Citation Nr: 22016225 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 12-17 524A DATE: March 21, 2022 REMANDED Issue of entitlement to a higher rating for residuals of traumatic brain injury (TBI) with insomnia, currently rated as noncompensable prior to January 21, 2010; 10 percent disabling from January 21, 2010, to December 30, 2019; and 70 percent disabling from December 31, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1996 to February 2000. This appeal to the Board of Veterans' Appeals (Board) arose from an October 2009 rating decision issued by the Department of Veterans Affairs (VA). See October 2010 Notice of Disagreement (NOD); June 2012 Statement of the Case (SOC); September 2012 Substantive Appeal (VA Form 9). In November 2014, the Board remanded the claim for further development. November 2014 Board Decision. On remand, the agency of original jurisdiction (AOJ) granted an earlier effective date of May 7, 2008, for the Veteran's entitlement to service connection for TBI and a higher rating of 10 percent, effective January 21, 2010. December 2017 Rating Decision. In January 2020, the Board remanded the claim again for further development. January 2020 Board Decision. The AOJ then granted an increased rating of 70 percent for the Veteran's TBI, effective December 31, 2019. July 2020 Rating Decision. The AOJ denied the Veteran's claim of entitlement to a compensable rating prior to January 21, 2010, to a rating higher than 10 percent from January 21, 2010, to December 31, 2019, and a rating higher than 70 percent from December 31, 2019. July 2020 Supplemental Statement of the Case (SSOC). The claim is now back before the Board. Issue of entitlement to a higher rating for residuals of TBI with insomnia, currently rated as noncompensable prior to January 21, 2010; 10 percent disabling from January 21, 2010, to December 31, 2019; and 70 percent disabling from December 31, 2019, is remanded. Unfortunately, the Board finds that another remand is required. The January 2020 Board decision remanded the Veteran's TBI claim because the October 2017 VA examinations for the Veteran's TBI and mental disorders are inadequate. The October 2017 VA examiners found no evidence to support a diagnosis of a mental disorder. See October 2017 VA Examination Review Evaluation of Residuals of TBI; October 2017 VA Examination Medical Opinion. However, the VA examiners did not consider or discuss the evidence in the claims file showing the Veteran was diagnosed with several mental health conditions, including by a January 2010 VA examiner. See January 2020 Board decision. The January 2020 VA examiners' opinions obtained on remand, again, provide no discussion of the Veteran's prior mental diagnoses prior finding that there is no evidence of a mental disorder. See January 2020 VA Examination Mental Disorders; January 2020 Review Evaluation of Residuals of TBI. The examiner even specifically noted that only evidence added to the claims file since the October 2017 VA examinations was reviewed. January 2020 VA Examination Mental Disorders. In addition, the January 2020 VA examiner opined that the Veteran "retains the diagnosis of Insomnia Disorder" and that it is possible to differentiate his insomnia disorder symptoms from TBI. January 2020 VA Examination Mental Disorders. However, the examiner then found the Veteran to have "no mental disorder diagnosis" in evaluating his occupational and social impairment with no explanation as to why. This appears inconsistent with rest of the examination. The Board finds that an addendum opinion is needed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional to determine the nature and severity of the Veteran's current mental health disorder(s), if any. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination. The medical professional should respond to the following: (a) Identify evidence of any current mental health disorder. The entire claims file should be reviewed. The medical professional should specifically consider and discuss the January 2010 VA examiner's diagnosis of adjustment disorder with mixed anxiety and depressed mood, a December 2009 VA treatment record diagnosis depressive disorder, June 2010 and April 2011 VA treatment records diagnosing, and a November 2017 VA treatment record showing the Veteran is prescribed antidepressants. (b) For each identified mental health disorder, the medical professional should determine whether it is at least as likely as not (a 50 percent probability or greater) that the condition was incurred in or caused by service, including the Veteran having been assaulted and hit in the head with a bottle in October 1997. The examiner should consider and discuss the Veteran's lay testimony and assertions regarding any pertinent complaints and symptoms. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected insomnia disorder. 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 must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his insomnia disorder alone. The examiner should specifically consider and discuss the January 2020 VA Examination for Mental Disorders, which found the Veteran to retain the diagnosis for insomnia disorder, but then found no mental disorder diagnosis while evaluating its occupational and social impairment. (Continued on the next page) 3. Arrange for any further development indicated by the results of the development requested above if deemed warranted by AOJ, including another VA examination for TBI. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Lin 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.