TINNITUS

Summary

The Veteran, an Army Veteran who served from June 2004 to November 2005 and August 2011 to April 2012, appeals a July 2024 rating decision. The Veteran sought service connection for tinnitus and an increased rating for his acquired psychiatric disorder, including PTSD with TBI residuals. The Board granted service connection for tinnitus, finding a nexus to service based on a February 2022 VA examination and the Veteran's credible lay testimony regarding in-service noise exposure. The Board denied an increased rating for PTSD with TBI, concluding that the Veteran's symptoms, while present, did not rise to the level of occupational and social impairment with deficiencies in most areas required for a 70 percent rating. The Board noted that the Veteran's TBI and PTSD symptoms overlapped significantly, preventing separate evaluations, and that his current 50 percent rating under DC 9411 was more favorable than the 40 percent rating warranted by his TBI residuals under DC 8045. The Board found the Veteran's lay testimony regarding his symptoms to be competent but not determinative over the professional medical opinions. The Board also remanded claims for service connection for post-concussion dizziness and balance disorder as residuals of TBI, finding a duty to assist error as the RO did not provide an examination opinion for these specific conditions. The Board noted that the August 2022 examination indicated these residuals, but they were not separately service-connected.

Rationale

Favorable VA examiner opinion; Veteran's credible lay testimony; Nexus to service established

Full Decision Text

Citation Nr: A25111165
Decision Date: 12/30/25	Archive Date: 12/30/25

DOCKET NO. 250415-539260
DATE: December 30, 2025

ORDER

1. Entitlement to service connection for tinnitus is granted. 

2. Entitlement to a disability rating in excess of 50 percent for acquired psychiatric disorder to include post-traumatic stress disorder (PTSD) with traumatic brain injury (TBI) is denied.

REMANDED

Entitlement to service connection for post-concussion dizziness and post-concussion balance disorder as residuals of TBI is remanded. 

FINDINGS OF FACT

1. The Veteran's tinnitus is related to his military service.

2. The severity, frequency, and duration of the Veteran's PTSD with TBI symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

CONCLUSIONS OF LAW

The criteria for service connection for tinnitus are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

The criteria for a rating in excess of 50 percent for PTSD with TBI have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 8045-9411.

REASONS AND BASES FOR FINDINGS AND CONCLSUIONS

The Veteran served in the United States Army from June 2004 to November 2005 and from August 2011 to April 2012.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2024 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket.

Therefore, the Board may only consider the evidence of record at the time of the July 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to service connection for post-concussion dizziness and post-concussion balance disorder as residuals of TBI, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303.  The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury.  Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Entitlement to service connection for tinnitus.  

The Veteran argues that he is entitled to separate evaluations for TBI residuals of post-concussion dizziness, balance disorders, and tinnitus. See VA Form 10182 Notice of Disagreement. Indeed, the record reflects that the Veteran suffers tinnitus as a symptom of his TBI. See August 2022 TBI Disability Benefits Questionnaire. 

Additionally, the Veteran underwent an examination in February 2022 for hearing loss and tinnitus. The Veteran reported that his tinnitus onset while in service after his first deployment to Iraq, where he experienced improvised explosive devices. The Veteran reported that he hears a high-pitched
1166 -67 (Fed. Cir. 2004).

Entitlement to service connection for tinnitus.  

The Veteran argues that he is entitled to separate evaluations for TBI residuals of post-concussion dizziness, balance disorders, and tinnitus. See VA Form 10182 Notice of Disagreement. Indeed, the record reflects that the Veteran suffers tinnitus as a symptom of his TBI. See August 2022 TBI Disability Benefits Questionnaire. 

Additionally, the Veteran underwent an examination in February 2022 for hearing loss and tinnitus. The Veteran reported that his tinnitus onset while in service after his first deployment to Iraq, where he experienced improvised explosive devices. The Veteran reported that he hears a high-pitched tone in both ears constantly and usually louder at night. The examiner opined that the Veteran's tinnitus is at least as likely as not a result of military noise exposure. 

The Board finds that the February 2022 VA examiner's opinion and the Veteran's competent and credible lay evidence is sufficient to establish a nexus between service and tinnitus, and therefore, service connection for tinnitus is warranted. 38 C.F.R. § 3.303 (a).

Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

As a preliminary matter, the Board notes that under the AMA, the period on review for an increased rating claim is the period from the date of the claim to the date of the decision on appeal. Here, the Veteran filed a claim for entitlement to service connection for a TBI on January 14, 2021. He continuously pursued that claim until service connection for TBI was granted and combined with the Veteran's previously service-connected acquired psychiatric disorder to include PTSD in the September 2022 rating decision. Following the September 2022 decision, the Veteran continuously pursed a higher rating for his acquired psychiatric disorder to include PTSD with TBI. Consequently, the Board construes the review period as beginning with the date the Veteran submitted his January 2021 claim for service connection for TBI. 

Entitlement to a rating in excess of 50 percent for acquired psychiatric disorder to include PTSD with TBI.

The Veteran argues that he has neurobehavioral effects and visual spatial orientation deficits due to his TBI that are not accounted for in his current combined rating for acquired psychiatric disorder. The Veteran contends that these symptoms should be rated separately. See April 2025 VA Form 10182, Notice of Disagreement. Further, he contends that his concentration, memory, and comprehension impairments are indicative of deficiencies in thinking, such that at least a 70 percent rating for this condition is most appropriate. See Id. 

The Board notes that as of this decision, the Veteran is already in receipt of separate ratings for migraines and tinnitus, two of the symptoms noted in his August 2022 TBI examination. See August 2022 TBI Disability Benefits Questionnaire.

In the September 2022 rating decision, the Veteran's rating of 50 percent disabling for his acquired psychiatric condition was continued when he was granted service connection for TBI. The Veteran appealed the rating in a higher-level review request in July 2023, and in the July 2024 decision, a disability rating in excess of 50 percent was denied. 

For the entire review period, the Veteran's PTSD with TBI has been rated as 50 percent disabling pursuant to DC 8045-9411.

Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

Note 1 of Diagnostic Code 8045 specifically provides that
 disabling for his acquired psychiatric condition was continued when he was granted service connection for TBI. The Veteran appealed the rating in a higher-level review request in July 2023, and in the July 2024 decision, a disability rating in excess of 50 percent was denied. 

For the entire review period, the Veteran's PTSD with TBI has been rated as 50 percent disabling pursuant to DC 8045-9411.

Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

Note 1 of Diagnostic Code 8045 specifically provides that there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of a Traumatic Brain Injury Not Otherwise Classified" with manifestations of a comorbid mental disorder that can be separately evaluated under another diagnostic code. In such cases, separate ratings are not warranted unless the manifestations of the two or more conditions can be clearly separated. 38 C.F.R. § 4.124a.

Here, the competent evidence of record establishes that the manifestations of the Veteran's TBI and PTSD cannot be separated. Specifically, in January 2024, VA examinations of residuals of TBI and PTSD were completed by a VA examiner. In both evaluations, the examiner opined that there were overlaps in the impact and symptoms of the Veteran's TBI and PTSD diagnoses. The examiner stated that they could not determine without resorting to speculation what symptoms were due to the claimed TBI and which were due to PTSD. The Veteran's August 2022 VA examiner also opined that it was impossible to identify which emotional/behavioral signs and symptoms are parts of the coexisting mental disorder and which represent residuals of TBI. 

Consequently, separate ratings are not warranted and the highest rating under either diagnostic code, Diagnostic Code 8045, or Diagnostic Code 9411, should be assigned. In this regard, the Veteran's TBI symptomatology would result in a 40 percent rating pursuant to DC 8045, and the current 50 percent rating assigned under DC 9411 is more favorable to the Veteran.

Thus, the Veteran's PTSD with TBI has been evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula) for the entire appeal period. 38 C.F.R. § 4.130. In this regard, such provides that a 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a
 Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411.

Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126 (a).

The Veteran was first afforded a VA examination in January 2021 to assess the severity of his PTSD. At the time, the examiner reported that the Veteran did not have a diagnosed TBI. The examiner noted that the Veteran had symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Overall, the examiner determined that such symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

With respect to his social functioning, the Veteran reported that he lived with his wife and four children. With respect to his occupational functioning, he reported that he worked for a lumber company and had been in the job since October 2020. The examiner noted that he presented with mildly flat affect and mildly depressed mood.

