Citation Nr: 21028115 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-32 414 DATE: May 10, 2021 ORDER Entitlement to a separate increased disability rating of 30 percent, but no higher, for migraine headaches associated with residuals of a traumatic brain injury (TBI), prior to November 8, 2018, is granted. Entitlement to a separate increased disability rating of 50 percent, but no higher, for migraine headaches associated with residuals of a TBI, since November 8, 2018, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), bipolar disorder, borderline personality disorder, and anxiety disorder not otherwise specified with features of phobia and obsessive-compulsive disorder, is remanded. Entitlement to an initial rating in excess of 40 percent for a TBI with dizziness is remanded. FINDINGS OF FACT 1. Prior to November 8, 2018, the probative evidence of record demonstrates the Veteran's migraine headache symptoms, associated with residuals of a TBI, more closely resemble characteristic prostrating headaches occurring on average of once a month over the last several months. 2. Since November 8, 2018, the probative evidence of record is at least in relative equipoise that the Veteran suffers symptoms of migraine headaches, associated with residuals of a TBI, with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The probative evidence of record is at least in relative equipoise that the Veteran is unable to obtain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement a separate increased disability rating of 30 percent, but no higher, for migraine headaches associated with residuals of a traumatic brain injury (TBI), prior to November 8, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code (DC) 8100. 2. The criteria for entitlement to a separate increased disability rating of 50 percent, but no higher, for migraine headaches associated with residuals of a TBI, since November 8, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.124a, DC 8100. 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy on active duty from August 1986 to August 1990. The issue comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The issues regarding the claims for service connection for an acquired psychiatric disorder and the rating assigned for the Veteran's TBI with residuals were previously before the Board in July 2018. The Board remanded to obtain outstanding records and to provide a VA examination to address the Veteran's diagnosed psychiatric disorders and service-connected TBI. In a May 2019 rating decision, the RO granted a separate initial 30 percent disability rating, since November 8, 2018, for migraine headaches associated with the Veteran's TBI. The separate migraine headaches rating is included within the scope of the TBI rating on appeal. Accordingly, the period on appeal for the claim of an increased rating for the Veteran's migraine headaches begins on April 16, 2013, the date of service connection for the Veteran's TBI. As the full benefit was not granted, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In May 2020, the Board denied the Veteran's claims for entitlement to a separate compensable rating for migraine headaches, associated with residuals of a TBI with dizziness, prior to November 8, 2018; and to a rating in excess of 30 percent for migraine headaches, associated with residuals of a TBI, since November 8, 2018. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2020, the Court granted a Joint Motion for Partial Remand (JMPR). The Court found that the Board failed to provide adequate reasons and bases for its assessment of relevant evidence in its denial of the Veteran's claims. Pursuant to the JMPR, the Court vacated and remanded the matters to the Board. Increased Rating VA has adopted the Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The Board determines the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 C.F.R. § 4.10. The degrees of disabilities are based on the average impairment of earning capacity and individual disabilities are assigned diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various percentage ratings for each disability and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where there is a question of which of two ratings should be applied, the higher rating will be assigned if the disability assessment more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). TDIU A total disability rating based upon individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran's age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). When a veteran files a claim for an increased rating, the veteran is presumed to be seeking the maximum benefit under any applicable theory, to include the entire period on appeal for a claim of TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). 1. Entitlement to a separate increased disability rating of 30 percent, but no higher, for migraine headaches associated with residuals of a TBI, prior to November 8, 2018 The Veteran contends that he suffers from migraine headaches as a result of his in-service TBI, which warrants a compensable disability rating prior to November 18, 2018. The Veteran's headaches are rated under DC 8100 for Migraines. Under DC 8100, a noncompensable rating is given for less frequent attacks. A 10 percent rating is assigned for headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for headaches with characteristics of prostrating attacks occurring on average once a month. A 50 percent disability rating is provided for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. The Veteran's VA treatment records include a May 2013 VA pain management consultation, which noted the Veteran complained of suffering debilitating posterior headaches with photophobia and phonophobia that suddenly occur