Citation Nr: 21005907 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-56 308 DATE: February 2, 2021 REMANDED Entitlement to a compensable evaluation for traumatic brain injury (TBI) is remanded. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an increased rating in excess of 10 percent for left knee degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from September 2007 to September 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA). This case was remanded in April 2019 and April 2020 for further development. In March 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Since the Board’s last remand, service connection for PTSD was granted in a May 2020 rating decision. In a later May 2020 rating decision, the Agency of Original Jurisdiction (AOJ) recharacterized the Veteran’s PTSD to be associated with his TBI. Indeed, the evidence indicates that the Veteran’s PTSD symptoms cannot be distinguished from his TBI symptoms. See May 2020 VA psychological examination. Thus, the issue regarding the appropriate rating for PTSD falls within the scope of the TBI issue currently before the Board and has been added as an issue. Finally, the Veteran requested that his case be advanced on the docket due to severe financial hardship associated with the COVID-19 pandemic. See July 2020 correspondence. That Board finds that the Veteran has demonstrated significant hardship and has granted his motion. Thus, the case is now advanced on the docket. 38 C.F.R. § 20.800(c). 1. Entitlement to a compensable evaluation for TBI. The rating criteria to assess the Veteran’s TBI includes evaluation of emotional or behavioral dysfunction caused by TBI. However, a veteran is to be separately evaluated pursuant to the rating criteria for a mental disorder when such mental disorder is diagnosed, See 38 C.F.R. § 4.124a, Diagnostic Code 8045. During all of the Veteran’s VA TBI examinations, he was not noted to have emotional or behavioral dysfunction as a result of his TBI. See, e.g., August 2015 VA TBI examination. However, during a May 2020 VA psychological examination, the examiner diagnosed PTSD and opined that it was not possible to distinguish the Veteran’s PTSD and TBI symptoms. This indicates that the Veteran does indeed have emotional or behavioral dysfunction caused by TBI. The AOJ only granted service connection for PTSD from March 20, 2020, but the current appeal period for TBI extends to November 2014. It is unclear whether the Veteran had PTSD prior to March 2020 and whether such disability could not be distinguished from his TBI symptoms. Thus, remand is necessary for new VA psychological and TBI examinations to obtain a retrospective opinion regarding the relationship between the Veteran’s PTSD and TBI prior to March 20, 2020. 2. Entitlement to an evaluation in excess of 30 percent for PTSD. This matter is inextricably intertwined with the other remanded issue related to TBI for the reasons discussed above. Thus, it must be remanded as well. 3. Entitlement to an increased rating in excess of 10 percent for left knee degenerative arthritis. While the August 2020 VA knee examination provided passive range of motion measurements, it is unclear whether such measurements were from weight-bearing or non-weight-bearing testing. As a result, the examination is inadequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, remand is necessary for a new examination. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from May 2020 to the present. 2. After the development in the first directive is completed, the AOJ should arrange for TBI and psychological examinations of the Veteran to assess the current severity of his service-connected TBI, to include any relationship his TBI has with PTSD prior to March 20, 2020. The examiner must review the entire record (including this remand) in conjunction with the examination and note such review was conducted. The examiner should provide a full description of the disability and report all signs and symptoms associated with the Veteran’s disability. In addition, the examiner is requested to respond to the following: Did the Veteran have PTSD from November 25, 2014 to March 20, 2020? If so, is it possible to differentiate what symptoms were attributable to TBI and PTSD from November 25, 2014 to March 20, 2020? Please explain why. 3. After the development in the first directive is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left knee disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.