Citation Nr: 21071778 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-15 746 DATE: December 1, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis of the cervical spine is remanded. Entitlement to a compensable initial rating for service-connected residuals of traumatic brain injury (TBI) is remanded. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Marine Corps from October 1965 to October 1967. The issue of entitlement to a higher initial rating for degenerative arthritis of the cervical spine comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for a cervical spine disability and assigned an initial 10 percent rating, effective from February 23, 2011. This December 2017 rating decision effectuated a December 2017 Board decision which granted service connection. The appellant appealed the initial rating assigned in a notice of disagreement (NOD) received by VA in January 2018. A Statement of the Case (SOC) was issued by VA in March 2018. VA received the appellant's Substantive Appeal (Form 9) in March 2018, perfecting the appeal and requesting a hearing before the Board. The issue of entitlement to a higher initial rating for residuals of a TBI comes before the Board on appeal from a December 2016 decision issued by the RO which, in pertinent part, granted service connection for residuals of a TBI, assigning a noncompensable initial rating from February 23, 2011. The December 2016 rating decision effectuated a July 2016 Board decision which granted service connection for the claim. The appellant appealed the initial rating assigned in an April 2017 NOD. VA issued an SOC in March 2018. VA received the appellant's Substantive Appeal (Form 9) in March 2018, perfecting the appeal and requesting a hearing before the Board. The appellant withdrew his request for a hearing on these issues in a September 2019 communication to VA. See 38 C.F.R. § 20.704(e). These claims were previously remanded in a June 2020 Board decision for further development. After completion of the above ordered development, a Supplemental Statement of the Case (SSOC) was issued by VA in December 2020 and the claim was returned to the Board for further adjudication. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis of the cervical spine is remanded. The appellant contends that a higher rating for his cervical spine disability is warranted. After a review of the evidence of record, the Board finds that an addendum medical opinion is necessary prior to adjudicating this claim. In a December 2020 VA examination, the appellant reported feeling a mild decreased sensation in his left hand. Diagnostic testing confirmed a decreased sensation to light touch in the left hand and fingers, indicating at least some issues with the C6-8 nerve root. Muscle strength testing and reflex testing were normal, and there were no signs of muscle atrophy. The examiner indicated that the appellant's symptoms did not amount to radiculopathy; however, the examiner did not offer any rationale regarding why this reported symptom, confirmed by diagnostic testing, was not related to the appellant's service-connected degenerative arthritis of the cervical spine. Considering this, the Board finds that remand of this issue is necessary so that an addendum medical opinion can be obtained which provides a rationale as to why the appellant's reports of decreased sensation in his left hand, confirmed by diagnostic testing, is not at least as likely as not an "associated objective neurologic abnormality," such as radiculopathy, which would warrant its own evaluation under a separate, appropriate diagnostic code. See 38 C.F.R. § 4.72a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. If the reviewing clinician determines that additional diagnostic testing is warranted, the appellant should be scheduled for a full examination. 2. Entitlement to a compensable initial rating for service-connected residuals of traumatic brain injury (TBI) is remanded. The appellant contends that a higher rating for his service-connected residuals of TBI is warranted. He asserts that a 100 percent disability rating is warranted based on the nature and severity of the residual symptoms attributable to his in-service TBI. While the Board regrets further delay, the Board finds that remand is necessary to obtain an addendum medical opinion prior to adjudicating this claim. In the July 2021 brief submitted to the Board, the appellant's attorney noted a long list of reasons why she believes the December 2020 VA examination and medical opinion are inadequate. The Board has considered those arguments in light of its review of the decision. Regarding the substance of the VA medical examination and opinion provided, the Board notes that the examiner agreed with the determination made by the March 2017 private examiner that the appellant's neurocognitive functioning had mild to moderate impairment; however, the December 2020 VA medical examiner indicated that there was potential overlap with the appellant's service-connected psychiatric symptoms. However, despite noting such potential overlap, the examiner found that it would be difficult to state which signs or symptoms belong to which diagnosis without speculation. Judging the adequacy of this opinion is difficult, as the examiner provided a disjointed analysis of this issue, with the conclusory statement in the actual TBI disability benefits questionnaire (DBQ) and the rationale for the statement in the medical opinion DBQ. As best the Board can determine, the examiner does note that the appellant's service-connected PTSD may also impair his cognition, although it should be noted this was addressed in the context of explaining why the March 2017 private examination does not present an accurate representation of the appellant's functional capacity in relation to his TBI residuals. Efforts were not made to indicate which neurocognitive symptoms were relatable to TBI and which were related to the service-connected PTSD. In an effort to clean everything up, in the "Remarks" portion of the TBI DBQ, the examiner states that "it would be difficult" to separate which symptoms are due to which diagnosis without speculation. The Board finds this portion of the opinion inadequate. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that the Board can accept an examiner's statement than an opinion cannot be provided without resort to speculation only if this is predicated on a lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. 