Citation Nr: 22010579 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 06-17 467 DATE: February 24, 2022 REMANDED Entitlement to an increased initial disability rating for residuals of traumatic brain injury (TBI) (previously characterized as closed head injury with history of cephalgia), currently rated as 10 percent disabling prior to April 3, 2009 and noncompensable thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from February 1978 to August 1983. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the matter pursuant to a Joint Motion for Partial Remand (JMPR) signed by both parties and granted by the United States Court of Appeals for Veterans Claims (Court) in June 2018. The Board directed the RO to provide an adequate VA medical opinion regarding the nature and severity of the Veteran's TBI residuals. After obtaining a VA opinion in August 2020, the Board issued a decision in December 2020 denying entitlement to an increased initial rating. The Veteran appealed that decision to the Court. In September 2021, the parties signed a Joint Motion for Remand (JMR) vacating the Board's decision, for reasons discussed in detail below. The Board notes that, in a January 2022 Written Brief Presentation, the Veteran's representative raised the issue of entitlement to service connection for diabetes mellitus. However, at this juncture the requirements for appellant review of this issue have not been met. See 38 U.S.C. § 7105(a). Entitlement to an increased initial rating for residuals of TBI The Veteran contends that his TBI residuals are more severe than his current staged rating reflects. As noted in the Board's January 2019 remand, during an October 2010 VA examination he reported experiencing myriad symptoms, including headaches, dizziness, nausea, light sensitivity, sleep disturbance, fatigue, difficulty concentrating, and memory impairment. Although the VA examiner in October 2010 determined that these symptoms were not attributable to the Veteran's TBI, the parties agreed (as noted in the June 2018 JMPR) that the October 2010 opinion was inadequate. A new VA medical opinion was obtained in August 2020, which the Board relied on to deny the claim in its December 2020 decision. However, according to the September 2021 JMR, the August 2020 opinion did "not contain an adequate rationale for its opinion and it did not adequately address Appellant's lay statements, despite being directed to by the January 2019 Board's remand directives." The JMR determined that a remand was warranted so that the Board could "obtain a new VA examination that adequately complies [with] the January 2019 Board remand directives." Accordingly, a remand is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). (In the interest of ensuring the concerns laid out in the JMR are addressed, the Board is using much the same language in the directives below as appeared in its January 2019 remand, with a few additional comments.) The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his TBI residuals. The clinician should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary, the clinician should fully describe all symptomatology and functional deficits associated with this condition. The clinician should comment on the findings and opinions of other examiners in the claims file, including VA TBI examination reports from October 2010 and August 2020. In addition, the examiner should acknowledge, address, consider, and discuss all lay evidence in the record pertaining to residuals of TBI with cephalgia, including the Veteran's lay statements, any lay statements of his wife, other family members, friends, co-workers, or others, as well as the Veteran's reports to treatment providers. The clinician should specifically comment on the Veteran's reports of experiencing headaches, dizziness, nausea, light sensitivity, sleep disturbance, fatigue, difficulty concentrating, and memory impairment, and opine as to the likelihood of these symptoms being related to his TBI. (Continued on the next page) The clinician should also discuss the contentions included in the Veteran's representative's January 2022 Written Brief Presentation, in particular the contention that lack of educational attainment is not the cause of the Veteran's memory problems. Findings should be reconciled with other records on file to the extent possible. Detailed rationales should be included in support of all opinions provided. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.