Citation Nr: 21013343 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-63 398 DATE: March 9, 2021 REMANDED Entitlement to an initial compensable rating for service-connected traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based upon unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served in the United States Marines from January 1974 through September 1975. In April 2020, the Veteran and his wife testified before the undersigned Veteran’s Law Judge (VLJ). A transcript of this hearing has been associated with the claims file. At the hearing, the Veteran waived AOJ review of recently submitted evidence. 1. Entitlement to an initial compensable rating for service-connected TBI is remanded. The Veteran contends that he has residuals of a TBI that have existed since service and that his June 2013 stroke is actually part of those TBI residuals. The April 2014 examination reviewed the history of the injury that caused the TBI and the Veteran’s symptoms at the time of the examination, after the stroke. However, the examination did not obtain a description of the Veteran’s functioning prior to the stroke except to state that he worked for 22 years and did well at his job. The August 2014 addendum opinion clarified that the Veteran’s diminished functioning at the time of his VA examination was related to his stroke and not to residuals of a TBI. The Board finds that a remand is warranted to obtain a medical examination for several reasons. First, the Veteran, through his wife’s testimony, has asserted that his symptomology has worsened since the examination. Second, the Veteran has a difficult time expressing himself and his wife should be permitted to attend the examination with the Veteran to explain his past and present symptoms. Third, there is no medical evidence in the file documenting the Veteran’s pre-stroke functioning to determine what his functioning was prior to and at the time of the stroke. Finally, the VA examination and opinion did not address whether the stroke was caused or aggravated by the original injury that caused the TBI, to include whether the Veteran developed an aneurysm as a result. Further, on remand, VA treatment records prior to June 2013 should be obtained and the Veteran should be asked to complete a release to obtain any outstanding treatment records related to his pre-stroke functioning. 2. Entitlement to a TDIU is remanded. The Veteran has asserted that his service-connected TBI residuals have made it so he is unable to continue working. See May 2014, Notice of Disagreement. Therefore, entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 456 (2009) (holding that a claim for a TDIU is part of an increased rating claim when expressly raised by the Veteran or reasonably raised by the record). Given that the remanded issue above could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete VA treatment record. 2. Ask the Veteran to complete a VA Form 21-4142 for any private physicians that treated him prior to his June 2013 stroke. If returned, make two requests for the authorized records from unless it is clear after the first request that a second request would be futile. 3. Thereafter, obtain an examination from a qualified medical professional, such as a neurologist, to determine the nature, etiology, and current symptomology of the Veteran’s TBI and post-CVA residuals. The examiner should review a copy of this remand order and the medical record in rendering an opinion. If the Veteran has difficulty communicating, the examiner should permit the Veteran’s wife to answer questions to provide his pre-and-post-CVA functioning. The examiner should elicit a history of the Veteran’s symptomology in each TBI domain prior to the June 2013 CVA. Thereafter, the examiner should answer the following questions: a. Is it possible to differentiate the Veteran’s post-TBI and post-CVA residuals? b. Is it at least as likely as not that the original assault that caused the Veteran’s TBI in September 1974 and/or post-TBI residuals caused or aggravated the development of an aneurysm that led to the June 2013 CVA. Put another way – is the stroke a residual of the TBI? Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected conditions. The examiner is asked to provide the underlying reasons for all opinions expressed, and is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issue on appeal, including the intertwined issue of entitlement to a TDIU. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.