Citation Nr: 21028184 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-26 738 DATE: May 10, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 18, 2012 is remanded. REASONS FOR REMAND These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In a March 2018 decision, the Board denied entitlement to an initial disability rating in excess of 10 percent for a TBI and denied entitlement to TDIU prior to September 18, 2012. In August 2019, the United States Court of Appeals for Veterans Claims (Court) vacated the March 2019 Board decision and remanded these matters for readjudication. In March 2020 and December 2020, the Board remanded the matters for further development. The matters have returned to the Board. 1. Entitlement to an initial disability rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. When the Board's remand requests are not satisfied, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Although the Board regrets the additional delay, further development of the record is required before the Board may render a decision in the instant case. When VA undertakes to provide an examination or opinion, it must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In its March 2020 remand, the Board found that the December 2011 and April 2012 VA examinations were inadequate and ordered that the Veteran be provided a new VA examination to assess his TBI, including a full description of the disability and all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner was instructed to address the Veteran's lay contentions in an August 2010 statement in support of claim, his May 2013 Notice of Disagreement (NOD) and his September 2013 Form 9. In response to the remand, the Veteran was afforded a VA headache examination in April 2020, a TBI examination in August 2020, and a PTSD examination in October 2020. In its December 2020 remand, the Board noted the Veteran's argument that none of the examination reports specifically addressed the Veteran's lay contentions. The Board ordered that the three examination reports should be returned to the VA examiner that authored each for the purpose of obtaining addendums to the examination reports. The Board stated that if any examiner was unavailable, the file should be provided to another appropriate examiner for an opinion to be obtained. In response to the remand, the AOJ sent the Veteran's file for review by two new examiners. The record does not reflect that the AOJ attempted to obtain addendum examination opinions from the examiner who conducted the Veteran's April 2020 headache examination, August 2020 TBI examination, or October 2020 PTSD examination. The February 2021 opinion obtained does not discuss the Veteran's lay statements as the reviewer opined that the Veteran does not have a current TBI. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 18, 2012 is remanded. The disability evaluation assigned for the Veteran's TBI may impact the Veteran's claim of entitlement to a TDIU. Therefore, a decision on the claim for entitlement to a TDIU will be deferred. See Harris v. Derwinski, 1Vet. App.180 (1991). The matters are REMANDED for the following action: Return the April 2020 VA headaches, August 2020 TBI and October 2020 psychiatric examination reports to the examiner that conducted each examination for the purpose of obtaining addenda to the examination report. If any examiner is not available, the claims file must be available to another appropriate examiner for the requested opinions. The entire claims file, to include all electronic files, must be reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should describe any residual manifestations of TBI by the facets of cognitive impairment, including: memory, attention, concentration, and executive functions; judgment; social interaction; orientation; motor activity; visual spatial orientation; subjective symptoms; neurobehavioral effects; communication; and consciousness set forth in 38 C.F.R. §4.124a. With respect to evaluating cognitive impairment, the examiner should consider whether additional testing of memory, attention, concentration, and executive functions is needed or discuss what existing evidence is of record as to whether there is or is not objective of cognitive impairment. With respect to headaches, the examiner should document the current symptomatology described by the Veteran and the severity, frequency, and duration at which such symptoms manifest. The examiner's attention invited to VA treatment records dated January 14, 2009, September 17, 2009, February 2, 2010, September 7, 2010, June 3, 2011, March 21, 2012, and September 4, 2013. The examiner must address the veteran's lay contentions in the August 2010 statement in support of claim, the May 2013 Notice of Disagreement (NOD) and the September 2013 Form 9. If the examiner finds that another physical or psychiatric examination of the Veteran is necessary to provide any requested opinion, the Veteran should be scheduled for the necessary examination(s). The addendum report must include a complete rationale for any opinions expressed. If the examiner feels that any requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts or tests are required, or the examiner does not have the needed knowledge or training). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.