twice a day for 1 to 2 times a week, causing irritability. Additionally, the treatment record noted the Veteran complained of occipital neuralgia of variable frequency, occurring 3 times a week or every other month. The Veteran reported that his headaches would wake him from a sound sleep. The record noted the variability of the Veteran's headaches. The Veteran reported intense debilitating headaches, noting that he may go weeks without symptoms and sometimes experienced symptoms 5 times a week. The Veteran underwent a VA examination in June 2013. The VA examiner confirmed the Veteran's diagnosis of migraine headaches. The VA examination reported that the Veteran experienced headaches every 2 months, with pain rated by the Veteran as 7 to 8 out of 10. During the onset of headaches, the Veteran experienced occasional nausea, and some phonophobia. The Veteran described the headaches as crushing pain; however, the VA examiner reported the Veteran's headaches as not too severe or prostrating. The examiner noted the Veteran's migraines as relatively infrequent headaches related to the Veteran's TBI that occurred every two months. The record contains the Veteran's VA interdisciplinary care planning note from October 2014. The record notes the Veteran is generally functional with tasks of average daily life, but the Veteran's severe headaches can be debilitating, causing the Veteran to need assistance from his girlfriend. The Veteran submitted an affidavit in September 2016. The Veteran reported suffering migraine headaches at a variable frequency. He noted sometimes experiencing migraine headache symptoms up to three times a week, that can last from ten minutes to a couple of hours. He noted that during his headaches his eyes will physically hurt. The Veteran reported that he takes asprin to relieve his headaches and is forced to go lie down in a dark room with the blinds closed. Here, the Board finds that an initial rating of 30 percent, but no higher, is warranted under 38 C.F.R. § 4.124a, DC 8100. Although the evidence of record demonstrates the Veteran's headaches occur in varying frequencies, and the Veteran's accounting of characteristic symptoms of prostrating migraine headaches is not reported for each headache, the evidence of record suggests the Veteran experienced at least one debilitating headache per month, which impacted the Veteran's daily activities and forced him to lie down in a dark room to relieve his symptoms. Further, the Veteran's descriptions of his headache pain as crushing, and his credible lay accounts of his need to rest in a dark room to alleviate his headache symptoms, demonstrate the Veteran's prostrating migraine symptoms. The Board acknowledges that as a lay person, the Veteran is competent to provide probative opinions on certain subjective medical issues and of observable symptomatology. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds the evidence of record, as a whole, supports a finding that the Veteran suffered migraine headaches with characteristic prostrating attacks occurring on average once a month prior to November 8, 2018. Thus, due to the frequency and severity of his headaches, the Board finds that a rating of 30 percent, but no higher, is warranted. 38 C.F.R. § 4.124a, DC 8100. The Board notes that a rating in excess of 30 percent prior to November 8, 2018 is not warranted. The record does not show that the Veteran's headaches during this period were noted as migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The medical and lay evidence of record noted the Veteran could go long periods of time without debilitating prostrating attacks of migraine headache symptoms. The Veteran reported the variable sudden nature of his presented headaches which could last 10 minutes or up to 2 hours. Therefore, a 50 percent rating prior to November 8, 2018 is not warranted. See 38 C.F.R. § 4.124a, DC 8100. 2. Entitlement to a separate increased disability rating of 50 percent, but no higher, for migraine headaches associated with residuals of a TBI, since November 8, 2018 The Veteran contends that his migraine headaches manifested as symptoms warranting a disability rating in excess of 30 percent, since November 18, 2018. The record includes the Veteran's October 2018 primary care note that reported the Veteran complained of headaches since 1991 which were aggravated for the past year. Additionally, the Veteran's VA neurology consultation from October 2018 noted the Veteran's headaches had worsened in frequency and severity and had become "more difficult." The Veteran received botulinum toxin (Botox) injection treatments for his migraine headaches in January 2019. In January 2019, the Veteran's VA primary care provider noted the Veteran had a history of "sharp, stabbing, occipital, severe, on and off" headaches, which had worsened over the past year. The Veteran underwent a VA headache examination in November 2018. The VA examiner confirmed the Veteran's diagnosis of migraine headaches. The Veteran noted he experienced headaches 2 to 3 times per week. The Veteran described the symptoms as a squeezing feeling like his "head is in a vice." He noted the headaches are preceded by queasiness and may accompany blurred vision, excessive sweating, light and noise intolerance, and nausea with no vomiting. The Veteran rated the pain as usually 7 to 8 out of 10, but noted it could be worse. The Veteran reported that the headaches usually last around 2 to 3 hours, but the range varies from 1 to 6 hours. The Veteran typically lies in a dark quiet room and takes medication to gradually improve his headaches. The Veteran noted every time he experienced a headache, he needed to stop what he is doing. The November 2018 VA examiner noted the Veteran's symptoms as nausea, sensitivity to light and