The Veteran was afforded an initial VA examination for his TBI in August 2022. The examination report indicates that the Veteran had objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment, to include problems with focus, concentration, and short term memory, having to write down verbal tasks, and difficulty remembering specific events after reading written passages; normal judgment; routinely appropriate social interaction; was always oriented to person, time, place, and situation; normal motor activity; mildly impaired visual spatial orientation, specifically avoiding new unfamiliar areas and being unable to negotiate directions and turns around town on his own; three or more subjective symptoms that mildly interfere with work, instrumental activities of daily living, or work, family or other close relationships, weekly headaches that cause complete loss of focus and intense pain, constant tinnitus, and problems with photophobia and insomnia; one or more neurobehavioral effects, specifically irritability, lack of awareness of his own behavior, and apathy concerning emotional consequences, that do not interfere with workplace interaction or social interaction; normal communication; and normal consciousness. The examiner also indicated that the Veteran experienced dizziness/vertigo.

As noted above, the Veteran was afforded additional VA examinations in January 2024 to assess the severity of his PTSD with TBI. The PTSD examination report notes symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Overall, the examiner determined that such symptoms result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

With respect to his social functioning, the Veteran reported that he still lived with his wife of 15 years and four children. With respect to his occupational functioning, he reported that he worked driving a mixer truck for concrete and that he enjoyed the work for the most part. The Veteran denied suicidal or homicidal ideations. The examiner noted that he presented with mostly euthymic mood with consistent affect. He was oriented, and his gross cognitive functioning was intact, although he reported concern with his short-term memory. He reported no audio or visual hallucinations and/or delusions.

With respect to
 decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

With respect to his social functioning, the Veteran reported that he still lived with his wife of 15 years and four children. With respect to his occupational functioning, he reported that he worked driving a mixer truck for concrete and that he enjoyed the work for the most part. The Veteran denied suicidal or homicidal ideations. The examiner noted that he presented with mostly euthymic mood with consistent affect. He was oriented, and his gross cognitive functioning was intact, although he reported concern with his short-term memory. He reported no audio or visual hallucinations and/or delusions.

With respect to his TBI, the January 2024 VA examination report indicates that the Veteran had mild memory loss, attention, concentration, or executive function, but without objective evidence on testing, specifically, he misplaces items and forgets his spouse's and children's birthdays; normal judgment; routinely appropriate social interaction; was always oriented to person, time, place, and situation; normal motor activity; mildly impaired visual spatial orientation, specifically sometimes not being able to find his car in the parking lot and needing to use a GPS when traveling; subjective symptoms that do not interfere with work, instrumental activities of daily living, or work, family or other close relationships, specifically a "hungover, headache feeling" a few times per month; one or more neurobehavioral effects, specifically irritability and apathy, that do not interfere with workplace interaction or social interaction; normal communication; and normal consciousness. 

Additionally, the Veteran's treatment records during the review period are informative with respect to the Veteran's PTSD and TBI symptoms. In December 2022, the Veteran had a negative screening for PTSD, although he reported experiencing an event so frightening, horrible or upsetting that he tried hard not to think about the event or went out of his way to avoid situations that reminded him of the event. At the same examination, the Veteran reported that due to his TBI, he had experienced memory problems or lapses, balance problems or dizziness, headaches, and sleep problems within the prior week.

Following a full review of the record, the Board finds that a rating in excess of 50 percent for the Veteran's PTSD with TBI is not warranted. In this regard, the record reflects that during the review period, his psychiatric disability was manifested by symptomatology to include anxiety, depression, insomnia, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and mild memory loss. The entirety of the Veteran's psychiatric symptomatology is contemplated by the currently assigned 50 percent rating under the General Rating Formula. Additionally, the January 2024 examiner found that such symptomatology results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with a 30 percent rating under the General Rating Formula. 38 C.F.R. § 4.130.

Thus, in order to warrant a rating of 70 percent, the evidence must show that the Veteran's PTSD with TBI results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Here, the evidence indicates that the Veteran has a long-term marriage and maintains a relationship with his four children. Although the Veteran reported irritability towards his spouse, the record does indicate that the Veteran has difficulties with his family relationships. Further, the record shows that the Veteran has been working full-time and enjoying his work for the most part. The Veteran's mood and affect ranged from mildly flat and mildly depressed at the January 2021 examination to mostly euthymic mood with consistent affect during the January 2024 examination. The Veteran was oriented, and his gross cognitive functioning was intact. The Veteran denied suicidal or homicidal ideations, as well as hallucinations or delusions. Based on the totality of the evidence, at no point during the appeal period does the evidence indicate that the Veteran's PTSD with TBI resulted in occupational or social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

Finally, the Board notes that the Veteran did not endorse symptoms of obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships, which are symptoms consistent with a 70 percent rating under the General Rating Formula.