29 Vet. App. 26, 36 (2017). As such, an examination which indicates speculation is required because the task of separating symptoms between the TBI residuals diagnosis and the PTSD diagnosis "would be difficult" is inadequate. As the opinion is inadequate, the Board finds that remand of this issue is necessary so that a new VA examination and medical opinion can be obtained addressing this issue. The Board has considered whether the claim can be granted on the basis of the March 2017 private medical opinion. However, as noted in the December 2020 VA medical opinion, the clinician who conducted the March 2017 private medical examination did not discuss which of the appellant's residual symptoms of TBI might overlap with symptoms the appellant is already being compensated for in relation to his service-connected PTSD. The private examiner acknowledged the PTSD diagnosis and the VA examinations which noted symptoms that overlap with symptoms the examiner noted in the assessment of the appellant's TBI residuals. The March 2017 private opinion suffers from a similar defect as the December 2020 VA medical opinion in that it does not address whether the residual symptoms of the service-connected TBI can be adequately separated from those of the service-connected PTSD. VA regulations strictly prohibit compensating a claimant for the same disability under various diagnoses. Doing so constitutes impermissible pyramiding. 38 C.F.R. § 4.14. Because of the possible overlapping nature of the residual symptoms of TBI with those of PTSD, extra efforts are necessary to assure the avoidance of pyramiding. If an addendum opinion could be obtained from the private clinician addressing this issue, it would be of great assistance in adjudicating this claim to the appellant's satisfaction. If the overlapping symptoms of each disability cannot be adequately separated, then the disabilities may be rated together. Additionally, the Board notes that the appellant has consistently reported symptoms such as frequent headaches, dizziness, visual impairment, and more recently sensory dysfunction, to include loss of sensation in the left hand, which were not addressed or discussed in the December 2020 VA examination. The December 2020 VA examiner offered no explanation as to why the findings on that examination were so markedly different from previous reports of additional subjective symptoms. These are symptoms that are subjective, and as such, within the appellant's competency to report, though the Board makes no findings at this time regarding the credibility of these reports of subjective symptoms. The Board finds that the December 2020 VA examiner's failure to explain why none of these symptoms are present despite the appellant's repeated assertions over the years otherwise, also renders the opinion inadequate. Considering all this, the Board finds that a new VA examination and medical opinion should be obtained in relation to this claim for an increased rating for service-connected residuals of TBI. Appropriate diagnostic testing should be conducted, and consideration should be given to the extensive diagnostic testing conducted during the March 2017 private examination. An adequate rationale should be provided for the findings presented and must include an explanation regarding what symptoms are attributable to the appellant's service-connected residuals of TBI and which symptoms are attributable to the appellant's service-connected PTSD. Both sets of symptoms should be clearly delineated. The examiner is reminded that the standard for consideration here is "at least as likely as not" (50 percent probability or greater); absolute certainty is not a requirement. If the examiner determines it is truly impossible to separate the symptoms of these two service-connected disabilities, then the examiner should explain why this is due to a lack of knowledge in the medical community at large and why a different clinician would come to the same result. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (finding that while an examiner cannot be compelled to provide an opinion where she cannot do so without resorting to mere speculation and explains the basis for this inability, the Board is not relieved from the obligation to determine whether the examiner's inability results from a personal lack of knowledge or experience, and if so, to attempt to obtain an opinion from a more qualified examiner). The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician regarding the current severity of the appellant's service-connected degenerative arthritis of the cervical spine. The examiner should answer the following: Is the appellant's loss of sensation in the left hand, both as reported by him and confirmed by diagnostic testing, at least as likely as not an "associated objective neurologic abnormality," such as radiculopathy, which is due to the appellant's service-connected degenerative arthritis of the cervical spine? Why or why not? If the clinician determines that this question cannot be answered without an examination, one should be scheduled. 2. Schedule the appellant for an examination by an appropriate clinician to determine the current severity of his service-connected residuals of traumatic brain injury (TBI). The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant's disability under the rating criteria. All necessary diagnostic testing should be conducted. The diagnostic testing conducted as part of the March 2017 private examination should be considered. (Continued on the next page) The examiner must explain what symptoms are attributable to the appellant's service-connected residuals of TBI and which symptoms are attributable to the appellant's service-connected PTSD. Both sets of symptoms should be clearly delineated by the examiner. The examiner is reminded that in separating the symptoms of these two disabilities, the standard for consideration here is "at least as likely as not" (50 percent probability or greater). Absolute certainty is not a requirement for attributing a symptom to one disability or the other. If the examiner determines it is truly impossible to separate which symptoms belong to on or the other of these two service-connected disabilities, then the examiner should explain why this is due to a lack of knowledge in the medical community at large and why a different clinician would come to the same result. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.