral knee impairment is at least as likely as not related to service. This is based on an analysis of the Veteran's in-service injuries and current symptoms. This medical opinion is probative because it is based on a review of the record and contains clear conclusions with supporting data connected by a reasoned medical explanation. Nieves-Rodriguez, 22 Vet. App. at 30102. As there is no medical evidence to the contrary, the Board finds that the nexus element is met. Service connection is warranted for right and left knee impairment. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Cranial Nerves Service connection is in effect for right-side facial sensory loss and numbness at an initial noncompensable rating from June 11, 1993, under Diagnostic Code 8205. On April 26, 2017, the Veteran filed a claim for an increased rating. Diagnostic Code 8205 provides compensation for paralysis of cranial nerves. 38 C.F.R. § 4.124a. A 10 percent rating is provided for moderate, incomplete paralysis. Id. A 20 percent rating is provided for severe, incomplete paralysis. Id. A 30 percent rating is provided for complete paralysis. Id. These ratings are dependent upon relative degree of sensory manifestation or motor loss. Id. The words "slight," "mild," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 12. Entitlement to a rating of 10 percent for right-side facial sensory loss and numbness The evidence supports a rating of 10 percent. A June 2017 VA cranial nerves examination indicates that there are no symptoms associated with the Veteran's facial disorder. Muscle strength and senses are normal. The examiner indicates that the Veteran "has no problems with movement of the muscles of the face" and that his injury does "not impact his smelling or tasting." In the August 2021 hearing transcript, the Veteran indicates recurrent numbness in his face. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran's recurrent numbness is consistent with moderate, incomplete paralysis so as to support a rating of 10 percent. As will explained below, entitlement to a rating in excess of 10 percent will be remanded. Migraine Headaches Service connection is in effect for migraine headaches at an initial rating of 10 percent from June 11, 1993, under Diagnostic Code 8045. On April 26, 2017, the Veteran filed a claim for an increased rating. Under Diagnostic Code 8100, a 50 percent rating is provided for very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is provided for characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is provided for characteristic prostrating attacks averaging one in two months over the last several months. Id. A 0 percent rating is provided for less frequent attacks. Id. The rating criteria under Diagnostic Code 8100 are successive, meaning that all criteria must be demonstrated to award the higher rating, and 38 C.F.R. §§ 4.7 and 4.21 do not apply to circumvent these requirements. Johnson v. Wilkie, 30 Vet. App. 245, 25354 (2018). 13. Entitlement to a rating of 50 percent for migraine headaches A June 2017 VA headaches examination indicates that the Veteran takes Tamadol daily for headache pain but does not experience prostrating attacks. In the August 2021 hearing transcript, the Veteran indicates that he experiences daily incapacitating headaches. Giving the Veteran the benefit of the doubt in light of his hearing testimony, the Board finds that the evidence supports a rating of 50 percent based on the existence of very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. In reaching this determination, the Board notes that a schedular rating of 50 percent for migraine headaches contemplates all manifestations, including non-headache symptoms such as dizziness, anxiety, depression, isolation, and nausea, and therefore an extraschedular rating was not warranted. See Holmes v. Wilkie, 33 Vet. App. 67 (2020). TDIU The June 2017 VA TBI examination states that the Veteran "would have difficulty holding a job due to his memory problems." The Board will infer a claim for TDIU. See Rice, 22 Vet. App. at 447. This allegation was made during the pendency of the Veteran's claim of an increased rating for TBI, filed on April 26, 2017. The Board will consider evidence within the one-year period preceding the date of receipt of this claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 3132. An award of TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Rather, an award of TDIU requires that the claimant show an inability "to secure and follow a substantially gainful occupation by reason of service-connected disabilities." 38 C.F.R. § 4.16(b). When making this determination, "the central inquiry is whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (internal citations and quotations omitted). Additionally, the Board "must take into account the individual veteran's education, training, and work history" but "may not consider [nonservice]-connected disabilities or advancing age." Id. (internal citations omitted). The phrase "substantially gainful employment" has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). "The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person." Id. The noneconomic component goes to the veteran's individualized ability to secure and follow substantially gainful employment. Ray, 31 Vet. App. at 73. Attention must be given to the following: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy). Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, and auditory and visual limitations; whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. These factors do not constitute a checklist; rather, "discussion of any factor is only necessary if the evidence raises it." Id. When entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). A claim for a TDIU is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 3132 (2007). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies to circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred one year prior to the claim, the increase is effective as of the date the increase is "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o); Dalton, 21 Vet. App. at 3132. VA regulations indicate that when a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned: 1) if there is only one disability, this disability shall be ratable at 60 percent or more; and 2) if there are two or more disabilities, at least one disability shall be ratable at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, constitutes a single disability under § 4.16(a). The same is true for disabilities resulting from common etiology or a single accident. The Veteran's service-connected disabilities are migraines at 50 percent, TBI at 10 percent, scar residual at 10 percent, and right-sided facial sensory loss and numbness at 10 percent with a combined rating of 64 percent. Giving the Veteran the benefit of the doubt, the Board finds that these disabilities arise from a single etiology or in-service incident. The Veteran meets the percentage rating standards to be considered for individual unemployability under 38 C.F.R. § 4.16(a). A June 2017 VA TBI examination states that the Veteran "would have difficulty holding a job due to his memory problems." An August 2021 TDIU application indicates that the Veteran last worked as a miner and school custodian in 1985. The November 2021 private medical opinion indicates that the Veteran's knee problems "contribute to his inability to seek and maintain gainful employment" and that TBI-related "memory issues ... interfere with his ability to perform his work duties." Giving the Veteran the benefit of the doubt in light of this evidence, the Board finds that the Veteran's service-connected disorders alone render him physically and mentally unable to engage in substantially gainful employment as a minor or school custodian. The Veteran is entitled to TDIU. REASONS FOR REMAND 1. Service connection for dizziness and vertigo is remanded. The Board finds that the Veteran should be afforded a VA examination with respect to these claims. See McLendon v. Nicholson, 20 Vet. App. 79, 8186 (2006). 2. Entitlement to a rating in excess of 10 percent for scar residual is remanded. 3. Entitlement to a compensable rating for right upper extremity sensory loss is remanded. 4. Entitlement to a rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. 5. Entitlement to a rating in excess of 10 percent for right-side facial sensory loss and numbness is remanded. Once a Veteran has raised the issue of an examiner's competency to offer a medical opinion, he or she has the right, absent unusual circumstances, to the curriculum vitae and other information about the qualifications of the examiner. Francway v. Wilkie, 930 F.3d 1377 (Fed. Cir. 2019). In a July 2021 letter, the Veteran's representative raised contentions that meet the Francway criteria and pursuant to the duty to assist the Board must remand this case to provide the Veteran with the examiner's curriculum vitae. For the TBI appeal, additional development is required. When there is a diagnosis of a mental disorder, impairment under Diagnostic Code 8045 may be evaluated under the schedule of ratings for mental disorders. 38 C.F.R. § 4.124a. The Veteran has been prescribed Sertraline for depression and his VA Problem List includes "Depression" and "Anger," but there is no formal diagnosis of an acquired psychiatric disorder and a mental disorders examination has not been conducted. Further, the November 2021 private examination report indicates that the Veteran should be rated at 70 percent under the TBI rating criteria (no rationale is provided), which the Board takes as evidence of worsening. For these reasons, separate examination reports for TBI and mental disorders are required. The matters are REMANDED for the following action: 1. Provide the Veteran information necessary to assess the competency of the VA examiners who conducted the June 2017 examinations, to include the examiner's curriculum vitae. 2. Obtain all VA treatment records from October 2021 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 3. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion regarding the nature, onset, and etiology of any dizziness and vertigo. The examiner should review the entire claims file, conduct all necessary tests and studies, and provide the requested opinions: (a.) Whether the Veteran any dizziness or vertigo. (b.) Whether it is at least as likely as not that any dizziness or vertigo was incurred in the Veteran's service. (c.) Whether the Veteran has any dizziness or vertigo that is proximately due to TBI. (d.) Whether the Veteran has any dizziness or vertigo that was aggravated by TBI. This must be addressed in a separate opinion from the "proximately due to" opinion. In rendering these opinions, the examiner should consider the article cited in the November 2021 brief. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. Schedule a VA TBI and mental health disorders examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.