Citation Nr: 21005566 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-39 158 DATE: February 2, 2021 REMANDED Entitlement to an effective date prior to July 13, 2016 for the award of service connection for residuals of traumatic brain injury (TBI) is remanded. Entitlement to an initial rating in excess of 10 percent for residuals of TBI is remanded. Entitlement to higher staged initial evaluations for posttraumatic stress disorder (PTSD), rated 50 percent prior to September 24, 2019, and 70 percent from September 24, 2019. REASONS FOR REMAND The Veteran had active service from September 2000 to February 2010. These matters comes before the Board of Veterans’ Appeals (Board) on appeal from April 2014 (PTSD) and September 2018 (TBI) rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2018, the Board granted entitlement to service connection for residuals of a head injury and denied entitlement to an increased initial evaluation for PTSD. A September 2018 rating decision effectuated the Board’s August 2018 grant of entitlement to service connection for residuals of a head injury, but recharacterized the disability as residuals of TBI, and assigned 10 percent effective from July 13, 2016. In September 2019, the Veteran’s representative submitted a timely Notice of Disagreement (NOD) as to the initial evaluation assigned but also as to the effective date assigned for the award of service connection for residuals of TBI. However, the issue of entitlement to an effective date prior to July 13, 2016 for the award of service connection for residuals of TBI was not listed on the resulting December 2019 Statement of the Case (SOC) and review of VA’s Veterans Appeals Control and Locator System (VACOLS) does not indicate that the Agency of Original Jurisdiction (AOJ) acknowledged the NOD or that the AOJ is continuing to work on the issue. As the record does not indicate action is pending at the AOJ, the Board has listed this issue on the title page pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, the Veteran appealed the Board’s August 2018 denial as to an increased initial rating for his service-connected PTSD to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2019, the Court granted a Joint Motion for Partial Remand (JMPR) of the parties (the Secretary of VA and the Veteran), and vacated the Board’s decision with respect to this issue, and remanded this issue to the Board for re-adjudication consistent with the JMPR. Thereafter, pursuant to the June 2019 JMPR, in February 2020, the Board remanded the claim. This issue has now returned to the Board for further review. During the pendency of the appeal for a higher initial rating for PTSD, a November 2020 rating decision granted a 70 percent evaluation, effective from September 24, 2019. Because this higher rating does not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities, the Veteran’s appeal as to this issue remains for Board consideration. AB v. Brown, 6 Vet. App. 35, 38 (1993). As a final initial matter, since the issuance of the most recent December 2019 SOC, issued for entitlement to higher initial evaluation for residuals of TBI, additional evidence, both developed by VA and submitted by the Veteran, has been associated with the record. The Veteran did not waive review of this evidence by the AOJ. In this regard, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests consideration by the AOJ. Here, although the Veteran’s substantive appeal for this issue was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the entirety of the additional evidence was submitted by the Veteran. Nonetheless, as this issue on appeal is being remanded for further development for other matters, the AOJ will be able to consider the additional evidence on re-adjudication of the issue following completion of the actions requested in the Remand below. 1. Entitlement to an effective date prior to July 13, 2016 for the award of service connection for residuals of TBI is remanded. As discussed above, the September 2018 rating decision effectuated the Board’s August 2018 grant of entitlement to service connection for residuals of TBI and assigned 10 percent effective from July 13, 2016. In September 2019, the Veteran’s representative submitted, in part, a timely NOD as to the effective date assigned for the award of service connection for residuals of TBI. The record does not reflect a SOC has been issued with respect to this claim nor does VACOLS reflect the AOJ is taking action with respect to this claim. Manlincon, 12 Vet. App. at 240-41. Accordingly, in the circumstances presented in this case, the AOJ must issue an SOC as to the issue of entitlement to an effective date prior to July 13, 2016 for the award of service connection for residuals of TBI. 2. Entitlement to an initial rating in excess of 10 percent for his residuals of TBI is remanded. The Veteran seeks a higher initial evaluation for his residuals of TBI. In this regard, the Board finds that the Veteran’s appeal for higher initial evaluation for his residuals of TBI is inextricably intertwined with his claim for entitlement to an effective date prior to July 13, 2016 for the award of service connection for residuals of TBI as the appeal period for consideration must be determined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Further, most recently, a December 2019 VA examiner evaluated the Veteran’s service-connected residuals of TBI and noted the Veteran reported memory loss and headaches. However, the December 2019 VA examiner found no indication the Veteran ever had a TBI in the first place as there was no loss of consciousness and no imaging to show changes in the brain. The December 2019 VA examiner explained