Citation Nr: 21006007 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-28 672 DATE: February 3, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) prior to June 21, 2016, is remanded. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with TBI since June 21, 2016, is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to June 21, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1962 to June 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and November 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a hearing that was scheduled for October 2018. Subsequently, the Veteran requested that his hearing be cancelled in October 2018. Accordingly, his request for a Board hearing is withdrawn. 38 C.F.R. § 20.704(e). The Veteran also appealed entitlement to service connection for a cervical spine disability. In November 2020, the RO granted service connection for degenerative disc disease C4-C7 with multilevel spinal and neuroforaminal stenosis. As such, the claim for service connection for a cervical spine disability is no longer before the Board. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). This matter was previously before the Board in May 2020, wherein the Board the remanded the issues for additional development. The matter has returned to the Board for adjudication. 1. Entitlement to an initial disability rating in excess of 10 percent for TBI prior to June 21, 2016 2. Entitlement to an initial disability rating in excess of 70 percent for PTSD with TBI since June 21, 2016 By way of history, in an April 2014 rating decision, the Veteran was granted service connection for a traumatic brain injury with an evaluation of 10 percent from December 17, 2013, the date VA received his claim. Subsequently, in a September 2016 rating decision, the Veteran was granted service connection for PTSD with an evaluation of 70 percent from June 21, 2016, the date VA received his claim. Thereafter, in a November 2017 rating decision, the RO combined the service-connected TBI and PTSD disability ratings into one rating and assigned an evaluation of 70 percent, effective June 21, 2016. The May 2020 Board decision found that the RO did not address whether, prior to June 21, 2016, the Veteran’s reports of anxiety at his March 2014 VA TBI examination and his October 2013 VA diagnosis of adjustment disorder with mixed anxiety and depressed mood were residuals of his service-connected TBI, and if so, whether the psychiatric symptoms were clearly separable from his TBI symptoms. Additionally, the May 2020 Board noted that for the period of appeal since June 21, 2016, the RO has not addressed whether the Veteran’s service-connected PTSD and TBI symptoms are clearly separable and thus warrant separate ratings. Per the May 2020 remand instructions, the RO obtained a medical opinion in September 2020 regarding the Veteran’s reports of anxiety and diagnosis of adjustment disorder with mixed anxiety and depressed mood. The VA examiner opined that review of evidence in the file indicates that from December 17, 2013, to June 20, 2016, the Veteran’s anxiety symptoms and diagnosed adjustment disorder with mixed anxiety and depressed mood were not a residual of his service-connected TBI. The examiner explained that evidence in the file specified that the previous examiner, who completed the initial TBI residuals VA examination in March 2014, did not include anxiety, depressed mood, or an adjustment disorder as a residual of the Veteran’s TBI. Rather, the only residual the previous examiner noted was headaches. She also stated that the adjustment disorder with mixed anxiety and depressed mood related to his self-reported TBI and was first diagnosed in May 2013 by C.W., MSW, LICSW. The September 2020 VA examiner noted that an adjustment disorder is an emotional condition experienced in reaction to a stressor. The social worker described the stressor as a self-reported TBI, but this emotional reaction was not a residual of TBI such that his anxiety was not physiologically related to his TBI. Here, the September 2020 VA examiner’s opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). She stated that the Veteran’s anxiety symptoms from December 17, 2013, to June 20, 2016, were not reported by the March 2014 VA examiner, however, the March 2014 VA examination report shows that the neurobehavioral effects were described by the examiner as the Veteran having irritability during headaches. The VA examiner also found “he has anxiety in addition.” The examiner also stated, “he takes medication to help with headaches and anxiety.” Furthermore, while the September 2020 VA examiner stated that the emotional reaction was not a residual of the TBI and found that his anxiety was not physiologically related to his TBI, she did not provide any further detail as to why the anxiety was not a residual of his TBI. Her statements were conclusory, and she did not adequately explain her reasoning with supportive facts and evidence. The September 2020 VA examiner also opined that since June 21, 2016, the Veteran’s PTSD and TBI symptoms are clearly separable, except for irritability, which