Citation Nr: 21040153 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 14-24 435A DATE: July 2, 2021 REMANDED Entitlement to an initial, compensable disability rating for traumatic brain injury prior to September 14, 2020, and in excess of 10 percent, thereafter, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2004 to November 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision. In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A transcript of that hearing is of record. The Veteran's claim for an increased disability rating was remanded by the Board in June 2018. The above issues were remanded in June 2020 for further development. Following the June 2020 remand, a March 2021 rating decision assigned a 10 percent disability rating for the Veteran's service-connected traumatic brain injury, effective September 14, 2020. The rating decision also assigned a 10 percent disability rating for migraine headaches, effective September 14, 2020. As this rating decision represents partial grants of the benefits sought, the issues remain on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law). 1. Entitlement to an initial, compensable disability rating for traumatic brain injury prior to September 14, 2020, and in excess of 10 percent, thereafter, is remanded. The Veteran's claim for an increased rating for his traumatic brain injury was remanded by the Board in June 2020, in part, to obtain an examination to evaluate its current severity. The Board instructed the examiner conducting the examination to address the Veteran's assertion that his cognitive impairment, visual problems, and dizziness are related to his traumatic brain injury. The examiner was then directed to determine whether any of the Veteran's residuals of his traumatic brain injury have a distinct diagnosis as each is to be separately evaluated under the applicable diagnostic code. See 38 C.F.R. § 4.124a, Diagnostic Code 8045. Pursuant to the Board's remand, the Veteran was afforded a September 2020 Review Evaluation of Residuals of Traumatic Brain Injury (R-TBI) Disability Benefits Questionnaire. The examination report states that the Veteran has subjective symptoms of dizziness/vertigo attributable to a traumatic brain injury. A February 2021 Review Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire states that the Veteran's dizziness is related to his traumatic brain injury. Related, a September 2020 Ear Conditions (Including Vestibular and Infectious Conditions) Disability Benefits Questionnaire provides that the Veteran has traumatic brain injury associated dizziness. The examination report states that the Veteran has been diagnosed with hearing loss and tinnitus associated with noise exposure. The Veteran was noted to have vertigo that occurs one to four times per month with each episode lasting less than one hour. A September 2020 medical opinion provides that the Veteran does not have symptoms consistent with Meniere's disease. In support, the medical opinion states that symptoms of Meniere's disease include hearing loss and tinnitus, which are related to noise exposure. Additionally, the Veteran's "dizziness" is not consistent with room spinning, but light-headedness and sensitivity to heights. The Board finds that the September 2020 medical opinion is inadequate to properly rate the Veteran's residuals of his service-connected traumatic brain injury. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology). The medical opinion does not indicate whether the Veteran's dizziness is a distinct diagnosis that is related to his traumatic brain injury. The medical opinion also fails to consider whether the Veteran's reported vertigo is related to his traumatic brain injury. Therefore, a new examination is necessary. The record also indicates that there may be Social Security Administration records not associated with the Veteran's claims folder. In this regard, the Veteran's VA treatment records indicate that he is pursuing disability benefits administered by the Social Security Administration. When VA has actual notice of the existence of relevant Social Security Administration records, the duty to assist includes requesting those records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (finding that VA must seek to obtain relevant records under 38 U.S.C. § 5103A when "there exists a reasonable possibility that the records could help the veteran substantiate his claim for benefits"). Because Social Security Administration records are potentially relevant to the Board's determination in this case, VA must attempt to obtain and consider those records. Therefore, on remand, the Veteran's complete Social Security Administration records should be obtained. 2. Entitlement to a TDIU rating due to service-connected disabilities is remanded. Given that final adjudication of the above claim for an increased rating could result in additional evidence speaking to the Veteran's employability, the issue of entitlement to a TDIU rating is inextricably intertwined with the above claim being remanded herein, and the issues should be considered together. See 38 C.F.R. § 4.16(a); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from February 2021 to the present. 2. Obtain the Veteran's federal records from the Social Security Administration. Document all requests for information as well as all responses in the Veteran's claims folder. 3. Ask the Veteran to complete and return a VA Form 21-8940. 4. After the above development is completed, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his service-connected traumatic brain injury. The examiner must review the Veteran's claims folder. 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. (Continued on the next page) The examiner must determine whether the Veteran's dizziness and/or vertigo is a residual of his traumatic brain injury with a distinct diagnosis. All examination findings, along with the complete rationale for all opinions expressed, must be set forth in the examination report P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mussey, Sean 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.