Citation Nr: 18161270 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 13-11 463 DATE: December 31, 2018 ORDER Entitlement to an initial rating in excess of 40 percent for degenerative disc disease of the lumbar spine, status post fusion L4-L5, L5-S1 (lumbar spine disability), is denied. Entitlement to an initial rating in excess of 30 percent for degenerative arthritis of the cervical spine is denied. Entitlement to an initial rating in excess of 20 percent for residuals of contusion, left shoulder and arm (left upper extremity disability) is denied. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI), claimed as hearing loss, tinnitus, headaches, and dizziness is remanded. FINDINGS OF FACT 1. The evidence shows forward flexion of the thoracolumbar spine of 30 degrees or less. 2. The Veteran’s degenerative arthritis of the cervical spine was manifested by forward flexion of 15 degrees or less. 3. The Veteran’s left (minor) upper extremity disability resulted in limitation of motion midway between his side and shoulder level but was not shown to be manifested by nonunion or dislocation of the clavicle or scapula, a humerus impairment, or ankylosis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for the Veteran’s service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5241, 5243. 2. The criteria for an initial rating in excess of 30 percent for the Veteran’s service-connected degenerative arthritis of the cervical spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial rating in excess of 20 percent for the Veteran’s service-connected left (minor) upper extremity disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5299, 5200-5203. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from January 1949 to January 1950 and September 1950 to November 1951. The Veteran died in April 2012. The appellant is the Veteran’s surviving spouse and has been accepted as the substitute party. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and February 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2014 when the Board reopened and granted the Veteran’s claims of entitlement to service connection for a lumbar spine disability, degenerative arthritis of the cervical spine, and a left upper extremity disability. In addition, the July 2014 Board decision remanded the Veteran’s claim for entitlement to service connection for residuals of a TBI for further development. A July 2014 rating decision implementing the July 2014 Board decision assigned a 40 percent disability rating for the Veteran’s lumbar spine disability, a 30 percent rating for the Veteran’s degenerative arthritis of the cervical spine, and a 20 percent rating for a left upper extremity disability. These ratings were effective as of August 23, 2010. The appellant has timely appealed these ratings. Aside from being before the Board in July 2014, the appellant’s claim of entitlement to service connection for residuals of a TBI was also before the Board in October 2016 when it was remanded for further development, and in August 2017 when the Board denied the appellant’s claim for service connection for residuals of a TBI. In an April 2018 Order, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (Joint Motion) vacating the August 2017 Board decision and remanding the appeal for further action in compliance with the Joint Motion. DUTIES TO NOTIFY AND ASSIST VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. Neither the appellant nor her attorney has raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”). Regarding the duty to assist, in an August 2015 statement accompanying the VA Form 21-0958, Notice of Disagreement, the appellant’s attorney generally contended that examination provided was inadequate or that the Veteran should have been provided with an examination. Regarding the inadequacy argument, the Veteran, prior to his death, did not undergo a VA examination for his lumbar spine, cervical spine, or left upper extremity disabilities during the applicable appeal period. Further, regarding the general argument that examinations should have been provided, unfortunately, given the Veteran’s death, a VA examination of these disabilities cannot now be scheduled to evaluate the severity of the condition. As such, appellate review of the appellant’s claims may proceed without prejudice to the appellant. Neither the appellant nor her attorney has raised any other issues with the duty to assist. Scott, 789 F.3d at 1381; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. Lumbar Spine Disability The appellant and her attorney contend the appellant is entitled to a rating in excess of 40 percent for the Veteran’s lumbar spine disability. The Veteran’s degenerative disc disease of the lumbar spine, status post fusion L4-L5, L5-S1, was rated as 40 percent disabling throughout the appeal period under Diagnostic Code 5243. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. The Veteran’s lumbar spine disability can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the Formula for Rating IVDS, a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Note (1) provides that for purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. After a review of the evidence of record, the Board finds that a rating in excess of 40 percent under Diagnostic Code 5243 is not warranted for the entire period on appeal because there is no evidence of unfavorable ankylosis, which is required for a rating in excess of 40 percent under the rating schedule. 