Citation Nr: 21029806 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-28 214 DATE: May 17, 2021 REMANDED Entitlement to an initial compensable rating prior to October 21, 2019, and in excess of 40 percent thereafter, for service-connected traumatic brain injury (TBI) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1966 to October 1966. This appeal was previously before the Board in October 2020, at which time the Veteran's claim of entitlement to initial compensable rating prior to October 21, 2019, and in excess of 40 percent thereafter, for service-connected TBI, and entitlement to a TDIU were remanded to the agency of original jurisdiction (AOJ). As will be discussed in greater detail below, the Board finds that there has not been substantial compliance with the October 2020 remand directives such that another remand is once again is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). In connection with the development ordered in the October 2020 remand, the AOJ issued a rating decision in February 2021 awarding service connection for adjustment disorder with anxiety associated with service-connected TBI, and an initial 30 percent disability was assigned, effective August 27, 2013. A 70 percent disability rating was assigned, effective January 12, 2021. In the October 2020 remand, the Board directed the AOJ to associate with the Veteran's claims file any outstanding VA treatment records from the VA Eastern Colorado Healthcare System; the VA clinic in Victoriaville, California; and the VA Medical Center in Loma Linda, California. Thereafter, however, there is no indication that the AOJ attempted to obtain any updated treatment records from the sources identified or that updated record were otherwise unavailable. As such, to ensure substantial compliance with the Board's October 2020 remand, another remand is necessary so that any outstanding VA treatment records from the VA Eastern Colorado Healthcare System; the VA clinic in Victoriaville, California; and the VA Medical Center in Loma Linda, California can be associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding records pertinent to any of his claims on appeal. Furthermore, while VA examinations addressing the nature and severity of the Veteran's service-connected TBI and adjustment disorder with anxiety were obtained in January 2021, the Board finds that an addendum in necessary to clarify internal contradictions within the examination reports. Specifically, in the assessment of facets section of the TBI examination, the examiner indicated that there was a complaint of mild memory loss (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or findings word, or often misplacing names), attention, concentration, or executive functions, but without objective evidence on testing. The boxes relating to objective evidence on testing of a mild, moderate, or severe memory impairment were not marked. Later in the examination report under neurobehavioral effects, the examiner indicated that the Veteran's neurobehavioral effects included mild memory loss. Thereafter, however, the examiner stated, "The TBI is causing . . . severe memory problems." In the VA mental disorders examination report, the examiner repeated the TBI examiner's finding that "[t]he TBI is causing... severe memory problems." Thereafter, however, the examiner indicated that the Veteran's symptoms included mild memory loss, such as forgetting names, directions, or recent event; but also impairment of short and long term memory, for example retention of only highly learned material, while forgetting to complete tasks. On remand, further clarification concerning the Veteran's level of memory impairment is necessary. Finally, as noted in the October 2020 remand, entitlement to a TDIU has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and the issue is part and parcel of the Veteran's claims for higher initial ratings. As such, given the need to remand his claims for higher ratings for his service-connected TBI and adjustment disorder with anxiety, the Board will defer consideration for the Veteran's claim for a TDIU at this time, as these issues are inextricably intertwined with each other. See Parker v. Brown, 7 Vet. App. 116 (1994) and Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the Veteran's claim for the second issue). The Board notes that the Veteran again did not respond to the AOJ's request that he complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Given the need for further remand, the Veteran should be given another opportunity to complete and return a VA Form 21-8940. The matters are REMANDED for the following action: 1. Request that the Veteran complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. In this regard, the Veteran should be requested to provide an employment and income history from October 2012 to the present. 2. Associate with the Veteran's claims file any outstanding VA treatment records from the VA Eastern Colorado Healthcare System, the VA clinic in Victoriaville, California, and the VA Medical Center in Loma Linda, California. If not such records exist, please indicate as much in the record. 3. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 4. After any outstanding records have been associated with the claims file, return the claims file to the examiner who conducted the January 2021 VA TBI examination (or to another qualified medical professional if the January 2021 examiner is unavailable), to provide a response to the question posed below. The record must be made available for the examiner's review. The need for an additional examination is left to the discretion of the medical professional selected to write the addendum opinion. The entire claims file must be made available to, and reviewed by the examiner, and the examination report should include discussion of the Veteran's pertinent health history and assertions. With regard to the level of memory impairment caused by the Veteran's service-connected TBI, the examiner should indicate whether it is at least as likely as not that there is evidence of (a) a complaint of mild loss of memory, attention, concentration, or executive functions, but without objective evidence on testing; (b) objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment; (c) objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; or (d) objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment? If the examiner determines that the Veteran experiences a level of memory impairment that is less than severe, the examiner must address the clinical significance of the January 2021 VA examination report's conclusion that the Veteran's TBI was "causing... severe memory problems," and any determination contrary to that conclusion must be thoroughly explained. In addressing such inquiries, the examiner should take into consideration all of the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles and objective medical findings. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. (Continued on Next Page) 5. Thereafter, and after any further development deemed necessary, the issues on appeal should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Springer, 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.