related to both PTSD and TBI, such that irritability sometimes occurs with headaches, a residual of TBI. As reported by the VA examiner who conducted the October 2017 review TBI examination, the following symptoms were attributed to PTSD and were separate from TBI: intrusive thoughts/memories, dreams/nightmares, sleep issues, anxiety, feeling upset, panic attacks, socialization issues, depression/mood issues, rumination of the past, social isolation, poor coping with stress, concentration problems, and short-term memory issues with prolonged tasks. The following symptoms were related to the Veteran’s head injury/mild TBI: mixed tension and migraine headaches, dizziness, and balance problems. The May 2020 Board decision also indicated that the RO must also determine whether the Veteran’s complaints of dizziness and balance issues throughout the entire appeal period are manifested by a separate and distinct diagnosis that warrants a separate rating apart from the service-connected TBI. In this regard, there has been no VA examination regarding the Veteran’s dizziness and balance issues. In August 2020, the VA examiner noted that there has been no previous ear examination and that one is needed to identify the etiology of the Veteran’s dizziness. The examiner stated that records show dizziness associated with headaches, but also some possible orthostatic changes associated with getting up quickly with history of coronary artery disease status post coronary artery bypass grafting. He also stated that cardiology notes have also referenced dizziness associated with history of TBI. Based on the noted deficiencies in the VA medical opinion from September 2020, remand is warranted to obtain addendum opinions that adequately addresses the discrepancies. A remand is also warranted to afford the Veteran an examination for his dizziness and balance problems to determine the etiology of these disabilities. 3. Entitlement to a TDIU prior to June 21, 2016 In the May 2020 decision, the Board found that the issue of entitlement to a TDIU prior to June 21, 2016 was raised as part and parcel of the increased rating claims presently on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The May 2020 remanded this issue as the Veteran’s service-connected disabilities did not meet the schedular requirements under 38 C.F.R. § 4.16(a) prior to June 21, 2016. The Board decision instructed the RO to request that the Veteran provide IRS tax returns from 2013 through 2016. Additionally, the May 2020 Board decision instructed the RO to forward and refer the Veteran’s claim for TIDU to VA’s Director of Compensation Service for extraschedular consideration. To date, the Veteran has not submitted IRS tax returns from 2013 through 2016 and the RO has not referred the Veteran’s claim to the Director of Compensation Service for extraschedular consideration. As such, remand is required to comply with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App 268 (1998). The matters are REMANDED for the following action: 1. Obtain VA treatment records from October 2020 to present. All reasonable attempts should be made to obtain any identified records. 2. Ask the Veteran to provide IRS tax returns from 2013 through 2016 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T "Request for Transcript of Tax Return" which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2013 through 2016 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 3. Schedule the Veteran with the appropriate medical professional for a VA examination to assess the Veteran’s complaints of dizziness and balance problems. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. The VA examiner should express an opinion concerning whether the dizziness and balance issues throughout the entire appeal period are manifested by a separate and distinct diagnosis or are subjective symptoms of the service-connected traumatic brain injury or other known cause. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 4. Obtain an addendum opinion from the VA provider who issued the September 2020 medical opinions for PTSD and TBI (or if no longer available, an appropriate replacement). The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The electronic records, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: The examiner must opine whether, from December 17, 2013, to June 20, 2016, the Veteran’s anxiety symptoms and diagnosed adjustment disorder with mixed anxiety and depressed mood were a residual of his service-connected traumatic brain injury. If so, the examiner must opine whether these psychiatric symptoms were clearly separable from the Veteran’s service-connected traumatic brain injury symptoms. The examiner must opine whether, since June 21, 2016, the Veteran’s PTSD and traumatic brain injury symptoms are clearly separable. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. 5. After the above development has been completed, refer the Veteran’s claim for a TDIU prior to June 21, 2016, to VA’s Director of Compensation Service for extraschedular consideration. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.