38 C.F.R. § 4.71a. Turning to the evidence of record, the Veteran filed a petition to reopen the prior denial of his lumbar spine disability in August 2010, and service connection for the lumbar spine condition is effective from the date that petition was received, August 23, 2010. There is only one medical record since the August 2010 petition that relates to the Veteran’s lumbar spine disability. An August 2011 VA treatment note reflects the Veteran had limited range of motion in the neck in all planes. The Veteran had reduced strength with 3/5 on the right and 0 to 1/5 on the left. The sensory examination was grossly intact and the finger-to-nose test was normal. The VA treatment provider noted that the examination was limited due to the Veteran’s difficulty with movement. In addition, the Veteran reported chronic back pain and that he used a morphine pump. A preponderance of the evidence is against a finding that the Veteran had unfavorable ankylosis of the thoracolumbar spine. In evaluating the Veteran’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran’s complaints of pain, loss of motion, and functional loss as a result of his lumbar spine disability, notably his use of a morphine pump. However, the 40 percent evaluation assigned is the maximum evaluation based on limitation of motion. In order to obtain a higher rating, ankylosis must be shown. Therefore, further analysis of these provisions is not required. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has considered whether the appellant is entitled to a higher rating under the rating criteria for IVDS. However, the evidence does not show that the Veteran had IVDS. Further, the evidence does not show that the Veteran had any episode of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in any 12-month period beginning in August 2010, the date of his petition to reopen his claim, and through the appeal period prior to his death. Therefore, a rating in excess of 40 percent for the lumbar spine disability is not warranted under the rating criteria for IVDS. The Board acknowledges that Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment, including bowel or bladder impairment. Initially, the Board notes the record does not reflect that the Veteran had any bowel or bladder impairment; therefore, there is no basis for a separate award for neurological impairment on that basis. Regarding the noted left upper extremity weakness in the August 2011 VA treatment note, the treatment note reflects the weakness is from a cerebrovascular accident. Further, the sensory nerve and cranial nerves examinations were normal. Thus, a separate rating for a neurological impairment of either upper extremity is not warranted. In an August 2015 statement accompanying the VA Form 21-0958, Notice of Disagreement, the appellant’s attorney requested entitlement to service connection for bilateral lower extremity radiculopathy secondary to the Veteran’s lumbar spine disability. As is noted above, Note (1) to the General Rating Formula for Diseases and Injuries of the Spine provide for separate rating(s) for associated neurologic impairment. Therefore, the Board will address the August 2015 contention here. The Board acknowledges that a January 2009 private treatment record reflects that the Veteran had decreased sensation to light touch and pinprick in a stocking pattern and decreased vibratory sense in the ankles on down. This record indicates that he has peripheral neuropathy that is multifactorial, but does not further indicate what factors cause the peripheral neuropathy, including whether it is related to his lumbar spine condition. Subsequently, the Veteran suffered a cerebrovascular accident in April 2009, and following the cerebrovascular accident, April and May 2009 private treatment records illustrate the Veteran had reduced sensation in his feet and legs. Since August 23, 2010, the effective date of the award of service connection for the Veteran’s lumbar spine disability, the only medical evidence is an August 2011 VA treatment record. The physical examination at the August 2011 VA appointment reveals the Veteran had left lower extremity weakness due to his cerebrovascular accident. In addition, the sensory examination was noted to be grossly intact. As such, the evidence during the appeal period indicates that any neurological impairment of the lower extremities has been due to the cerebrovascular accident. There is no indication that it was related to his lumbar spine disability. Without evidence of a neurologic impairment during the relevant period related to his lumbar spine disability, the Board is unable to provide separate ratings for bilateral lower extremity radiculopathy secondary to the Veteran’s lumbar spine disability as requested by the appellant’s attorney in the August 2015 statement. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the appellant or reasonably raised by the record and will not be further discussed herein. Doucette v. Shulkin, 28 Vet. App. 366, 369−70 (2017). In sum, the Board finds the criteria for a rating in excess of 40 percent for a lumbar spine disability are not met. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the appellant’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Degenerative Arthritis of the Cervical Spine The appellant and her attorney contend the appellant is entitled to a rating in excess of 30 percent for the Veteran’s cervical spine disability. The RO rated the Veteran’s service-connected degenerative arthritis of the cervical spine as 30 percent disabling throughout the appeal period under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The Veteran’s cervical spine disability can be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. For the reasons that follow, the Board finds that the criteria for a rating in excess of 30 percent for the cervical spine disability have not been met. Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees; extension is 0 to 45 degrees; left and right lateral flexion are 0 to 45 degrees; and left and right lateral rotation are 0 to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS, a 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Here, the Veteran filed a petition to reopen the prior denial of his cervical spine disability in August 2010, and service connection is effective from the date that petition was received, August 23, 2010. There is only one medical record since the August 2010 petition that relates to the Veteran’s cervical spine disability. An August 2011 VA treatment note reflects the Veteran had limited range of motion in the neck in all planes. The Veteran had reduced strength with 3/5 on the right and 0 to 1/5 on the left. The sensory examination was grossly intact and the finger-to-nose test was normal. The VA treatment provider noted that the examination was limited due to the Veteran’s difficulty with movement. In addition, the Veteran reported chronic neck pain and that he used a morphine pump. A preponderance of the evidence is against a finding that the Veteran had unfavorable ankylosis of the cervical spine. There is no indication that the Veteran had ankylosis that also resulted in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. The Board acknowledges the appellant’s attorney’s contentions in his August 2015 statement accompanying the VA Form 21-0958, Notice of Disagreement, that the appellant is entitled to a rating analogous to unfavorable ankylosis based on findings for anterocollis and torticollis in 2008 and 2009 medical records. However, even though the Board acknowledges the August 2011 VA appointment included a limited physical examination due to the Veteran’s difficulty with movement, the physical examination provides no evidence that there was anterocollis or torticollis and does not reflect findings during the appeal period that would be analogous to unfavorable ankylosis. As such, the Board concludes the preponderance of the evidence is against symptoms related to the cervical spine that would be analogous to unfavorable ankylosis. In evaluating the appellant’s increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran’s complaints of pain, loss of motion, and functional loss as a result of his cervical spine disability, notably his use of a morphine pump. However, the 30 percent evaluation assigned is the maximum evaluation based on limitation of motion. In order to obtain a higher rating, unfavorable ankylosis must be shown. Therefore, further analysis of these provisions is not required. Johnston v. Brown, 10 Vet. App. 80 (1997). The Board has considered whether the appellant is entitled to a higher rating under the rating criteria for IVDS. However, the evidence does not show that the Veteran had IVDS. Further, the evidence does not show that the Veteran had any episode of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in any 12-month period beginning in August 2010 through the appeal period prior to his death. Therefore, a rating in excess of 30 percent for the cervical spine disability is not warranted under the rating criteria for IVDS. Entitlement to separate ratings for associated neurologic impairment, including bowel or bladder impairment in accordance with Note (1) to the General Rating Formula for Diseases and Injuries of the Spine, as noted in the analysis for the lumbar spine, an August 2011 VA treatment note reflects that left upper extremity weakness is from a cerebrovascular accident. Further, the sensory nerve and cranial nerves examinations were normal. Thus, a separate rating for a neurological impairment of either upper extremity is not warranted. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the appellant or reasonably raised by the record and will not be further discussed herein. Doucette, 28 Vet. App. at 369−70. In sum, the Board finds the criteria for a rating in excess of 30 percent for a cervical spine disability are not met. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the appellant’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55 (1990). 3. Left Upper Extremity Disability The appellant and her attorney generally contend the appellant is entitled to a rating in excess of 20 percent for the Veteran’s left upper extremity disability. The Veteran has been assigned a 20 percent rating for his service-connected right shoulder disability pursuant to the criteria of Diagnostic Code 5299-5201. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic codes indicate that the Veteran’s upper extremity disability is rated, by analogy, under the criteria for limitation of motion of the arm under Diagnostic Code 5201. 38 C.F.R. § 4.71a. The record reflects that the Veteran was right handed. Therefore, the Veteran’s left upper extremity was his minor upper extremity. Under Diagnostic Code 5201, for the minor upper extremity, a 20 percent rating is assigned for limitation of motion at shoulder level and for limitation of motion midway between the side and shoulder level, and a 30 percent rating is assigned for limitation of motion to 25 degrees from side. 38 C.F.R. § 4.71a. Normal range of motion of the shoulder is flexion and abduction from 0 to 180 degrees, and internal and external rotation each to 90 degrees. 38 C.F.R. § 4.71, Plate I. Abduction is the motion of lifting the arm from the side, with 0 degrees representing the arm at the side and 90 degrees representing the arm at the shoulder level. 