Citation Nr: 21006228 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-06 920A DATE: February 3, 2021 REMANDED Entitlement to a compensable rating prior to January 11, 2020, for residuals of a TBI, and in excess of 10 percent thereafter. Entitlement to a rating in excess of 30 percent for headaches. REASONS FOR REMAND The Veteran served on active duty from June 1981 to June 1985 and from November 1992 to March 1993, with additional service in the National Guard. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision. The Veteran’s claim for an increased rating for his residuals of a TBI was before the Board in December 2017 and April 2019; both times, his claim was remanded for new examinations. While the Board regrets the delay, an additional remand is required to obtain adequate examinations which accurately describe the Veteran’s functional impairment due to his TBI and which comply with the Board’s prior remands. The Board additionally notes that the Veteran was granted a separate rating of 30 percent for headaches as part and parcel of his claim for an increased rating for TBI. Thus, the issue is considered herein. REASONS FOR REMAND Entitlement to a compensable rating prior to January 11, 2020, for residuals of a TBI and in excess of 10 percent thereafter Initially, the Board finds the January 2020 TBI examination does not comply with its prior remand directives. Notably, the September 2019 remand directives instructed the AOJ to ensure the Veteran was provided a TBI examination performed by a neurologist and which contained neuropsychological testing. While the January 2020 examination was performed by a neurologist, no neuropsychological testing was performed. Moreover, the December 2017 remand directives instructed the AOJ to ensure that the examiner who performed a TBI examination describe, to the extent possible, “describe all manifestations and symptoms of the Veteran’s service-connected TBI from December 2011 to present, including any cognitive, psychological, and physiological manifestations and symptoms.” This was also not provided in the January 2020 examination report; the Board also notes that service-connection for residuals of a TBI has been in effect since June 27, 2011, and therefore, this description should be modified to include manifestations and symptoms from that date to the present. Accordingly, a remand is required for a new examination consistent with the above. Further, the January 2020 examination notes that the Veteran has a mental disorder as a residual of his TBI and the record reflects VA attempted to schedule the Veteran for an examination on January 31, 2020, to evaluate any mental health impairment related to his TBI. The record reflects that the Veteran attempted to reschedule this examination, however, this has not been accomplished. VA regulation provides that there are three main areas of dysfunction that may result from TBIs and have profound effects on a Veteran’s functioning: cognitive, emotional/behavioral, and physical, and indicates that each of these areas of dysfunction may require evaluation.  38 C.F.R. § 4.124a, Diagnostic Code 8045.  Emotional/behavioral dysfunction is to be evaluated under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder; when there is no diagnosis of a mental disorder, emotional/behavioral symptoms are evaluated under the criteria in the TBI Table.  Id. Based on the foregoing, the Board finds a mental health examination is required to determine whether the Veteran has diagnosis of a mental disorder in order to properly evaluate his disability. The Veteran and his representative are informed they have the right to submit additional evidence and argument on this matter while it is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Board finds the consideration of the Veteran’s headache disability as inextricably intertwined with the claim for an increased rating for a TBI on appeal. The matters are REMANDED for the following action: 1. Obtain any unassociated VA treatment records. 2. Afford the Veteran a TBI examination by a neurologist to evaluate the severity of the residuals of this condition. The examiner must obtain from the Veteran and record in the examination report all symptoms and functional impairment he has experienced due to this disability. NEUROPSYCHOLOGICAL TESTING MUST BE PERFORMED. Following a complete review of the evidence of record, and with consideration of the Veteran’s statements and neuropsychological testing, please provide the following information: To the extent possible, describe all manifestations and symptoms of the Veteran’s service-connected TBI from June 27, 2011, to the present, including, but not limited to, any cognitive, psychological, and physiological manifestations and symptoms. A complete explanation for any conclusion must be provided. Each facet of TBI related impairment must be discussed thoroughly. A complete rationale and description for the above is required. If the examiner is unable to provide any opinion or information without resorting to speculation, he or she must explain why this is so. The examiner must explain whether the inability to do so is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. If the inability to provide any opinion is due to lack of medical knowledge on the part of the examiner, rather than lack of knowledge in the medical community as a whole, another neurologist must provide the opinion. 3. Afford the Veteran a mental health examination. The examiner must obtain from the Veteran and document in the examination report a complete description regarding the symptoms and functional impairment he experiences. All appropriate diagnostic testing should be performed. Following a review of the evidence of record and with consideration of the Veteran’s statements, please provide the following information: (a) Document all mental health diagnoses found on examination and in the record. (b) With regard to each diagnosis in (a), determine whether it is at least as likely as not (50 percent probability or higher) that the disorder is a manifestation of the Veteran’s residuals of a TBI. Why or why not? If there is more than one mental health diagnosis, the examiner should discuss whether it is possible to separate the symptoms and manifestations of the diagnoses. Why or why not? (c) Regardless of whether there is a diagnosed mental health disorder, discuss and describe all emotional and behavioral impairment the Veteran has experienced due to residuals of a TBI from June 27, 2011, to the present. A complete explanation for any conclusion must be provided. A complete rationale and description for the above-requested information is required. If the examiner is unable to provide any opinion or information without resorting to speculation, he or she must explain why this is so. The examiner must explain whether the inability to do so is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. If the inability to provide any opinion is due to lack of medical knowledge on the part of the examiner, rather than lack of knowledge in the medical community as a whole, another medical professional must provide the opinion. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O'Connell, Jessica L. 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.