sound, and changes in vision (such as scotoma flashes of light, and tunnel vision), which occurred in duration of less than a day. The VA examiner noted the Veteran had characteristic prostrating attacks of migraine headaches once every month. The examination provided that the Veteran's headache condition negatively impacted the Veteran's ability to work. The examiner noted the Veteran was forced to leave work early or miss work approximately 4 to 10 days a month due primarily to his headaches. Occasionally during months with fewer headaches, the Veteran missed only 2 to 3 days a month. The RO provided the Veteran with a VA evaluation of residuals of his TBI in August 2019. The VA examiner confirmed the Veteran's diagnosis of migraine headaches. The Veteran noted the Botox treatments improved his headache symptoms. He noted he had headaches 2 to 3 times a week. The examiner noted the Veteran's symptoms as nausea, sensitivity to light and sound, and changes in vision (such as scotoma flashes of light, and tunnel vision), occurring in duration of less than a day. The VA examiner noted the Veteran had characteristic prostrating attacks of migraine headaches once every month. The VA examiner noted the Veteran's headache condition required work accommodations for retiring to a dark quiet room upon demand. The Veteran submitted a vocational assessment dated in January 2020. The private vocational consultant reviewed the Veteran's claims file and conducted a phone interview with the Veteran and his significant other. During the interview the Veteran expressed that his TBI-related headaches continued to increase in severity since he described his symptoms in his September 2016 affidavit and the VA examinations held in November 2018 and August 2019. The Veteran reported that he experienced on average 3 to 5 unpredictable, fully disabling migraine headaches per week. The headache symptoms lasted an average of at least 10 minutes to two hours, with debilitating effects on energy and concentration levels lasting several hours after each attack. The Veteran reported that he must lie flat in a completely darkened and noiseless room. He noted that he was not able to think or concentrate during these headaches. The private vocational expert opined that the Veteran's migraine headaches are capable of resulting in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The examiner rationalized that the Veteran's need to retire to a darkened room and lie flat implies that his migraines cause at least a significant occupational deficit, which she opined was totally disabling. The Board notes that although the Veteran's VA examinations noted the frequency, on average, of prostrating attacks as occurring once every month, his treatment records show consistent complaints of frequent worsening headaches with prostrating and prolonged attacks. Additionally, the Board acknowledges the Veteran's vocational expert's January 2020 statement noting severe economic inadaptability. The evidence of record supports a finding that the Veteran's worsened headache condition, since November 8, 2018, resulted in frequent prostrating and prolonged attacks of migraine headache symptoms, which interrupted the Veteran's daily activities and forced him to retire to a darkened quiet room. Having found the Veteran's migraine headache symptoms meet the frequency and duration criteria for a 50 percent disability rating under DC 8100, the Board also finds the Veteran's private vocational assessment to be probative evidence that the Veteran's headache condition is capable of producing severe economic inadaptability. 38 C.F.R. § 4.124a, DC 8100. Therefore, the Board finds the Veteran is entitled to the maximum disability rating under 38 C.F.R. § 4.124a, DC 8100. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) Entitlement to a TDIU, including on an extraschedular basis, has been raised in the context of the Veteran's increased rating claims. The Veteran contends that his service-connected disabilities, to include TBI with dizziness, migraine headaches associated with his TBI, bilateral hearing loss, and tinnitus, have rendered him unable to obtain and maintain substantially gainful employment. As the Board granted an increase for the Veteran's claim for a compensable rating for migraine headaches prior to November 8, 2018, the Veteran now meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a) for the entire appeal period, as the Veteran has a 40 percent rating for his service-connected residuals of a TBI with dizziness, 30 percent rating for migraine headaches associated with residuals of a TBI prior to November 8, 2018, and 50 percent rating for migraine headaches since November 8, 2018, 10 percent rating for tinnitus, and a noncompensable rating for bilateral hearing loss. The Veteran's service-connected disabilities are considered one disability under 38 C.F.R. § 4.16, as the Veteran's disabilities resulted from a common etiology or a single accident. Id. Therefore, the issue of entitlement to TDIU turns on whether the Veteran's service-connected disabilities impair him from securing and maintaining substantially gainful employment. Here, the evidence of record supports such a finding. The evidence of record shows that the Veteran completed two years of college. The Veteran reported working in a variety of jobs after service, to include reserve police officer, animal control officer, blackjack dealer, general sales manager, and various managerial jobs. He last worked fulltime in 2007, as a regional manager of furniture store. As indicated above, the Veteran submitted an affidavit in September 2016. The Veteran noted the brain injury he sustained in the Navy caused lasting effects that interfered with his ability to work. The Veteran noted symptoms of his