Citation Nr: 18132315
Decision Date: 09/06/18 Archive Date: 09/06/18
DOCKET NO. 14-07 390
DATE: September 6, 2018
Entitlement to service connection for residuals of traumatic brain injury, to include migraine headaches, is remanded.
Entitlement to an evaluation greater than 20 percent for low back strain prior to February 4, 2014, and an evaluation greater than 40 percent thereafter, is remanded.
Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.
REASONS FOR REMAND
The Veteran had active service in the United States Marines Corps from March 1976 to December 1977. These matters are on appeal from a September 2011 rating decision.
1. Entitlement to service connection for residuals of traumatic brain injury, to include migraine headaches, is remanded.
The Veteran has not been afforded a VA examination to determine the nature and etiology of the residuals of his traumatic brain injury, to include migraine headaches. A November 2014 VA mental health note states that the Veteran has chronic migraine headaches that result in blackouts. The Veteran asserts that his residuals of traumatic brain injury are the result of being beaten by other Marines at a “dorm barrack party.” The Veteran has been granted service connection for posttraumatic stress disorder based upon in-service assault. Based upon the forgoing, a remand is required to afford the Veteran a VA examination to determine the nature and etiology of any current residuals of traumatic brain injury, to include migraine headaches.
2. Entitlement to an evaluation greater than 20 percent for low back strain prior to February 4, 2014, and an evaluation greater than 40 percent thereafter, is remanded.
In December 2016, the Veteran’s representative argued that the most recent VA examination is inadequate because it does not address pain on movement, guarding, or spasms. The examinations of record do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. Upon remand, a new VA examination must be obtained.
3. Entitlement to a TDIU is remanded.
Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the TDIU claim is required.
The matters are REMANDED for the following actions:
1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any residuals of traumatic brain injury, to include migraine headaches. The examiner must opine whether it is at least as likely as not (probability of 50 percent or greater) related to an in-service injury, event, or disease, including the conceded in-service personal assault. The VA examiner is advised that the Veteran is competent to report symptomatology that he can observe.
2. Schedule the Veteran for an examination of the current severity of his low back strain. The examiner must test the Veteran’s lumbar spine in active motion and passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the low back strain alone and discuss the effect of the Veteran’s low back strain on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU.
If the benefits sought are not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an
opportunity to respond. If necessary, return the case to the Board for further appellate review.
DAVID L. WIGHT
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD R. R. Watkins, Counsel