38 C.F.R. § 4.71a, Plate I. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to ‘limitation of motion of’ the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). Diagnostic Code 5200 evaluates ankylosis of the shoulder. The record contains no evidence of shoulder ankylosis, and the Veteran did not describe symptoms that are suggestive of ankylosis. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5202 evaluates impairment of the humerus. The record contains no evidence of impairment of the humerus, and the Veteran did not describe symptoms that are suggestive of impairment of the humerus. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5203 evaluates impairment of the clavicle or scapula. The record contains no evidence of impairment of the clavicle or scapula, and the Veteran did not describe symptoms that are suggestive of impairment of the clavicle or scapula. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Here, the Veteran filed a petition to reopen the prior denial of his left upper extremity disability in August 2010, and service connection for the disability is effective from the date that petition was received, August 23, 2010. There is only one medical record since the August 2010 petition that relates to the Veteran’s left upper extremity disability. An August 2011 VA treatment note reflects the Veteran had limited range of motion in the neck in all planes. The Veteran had reduced strength with 3/5 on the right and 0 to 1/5 on the left. Further, the treatment note reflects the Veteran had left upper extremity weakness due to a cerebrovascular accident. The VA treatment provider noted that the examination was limited due to the Veteran’s difficulty with movement. Pertinent to the claim for increase, the Veteran’s left upper extremity was manifested primarily by limited motion and pain. The Board notes that there is no evidence during the applicable period that provides measurements of range of motion testing for the left upper extremity. In evaluating the appellant’s increased rating claim, the Board must address the provisions of 38 C.F.R. §§ 4.40, 4.45. The Board recognizes the Veteran’s complaints of pain as a result of his left upper extremity disability. However, when considering the reports of functional loss as shown by the August 2011 VA treatment note and the Veteran’s report of pain, a preponderance of the evidence is against a finding that the Veteran’s limitation of motion of the extremity was more nearly approximated by limitation to 25 degrees from the side. Thus, a rating in excess of 20 percent is not warranted. The Board notes that ratings in excess of 20 percent are available under Diagnostic Codes 5200 and 5202; however, as noted above, the record shows no evidence of ankylosis or impairment of the humerus. Therefore, a rating in excess of 20 percent is not available under any other diagnostic code. Regarding whether referral for an extraschedular rating is appropriate, such has not been raised by the appellant or reasonably raised by the record and will not be further discussed herein. Doucette, 28 Vet. App. at 369−70. In sum, the Board finds the criteria for a rating in excess of 20 percent for a left upper extremity disability are not met. The Board has considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the appellant’s claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55 (1990). REASONS FOR REMAND Entitlement to service connection for residuals of a traumatic brain injury (TBI), claimed as hearing loss, tinnitus, headaches, and dizziness, for accrued purposes, is remanded. Per the April 2018 Joint Motion of the Court, an additional VA opinion is necessary to sufficiently address the Veteran’s post-service symptomatology. Therefore, another remand is required to acquire a VA opinion in accordance with the Joint Motion of the Court. The matter is REMANDED for the following actions: Obtain a VA opinion to determine the nature, extent, and etiology of the Veteran’s residuals of TBI. His electronic claims file, including a copy of this decision and remand, must be made available to the opinion provider for review. The VA medical expert should provide an opinion on the following. Is it at least as likely as not (50 percent or greater probability) that the Veteran’s residuals of TBI was related to service? In answering this question, the VA medical expert should address the following medical records: i) The May 19, 1952 VA medical examination documenting the Veteran’s complaints of a right earache and blurry vision since his April 1951 in-service accident. ii) The June 24, 1953 VA medical examination noting the Veteran’s complaints of injuring his right ear during service and having pain behind his right ear with diminished hearing and loss of vision in his right eye. iii) The September 28, 1953 examination report reflecting the Veteran’s report of dizziness since his April 1951 in-service accident. iv) The December 3, 1954 neurological consultation reflecting the Veteran’s complaint of headaches that he attributed to an April 1951 in-service accident. v) The December 28, 1954 VA psychiatric evaluation reflecting the Veteran’s complaints of headaches since 1951. In addition, it is noted that the medical evidence does not support that the Veteran’s headaches and dizziness were caused by his marriage issues or divorce, as stated in the prior March 2017 VA opinion. The clinician must fully explain the rationale for all opinions, with citation to supporting clinical data/lay statements, as deemed appropriate. If the clinician cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Breitbach, Associate Counsel