Citation Nr: 21010392 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 20-06 885 DATE: February 24, 2021 ORDER Service connection for traumatic brain injury (TBI) residuals is granted. A total disability rating based on individual unemployability due to service-connected disabilities from September 13, 2020 is granted. Special monthly compensation (SMC) under 38 U.S.C. § 1114(s) from September 13, 2020 is granted. REMANDED A compensable rating for service-connected left arm neuropathy and post-herpetic neuralgia is remanded. FINDINGS OF FACT 1. The rating decision on appeal conceded a history of blast exposure in Iraq with head trauma and loss of consciousness. However, its conclusion that the Veteran had no current TBI residuals is based on an inadequate April 2014 VA examination report that failed to provide much substantive explanation for finding that the Veteran did not meet the criteria for TBI residuals. 2. Notably, an August 2013 letter from a VA polytrauma nurse practitioner confirms a diagnosis for “Remote Mild Traumatic Brain Injury.” It also noted reports of worsening symptoms over time that coincides more with the worsening of other issues (e.g., “poor sleep, headaches, and depression given the nature of the injury”). Moreover, the Veteran has provided competent and credible lay evidence (including in sworn testimony) that her already service-connected migraines and visual field defects all began following the conceded head injury in service. 3. Absent any persuasive evidence to the contrary, the Board finds the probative evidence of record is at least in relative equipoise as to whether the Veteran has TBI residuals related to the conceded injury in service. 4. The Veteran’s TDIU appeal is from an April 2013 claim filed within the first post-service year and, therefore, the Board will consider whether TDIU was warranted since the day following discharge. The record shows the Veteran has been rated 90 percent disabling from the day following military discharge, with her service-connected psychiatric and migraine headache disabilities rated 50 percent disabling each. Therefore, she clearly meets the schedular TDIU criteria under 38 C.F.R. § 4.16(a) since the day following discharge. 5. Moreover, medical evidence of record corroborates her competent sworn testimony that she has severe service-connected impairment that has significantly disrupted her occupational functioning ever since service. VA already concedes that her service-connected migraines have been commensurate with severe economic inadaptability based on its 50 percent rating since discharge. December 2012 private medical records show she was involuntarily hospitalized due to psychiatric distress from major depressive disorder, including suicidality, just three months after discharge. Absent evidence clearly indicating that symptoms or impairment from this nonservice-connected diagnosis can be differentiated from her service-connected psychiatric condition, Mittleider v. West, 11 Vet. App. 181, 182 (1998) holds that the Board must consider this evidence in the present analysis 6. The Veteran’s sworn testimony indicates she has been unable to maintain consistent employment as a result of service-connected impairments (including from migraine headaches and psychiatric distress) since discharge. Even when she has had work, she indicates that she has never been without significant accommodations (e.g., flexible telework). 7. VA examinations before discharge show service-connected pathology that, on its face, would present significant challenges with maintaining consistent attendance and quality at any job (e.g., visual field impairment that cause objects in her peripheral vision to “come from nowhere”). Perhaps most notably, however, a June 2012 physical evaluation board before discharge found her migraine headaches, psychiatric disability, and left shoulder disability each rendered her “unable to reasonably perform the duties of her [military occupational specialty]” as a supply specialist. 8. It does not appear from a review of the record that the Veteran has since obtained significant experience or training in other fields that would allow her to diversify her search for work. Notably, she testified that her limited post-service full-time work experience has been in supply, that she was only able to obtain an Associate’s degree with significant accommodation, and that she was unable to complete a Bachelor’s degree. 9. Consequently, the Board finds the evidence is also at least in relative equipoise as to whether the Veteran’s service-connected disabilities caused impairment inconsistent with obtaining or following substantially gainful employment (i.e., in an unsheltered environment and consistent with her experience and education level) ever since military discharge. 10. Moreover, given VA already conceded that her service-connected migraines have been productive of severe economic inadaptability since discharge and her pre-discharge evaluations are consistent with that finding (insofar as her migraines alone were felt to preclude reasonable performance of her occupational duties), the Board also finds the evidence reasonably shows that the migraines alone could support the above award. The Veteran also has separately service-connected disabilities (i.e., psychiatric disability, visual field defects, left shoulder disability, neck disability, tinnitus, sinusitis, allergic rhinitis, and left arm neuropathy) that combine to at least a 60 percent rating without considering her headaches. Therefore, the criteria for SMC under 38 U.S.C. § 1114(s) are also met since military discharge. CONCLUSIONS OF LAW 1. The criteria for service connection for TBI residuals are met. 38 U.S.C. §§ 1110, 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.303(b) (2020). 2. The criteria for TDIU from are met from September 13, 2012. 38 U.S.C. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25 (2019). 3. The criteria for SMC under 38 U.S.C. § 1114(s) are met from September 13, 2012. 38 U.S.C. §§ 1114 (s), 1155, 5107(b) (2018); 38 C.F.R. § 3.350(h)(3)(i) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1989 to September 1991, May 2004 to July 2004, and April 2006 to September 2012. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision appealed in a timely May 2015 notice of disagreement (NOD) and perfected by a timely February 2020 substantive appeal in response to a January 2020 statement of the case (SOC). In January 2021, a hearing was held before the undersigned. For the reasons outlined above, the Board grants service connection for TBI residuals and TDIU and SMC under 1114(s) from the earliest possible effective date, obviating any need for further detailed discussion thereof at this time. (CONTINUED ON NEXT PAGE)   REASONS FOR REMAND 1. A compensable rating for service-connected left arm neuropathy and post-herpetic neuralgia is remanded. The Veteran’s left arm neuropathy and post-herpetic neuralgia has not been evaluated in conjunction with this appeal since April 2014, and the examiner at the time indicated there was no peripheral nerve disability. The Veteran recently testified that she experiences symptoms of left arm nerve damage that are intermittently recurrent and remitting. As a current disability picture is crucial to accurately rating the claimed disability, a contemporaneous examination is needed. The matters are REMANDED for the following action: 1. Obtain all updated records (i.e., those not already of record) of VA and adequately identified private treatment the Veteran has received for the disabilities remaining on appeal. 2. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by a neurologist or other appropriate physician to determine the current severity of her service-connected left arm neuropathy and post-herpetic neuralgia. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE HISTORY AND REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF HER AND HOW IT VARIES DURING FLARE-UPS OR OTHER CIRCUMSTANCES), review of the record, and any tests or studies deemed necessary, the examiner should describe all pathology, symptoms (frequency and severity), and functional impairment associated with such disabilities in enough detail to allow for application of the pertinent rating criteria. The examiner should note that, if the Veteran’s claimed symptoms are not directly observable at the time, evaluations should be made to the best of their ability based on her own reports, particularly given the condition is apparently intermittently recurring and remitting. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.