Citation Nr: 21009193 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 20-24 167 DATE: February 19, 2021 REMANDED Entitlement to an evaluation in excess of 10 percent for residuals of a traumatic brain injury (TBI), to include headaches, intermittent dizziness, and fatigue prior to December 3, 2020, is remanded. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1957 to March 1958. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board remanded the issues on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). In December 2020, the Veteran received a rating decision awarding him a 100 percent rating for residuals of a traumatic brain injury (TBI), to include headaches, intermittent dizziness, and fatigue, with an effective date of December 3, 2020. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 10 percent for residuals of a traumatic brain injury (TBI), to include headaches, intermittent dizziness, and fatigue prior to December 3, 2020. The Veteran contends his residuals of a traumatic brain injury (TBI), to include headaches, intermittent dizziness, and fatigue should receive a higher rating prior to December 3, 2020. The Veteran’s service treatment records demonstrate that the Veteran received treatment on numerous occasions for headaches, dizziness, fainting, fatigue, and weakness during service from August 1957 through January 1958. The Veteran reported subjective symptoms of irritability, headaches, and feeling that “something is not right.” See Military Personnel/Service Treatment Records received May 2009. In June 2015, the Veteran received a rating decision awarding him service connection for his residuals of a TBI, with an effective date of September 29, 2005. In December 2020, the Veteran received a rating decision awarding him a 100 percent rating for his residuals of a TBI, with an effective date of December 3, 2020. Prior to the 100 percent award for residuals of a TBI, the Veteran received VA examinations for his residuals of a TBI in August 2017, February 2014, and April 2013. The Board notes that two of these examinations occurred prior to the Veteran receiving service connection for his residuals of a TBI. The Board also notes that some of the Veteran’s Service Treatment Records (STR’s) may have been lost due to a fire. The Board finds that the prior VA examinations do not contain all information necessary to allow proper evaluation of the disability during the applicable time period. In April 2013, the Veteran was unable to complete his examination because he became irritable, and claimed he was “being attacked and did not understand why he should be subjected to this extent of questioning and did not cooperate.” In February 2014, the Veteran underwent another VA examination for his residuals of a TBI condition. The examiner opined that the Veteran did not suffer a TBI because there was a delay in the Veteran losing consciousness and hitting his head on the ground. The examiner’s rationale relied in part on inaccurate facts such as the Veteran not suffering from headaches during service. In August 2017, the Veteran underwent another VA examination for the residuals of a TBI. The Board notes, this examination was performed after the Veteran became service connected for his TBI condition. The Veteran was accompanied by his son, that indicated that the Veteran’s short and long-term memory are affected. The son manages the Veteran’s finances and helps him shower, remember his medications, and assists the Veteran in washing his clothes. The Veteran still drives and denies getting lost. The examiner noted that the Veteran’s headaches, dizziness and vertigo are related to TBI’s. The examiner notes that the Veteran’s cognitive function has clearly declined since 2013. But indicates that the progressive cognitive decline over time is not consistent with the natural history of TBI’s. The Board cannot make a fully informed decision without obtaining an retrospective assessment of the severity of the TBI disorder during the period from the effective date of service connection for TBI until December 3, 2020, that considers the entire record, including the Veteran’s lay statements. Therefore, a remand is necessary, to determine if the Veteran is entitled to a higher rating for his service-connected residuals of a TBI prior to December 3, 2020. 2. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance In January 2021, the Veteran’s representative contended that the Veteran is entitled to SMC based on the need for aid and attendance. The Board finds that this matter must be remanded for further development before a decision may be made on the merits. On remand the RO should send the Veteran the proper notices as to SMC aid and attendance. The RO should also send a letter to the Veteran requesting that he provide descriptions of the types of personal assistance and the frequency of assistance he requires. The matter is REMANDED for the following action: 1. Obtain a retrospective addendum opinion from an appropriate clinician to determine the severity of the Veteran’s service-connected residuals of traumatic brain injury (TBI), to include headaches, intermittent dizziness, and fatigue, from September 29, 2005, to December 3, 2020, to include estimates of the 10 facets of TBI related cognitive impairment. The clinician must be provided with and must review the entire claims file, to include a copy of this remand and it should be confirmed that such records were available for review. Another examination of the Veteran is not required unless deemed necessary by the examiner. Following a review of the evidence of record, to include the Veteran’s lay statements, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability) that the Veteran’s complaints including but not limited to (memory loss, vertigo, irritability, fainting, weakness, headaches, dizziness, tinnitus, and peripheral vestibular disorder) are related to the Veteran’s service-connected residuals of traumatic brain injury (TBI), to include headaches, intermittent dizziness, and fatigue (as opposed to being a symptom of a nonservice-connected disability). (b.) Determine the severity of each of the conditions from #2 (that are due to the Veteran’s service connected TBI condition) based on a review of the record in regard to the TBI facets. (Provide an estimate). 2. A complete rationale must be provided for any opinion or conclusion expressed. The clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). If the examiner is unable to provide any requested opinion, he or she must provide a thorough explanation. Specifically, the examiner must note and address that the Veteran and his representative have stated that: (a.) The Veteran is presumed to have suffered an aggravation of TBI during service. (b.) The Veteran received treatment on numerous occasions for headaches, dizziness, fainting, fatigue, and weakness during service from August 1957 through January 1958. (c.) Treatise materials submitted May 2014 regarding severity of TBI symptoms. (d.) In the September 2002 psychiatric consult note, the examiner indicated that the Veteran’s judgment was fair to poor. The Veteran has baseline word finding deficits, possible learning difficulties, quirky personality traits, and predominant circumstantial though processes. His MMSE score is concerning for mild cognitive impairment but he may have had difficulty performing the exam due to his circumstantial thought processes. (e.) In the December 2002 psychiatry discharge note, the examiner stated the Veteran’s cognitive functioning was concerning. The examiner scheduled the Veteran for a cognitive exam that revealed a serve disability in learning and remembering new words (an isolated memory problem) and not multiple cognitive deficits c/w dementia. He can recall previously learned information and remote memory, but has significant difficulty recording new information without visual cues (uncertain retrograde amnesia?) The examiner noted that the Veteran’s history included that the Veteran suffered a CHI when he was in his twenties with vague neurological symptoms and a lengthy hospitalization which may be contributing. (f.) The Veteran’s memory was noted as (mod-severe). (g.) The Veteran’s representative contends that the Veteran’s service-connected residuals of traumatic brain injury (TBI), to include headaches, intermittent dizziness, and fatigue are the cause of his symptoms because his symptoms prior to entering the Army did not prevent him from entering the Army. 3. Send the Veteran appropriate notices regarding the requirements for obtaining SMC aid and assistance and request that the Veteran provide descriptions of the types and frequency of personal assistance he requires. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). 5. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.