headaches were a common condition and there was no evidence of a memory lapse on examination and that he believed the Veteran was misdiagnosed with a TBI in the first place. In this regard, an August 2018 Board decision, in pertinent part, granted service connection for residuals of a head injury. The August 2018 Board decision, in pertinent part, found there is no evidence to support a diagnosis of cognitive impairment as a residual of the in-service head injury; however, diagnoses of tension headache and a scalp scar, as endorsed by a April 2010 VA examination report (albeit not dated proximate to the currently assigned appeal period), satisfied the first element of direct service connection. A September 2018 rating decision effectuated the Board’s grant of residuals of a head injury. Specifically, the September 2018 rating decision assigned a 10 percent rating effective July 13, 2016 pursuant to Diagnostic Code 8045, for residuals of traumatic brain injury. However, this diagnostic code is evaluated based on cognitive impairment and subjective symptoms. In this regard, as noted above, the August 2018 Board decision, in pertinent part, found there is no evidence to support a diagnosis of cognitive impairment. Instead, the August 2018 Board decision noted, in part, a diagnosis of tension headache. Accordingly, another examination is warranted to determine whether the Veteran’s reported memory loss is clinically distinct from his PTSD, is part and parcel of his TBI, or is clinically distinct from his currently service-connected residuals of TBI, and whether his reported tension headaches are part and parcel of his TBI, or are clinically distinct from his currently service-connected residuals of TBI. 3. Entitlement to higher staged initial evaluations for PTSD, rated 50 percent prior to September 24, 2019, and 70 percent from September 24, 2019 is remanded. As the above requested examination for TBI might produce evidence pertaining to the evaluation of the Veteran’s PTSD, the Board has determined that the PTSD claim is intertwined with the TBI claim. See Harris, 1 Vet. App. at 183. Accordingly, a decision by the Board on the Veteran’s claim for a staged increased initial rating for PTSD would, at this point, be premature. Pursuant to the June 2019 JMRP, in February 2020, the Board, in part, remand this claim to obtain private medical records from L. Coates, M.D. Private medical records from Dr. L. Coates were associated with the record in April 2020. However, a June 2020 VA treatment record documented, in part, the Veteran reported he had not seen Dr. Coates, but instead described they had weekly phone check-ins. Thus, as subsequent to the obtainment of private medical records from Dr. L. Coates in April 2020, the Veteran reported continuing weekly telephonic treatment from Dr. L. Coates, a remand is required to allow VA to obtain authorization and request any updated records. Finally, in light of the remand for other matters, updated VA treatment records from the VA Greater Los Angeles Healthcare System, from November 2020 to the present, should be obtained and associated with the record. The matters are REMANDED for the following actions: 1. Issue a SOC pursuant to the NOD received in September 2019, as to the rating decision in September 2018, which the Veteran is appealing for entitlement to an effective date prior to July 13, 2016 for the award of service connection for residuals of TBI. The SOC should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations, and afford the appropriate period for response. Only if a timely substantive appeal is received for such issue, should the issue be forwarded to the Board for appellate consideration. 2. Obtain any of the Veteran’s updated VA treatment records, from the VA Greater Los Angeles Healthcare System, from November 2020 to the present. 3. Ask the Veteran to complete a VA Form 21-4142 for updated records, for weekly telephonic treatment, since April 2020 for Dr. L. Coates. Make two requests for the authorized records from Dr. L. Coates, unless it is clear after the first request that a second request would be futile 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected residuals of TBI. The examiner is expressly asked to address the following: (a.) Based on a review the Veteran’s claims file, and by eliciting a full history from the Veteran, identify the symptoms of the Veteran’s residuals of TBI throughout the appeal period, and current manifestations and severity of TBI symptoms, to include memory loss and headaches, if determined to be related to TBI. (b.) Whether it is at least as likely as not that the Veteran has memory loss which is part and parcel of his TBI; or is part and parcel of his service-connected PTSD; or is clinically distinct from his currently service-connected residuals of TBI or service-connected PTSD? Rationale must be provided for the opinion(s) proffered. (c.) Whether it is at least as likely as not that the Veteran has tension headaches that are part and parcel of his TBI, or clinically distinct from his currently service-connected residuals of TBI? Rationale must be provided for the opinion(s) proffered. 5. After undertaking any other development deemed appropriate, readjudicate entitlement to an initial rating in excess of 10 percent for residuals of TBI with consideration of whether a separate rating under Diagnostic Code 8100, for migraines, might be applicable in addition to or in lieu of the currently rating for Diagnostic Code 8045, and entitlement to higher staged initial evaluations for PTSD, rated 50 percent prior to September 24, 2019, and 70 percent from September 24, 2019. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.