TBI, such as dizziness and short-term memory loss, and migraine headaches affected his ability to perform his tasks of his former employment. The Veteran noted that he experienced migraines up to 3 times a week that could last 10 minutes to 2 hours. The Veteran stated the pain of his headaches would force him to take time off and leave work. Additionally, the Veteran noted the medication prescribed to manage his migraine symptoms made him drowsy and lethargic. The Veteran also claimed his tinnitus and hearing loss significantly affected his ability to perform his duties. He noted wearing a hearing aid at work but still having difficulty hearing and understanding coworkers. As stated above, the Veteran underwent a private vocational assessment in January 2020. Following a review of the Veteran's claims file and an interview with the Veteran and his significant other, the private vocational expert concluded that the Veteran was more likely than not unable to secure and follow substantially gainful employment as a result of his service-connected residuals of a TBI with dizziness and migraine headaches. The vocational assessment addressed the Veteran's occupational limitations resulting from his service-connected TBI. The vocational expert noted the Veteran's November 2018 VA examination report, in which the Veteran stated he randomly experienced nausea and dizziness about twice per week. The Veteran noted that during these times the Veteran was forced to stop what he was doing until the symptoms ceased. The vocational assessment noted that the November 2018 VA examiner reported the Veteran's disabilities more likely than not reduced the Veteran's efficiency with any type of work, but probably did not preclude him from all types of work. The VA examiner noted the Veteran would need brief breaks from work to relieve his symptoms. The vocational assessment acknowledged the Veteran's August 2019 VA hearing and ear condition examination, which stated that if the Veteran became dizzy while driving, he had to pull over. The private vocational expert noted the Veteran's headache disorder required workplace accomodation for retiring to a dark room when he experiences a debilitating migraine. The Veteran's private vocational assessment provided the opinion that the Veteran's frequent and severe headaches due to his service-connected TBI would result the need to be "off task", without warning, from 6 to 10 hours per week. The vocational expert stated that this amount of "off task" behavior is inconsistent with the basic demands of any full-time competitive employment. The Veteran's need to be "off task" for an average of 2 hours at a time amounts to being non-productive for a quarter of each work period. The private vocational expert opined that the lapse in productivity brought on by his service-connected disabilities rendered the Veteran unfit for productive competitive employment of any kind. The vocational expert noted the Veteran's TBI-related concentration issues, memory loss, and dizziness would contribute to the Veteran's "excessive time spent off task." The January 2020 vocational consultant opined that a sustained consistent reduction in efficiency would not be tolerated in any employment regardless of skill or exertional level and would likely lead to termination. Finally, the vocational assessment concluded that the Veteran's service-connected disabilities would amount to 4 to 10 absences per month. The vocational expert opined that employers typically do not tolerate absences of more than one day per month on a regular basis. The Veteran's reported absenteeism would lead to termination. Thus, the Veteran's private vocational assessment concluded the Veteran's TBI-related migraine headaches and his TBI residual symptoms, including dizziness, resulted in the Veteran's total unemployability. The Board finds the evidence of record as a whole demonstrates the Veteran's service-connected disabilities prevent him from securing and maintaining substantial employment. The January 2020 private vocational assessment is probative evidence that the Veteran's service-connected migraine headaches and TBI residual symptoms cause excessive "off task" and work absences as to bar the Veteran from substantial employment. The private vocational expert provided a definitive opinion supported by a fully articulated rationale with citations to the medical evidence of record. See Prejean v. West, 13 Vet. App. 444 (2000); see also Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board recognizes the Veteran's VA examinations contained functional assessments of the Veteran's occupational limitations from his service-connected disabilities, which did not find the Veteran to be totally unemployable. However, the January 2020 private vocational assessment, when viewed with the Veteran's competent lay evidence of his symptomatology and work history, puts the evidence in at least relative equipoise on this matter. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, by law the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154(b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Thus, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, bipolar disorder, borderline personality disorder, and anxiety disorder not otherwise specified with features of phobia and obsessive-compulsive disorder, is remanded. The Board remanded the Veteran's claim to service connection for an acquired psychiatric disorder in May 2020. Notably, the Board remand directives instructed the RO to obtain a medical opinion addressing whether clear and unmistakable evidence showed the Veteran's acquired psychiatric disorder existed prior to service. Here, the May 2020 VA examiner failed to provide a medical opinion as to whether the evidence showed the Veteran's acquired psychiatric condition existed prior to service. The May 2020 restatement of the requested opinion stated, "state whether the Veteran's medical records support that the claimed psychiatric disorder, to include PTSD, bipolar disorder, unspecified anxiety disorder and major depressive disorder, which clearly and unmistakably existed prior to service was aggravated beyond its natural progression by an in-service illness, event, or injury." A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. Id. As such, the Board finds that this claim is not ready for appellate review and must be remanded for compliance with the May remand instructions. A medical opinion is required to address whether clear and unmistakable evidence shows the Veteran's acquired psychiatric disorder, to include PTSD, bipolar disorder, borderline personality disorder, and anxiety disorder not otherwise specified with features of phobia and obsessive-compulsive disorder, existed prior to active duty service. Additionally, the May 2020 VA medical opinion is inadequate to adjudicate the Veteran's claim. The May 2020 VA examination failed to address whether clear and unmistakable evidence showed the Veteran's acquired psychiatric condition was not aggravated during or as a result of active duty service. Clear and unmistakable evidence is evidence that cannot be misinterpreted or misunderstood. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Remand is required to provide a medical opinion accurately addressing the clear and unmistakable standard required to address aggravation of a preexisting condition. Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). Moreover, the VA opinion failed to address the lay evidence of record, submitted by the Veteran and fellow service members, which all noted significant changes in the Veteran's behavior following the suicide of a friend and crewmate, and after sustaining a severe brain injury in service. VA must consider all medical and lay evidence of record. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). Accordingly, remand is required to provide an adequate medical opinion addressing the Veteran's symptoms of a psychiatric disorder incurred during service. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 2. Entitlement to an initial rating in excess of 40 percent for a traumatic brain injury with dizziness (TBI) is remanded. In May 2020, the Board remanded the Veteran's claim for an increased rating for TBI, as the claim is inextricably intertwined with the Veteran's claim for service connection for an acquired psychiatric disorder. The required medical opinion addressing the Veteran's mental health symptoms may be relevant to the overlapping comorbid residual symptoms of the Veteran's service-connected TBI. As the remand required to address the Veteran's claimed psychiatric disorder may cause substantial effect on the merits of the Veteran's TBI increased rating claim, consideration of the Veteran's TBI claim must again be deferred pending completion of the Veteran's acquired psychiatric disorder service connection claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. Send the claims file to an appropriately qualified clinician for an opinion as to whether any acquired psychiatric disorder, present during the period on appeal, existed prior to active duty service. If the examiner deems it necessary, afford the Veteran a VA examination. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Following a review of the entire record, including all available lay statements and medical treatment records, the examiner should opine as to the following: a. Is it clear and unmistakable (obvious or manifest) that the Veteran entered active military service with a pre-existing psychiatric disorder, PTSD, bipolar disorder, borderline personality disorder, and anxiety disorder not otherwise specified with features of phobia and obsessive-compulsive disorder? b. If YES, is it clear and unmistakable (obvious or manifest) that the Veteran's psychiatric disorder WAS NOT aggravated by the Veteran's active military service? In other words, please determine whether it is clear and unmistakable that there was NO increase in disability during service. If the examiner finds that NO clear and mistakable (obvious or manifest) evidence shows that either (a) the Veteran entered active service with a pre-existing psychiatric disorder, OR (b) the Veteran's psychiatric condition WAS NOT aggravated, then for the purposes of this examination the Veteran must be presumed to be sound on enrollment into active service. c. If the answer to either (a) or (b) is NO, the examiner must provide a medical opinion to whether it is at least as likely as not (50 percent probability or more) that the Veteran's current psychiatric disorder had its onset in, or is otherwise related to his active military service. d. If the examiner confirmed the Veteran's diagnosis of a personality disorder, the examiner shall opine whether it is at least as likely as not (50 percent probability or greater) that the personality disorder was subject to a superimposed acquired psychiatric disability during active duty service. e. If there is a diagnosis of personality disorder and a diagnosis of an acquired psychiatric disability, and both are considered to have occurred during service, the examiner shall opine as to whether it is possible to differentiate the manifestations of such conditions. The examiner must provide a comprehensive report, including a clearly stated rationale for any opinions offered and conclusions reached, citing the objective medical findings leading to the conclusions, and must not be based solely on the lack of records. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.V. Bona, 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.