The Board also notes that higher rating is not warranted under DC 8045. In this regard, DC 8045 provides
, school, family relations, judgment, thinking, or mood.

Finally, the Board notes that the Veteran did not endorse symptoms of obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships, which are symptoms consistent with a 70 percent rating under the General Rating Formula.

The Board also notes that higher rating is not warranted under DC 8045. In this regard, DC 8045 provides evaluation for three main areas of dysfunction that may result from traumatic brain injury and have profound effects on functioning: Cognitive (which is common in varying degrees after a traumatic brain injury), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. However, as the Veteran is already in receipt for a separate rating for his posttraumatic headaches, his residuals of a TBI do not show a level of impairment for any of the facets according to the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table of 3 or higher. Id. The examination showed that the Veteran had impairment of not worse than 2 in any facet. Thus, as the evidence indicates that a rating of 40 percent would be warranted pursuant to DC 8045, the Board finds that the Veteran's PTSD with TBI is most appropriately evaluated under DC 9411.

Consequently, the Board finds that, as the probative evidence of record does not show that the Veteran's PTSD with TBI resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, a rating in excess of 50 percent for such disability is not warranted.

In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his symptoms associated with his service-connected PTSD with TBI are more severe than as reflected by the current assigned disability rating. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability.

The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected disability; however, the Board finds that his symptomatology has been stable for the entire appeal period. Thus, assigning staged ratings for such disability is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record with regard to the rating claim adjudicated herein. Doucette, supra.

Based on the foregoing, the Board finds that a rating in excess of 50 percent for the Veteran's PTSD with TBI is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the weight of the probative evidence is against such claim, the benefit of the doubt doctrine is inapplicable in the instant appeal and his rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS AND BASES FOR REMAND

Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802(a).? Having reviewed the evidence of record, the Board finds that remand for a pre-decisional duty to assist error is required.

Entitlement
 U.S.C. § 5103A; 38 C.F.R. § 3.159.

Under the AMA, the Board may only remand an issue for the correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2)?AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. ?See?38?C.F.R. §?20.802(a).? Having reviewed the evidence of record, the Board finds that remand for a pre-decisional duty to assist error is required.

Entitlement to service connection for post-concussion dizziness and post-concussion balance disorder as residuals of TBI. 

The Veteran's medical records and examinations of record show that the Veteran suffers from a wide range of symptoms from his TBI and PTSD that overlap. However, the August 2022 TBI examination also showed that the Veteran had tinnitus, headaches, dizziness, and vertigo associated with his TBI. See August 2022 TBI Examination. Although the Veteran is currently service connected for migraines and tinnitus, he is not separately service connected for the TBI residuals of dizziness and vertigo. The Veteran was afforded an ear condition VA examination in August 2022 and was diagnosed with post-concussion dizziness and post-concussion balance disorder. 

The Board finds that the RO did not provide an examination opinion for these conditions, and consequently, the VA has not complied with its duty to assist the Veteran prior to the July 2024 decision on appeal. A remand is needed to obtain an opinion regarding the TBI residuals of post-concussion dizziness and post-concussion balance disorder described in the August 2022 TBI VA examination and August 2022 ear condition examination. 

The matters are REMANDED for the following action:

1. Forward the record, to include a copy of this Remand, to an appropriate medical professional in order to obtain an addendum opinion addressing the nature and etiology of the Veteran's post-concussion dizziness and post-concussion balance disorder. The need for an additional examination is left to the discretion of the examiner selected to provide the opinion. 

Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not that the Veteran's post-concussion dizziness and post-concussion balance disorder had its onset in, or is otherwise related to, the Veteran's military service, to include the Veteran's TBI diagnosis.

(continued on next page)

?

A complete explanation for all opinions expressed must be provided. 

 

W. Daknis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Clark, C.

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.