Citation Nr: 22019936
Decision Date: 04/03/22	Archive Date: 04/03/22

DOCKET NO. 17-51 393
DATE: April 3, 2022

REMANDED

Entitlement to a separate rating for traumatic brain injury (TBI), currently evaluated with PTSD, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

REASONS FOR REMAND

The Veteran served in active duty in the United States Marine Corps from July 2000 to August 2004, including service in Iraq. His decoration includes the Combat Action Ribbon.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision from the Department of Veterans Affairs (VA) regional office (RO).

In March 2022, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge.

Separate rating for TBI and entitlement to TDIU

The Veteran seeks a separate rating for his TBI condition. Currently, his TBI is evaluated with his service-connected PTSD.  In support, he testified that he suffers daily from both conditions, and that they have worsened since his last VA examination in November 2015. See BVA hearing (March 2022). 

When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. As such, the Veteran must be afforded another VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997; see also VAOPGCPREC 11-95 (April 7, 1995). 

The Board notes that the November 2015 VA examiner was not able to differentiate between PTSD and TBI symptoms and the RO adjudicated both as a single disability. Thus, the Board finds it necessary to obtain a new medical examination to determine if the Veteran TBI and PTSD symptoms can be differentiated from each other and address the severity of both conditions. On remand, the examiner must provide a complete rationale to support his or her conclusions and clarify the Veteran's symptoms and severity of his TBI and PTSD.  

In addition, the Veteran reported on his March 2022 BVA hearing that his service-connected disabilities affect his ability to maintain substantially gainful employment. See BVA hearing (March 2022).  As entitlement to a TDIU has been raised, further development, to include clarification as to the Veteran's education and employment experience is needed.

The matters are REMANDED for the following action:

1. Furnish the Veteran a VA form 21-8940 and request that he complete and submit it.

2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of the nature and severity of his service-connected TBI and PTSD, as well as any information as to how his service-connected disabilities impact his ability to obtain and maintain employment.

3. Obtain complete VA and Non-VA treatment records of the Veteran's TBI and PTSD conditions.

4. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible). The examiner should provide a full description of the Veteran's TBI and PTSD problems, symptoms and functional impairment. 

The examiner must opine as to whether it is at least as likely as not that the Veteran's TBI and PTSD symptoms can be differentiated and determine the severity of each condition. 

In doing so, the examiner must specifically acknowledge and discuss the Veteran's medical and competent lay reports of his symptoms for each condition.

 

 

Joshua Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Alvarado- Associate 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.