Citation Nr: 21075554 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-30 785 DATE: December 20, 2021 ORDER 1. Entitlement to a disability rating in excess of 10 percent for residuals right pelvis injury with diaslignment symphysis pubis is denied. 2. Entitlement to a disability rating in excess of 10 percent for residuals status post fracture left acetabulum and symphysis pubis, rated on the basis of limitation of flexion of the thigh, is denied. 3. Entitlement to a compensable disability rating for right hip limitation of extension associated with residuals right pelvis injury with diaslignment symphysis pubis, rated on the basis of limitation of flexion of the thigh, is denied. 4. Entitlement to a compensable disability rating for left hip limitation of extension associated with residuals status post fracture left acetabulum and symphysis pubis is denied. 5. Entitlement to a compensable disability rating for left hip limitation of abduction associated with residuals status post fracture left acetabulum and symphysis pubis for the period prior to March 20, 2017 and from October 6, 2020 onward is denied. 6. Entitlement to a compensable disability rating for right hip limitation of abduction associated with residuals right pelvis injury with diaslignment symphysis pubis for the period prior to March 20, 2017 and from October 6, 2020 onward is denied. REMANDED 1. Entitlement to service connection for residuals of traumatic brain injury is remanded. 2. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. The weight of the evidence is against a finding that, at any point during the period on appeal, the Veteran's residuals of right pelvis injury with diaslignment symphysis pubis have manifested as limitation of flexion to 30 degrees or less, or as fracture of the shaft or anatomical neck of the femur. 2. The weight of the evidence is against a finding that, at any point during the period on appeal, the Veteran's status post fracture left acetabulum and symphysis pubis has manifested as limitation of flexion to 30 degrees or less, or as fracture of the shaft or anatomical neck of the femur. 3. The weight of the evidence is against a finding that, at any point during the period on appeal, the Veteran's residuals of right pelvis injury with diaslignment symphysis pubis have manifested as limitation of extension to 5 degrees. 4. The weight of the evidence is against a finding that, at any point during the period on appeal, the Veteran's status post fracture left acetabulum and symphysis pubis has manifested as limitation of extension to 5 degrees. 5. The weight of the evidence is against a finding that for the period prior to March 20, 2017 and from October 6, 2020 onward the Veteran's left hip limitation of abduction associated with residuals status post fracture left acetabulum and symphysis pubis manifested as limitation of adduction, cannot cross legs; or limitation of rotation, cannot toe-out more than 15 degrees. 6. The weight of the evidence is against a finding that for the period prior to March 20, 2017 and from October 6, 2020 onward the Veteran's right hip limitation of abduction associated with residuals right pelvis injury with diaslignment symphysis pubis manifested as limitation of adduction, cannot cross legs; or limitation of rotation, cannot toe-out more than 15 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for residuals right pelvis injury with diaslignment symphysis pubis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. 2. The criteria for entitlement to a disability rating in excess of 10 percent for residuals status post fracture left acetabulum and symphysis pubis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. 3. The criteria for entitlement to a compensable disability rating for left hip limitation of extension associated with residuals status post fracture left acetabulum and symphysis pubis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. 4. The criteria for entitlement to a compensable disability rating for right hip limitation of extension associated with residuals right pelvis injury with disalignment symphysis pubis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. 5. The criteria for entitlement to a compensable disability rating for left hip limitation of abduction associated with residuals status post fracture left acetabulum and symphysis pubis for the period prior to March 20, 2017 and from October 6, 2020 onward have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. 6. The criteria for entitlement to a compensable disability rating for right hip limitation of abduction associated with residuals right pelvis injury with diaslignment symphysis pubis for the period prior to March 20, 2017 and from October 6, 2020 onward have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from February 1974 to December 1977, and from December 1977 to December 1980. These matters originate from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied a May 2010 claim for a disability rating in excess of 10 percent for residuals right pelvis injury with diaslignment symphysis pubis and residuals status post fracture left acetabulum and symphysis pubis; a September 2009 VA RO rating decision that denied entitlement to a total disability rating based on individual unemployability (TDIU); and a May 2013 rating decision that denied a request to reopen a previously denied claim for service connection for residuals of a traumatic brain injury (TBI). In January 2021 the Board granted the Veteran's request to reopen his claim for TBI residuals and remanded the underlying service connection claim for substantive development and adjudication. These matters were previously before the Board of Veterans' Appeals (Board) in June 2021, at which time they were remanded to obtain an addendum VA medical opinion regarding the severity of the Veteran's right pelvis and left acetabulum disabilities throughout the period on appeal; and an addendum VA medical opinion as to the nature and etiology of the Veteran's claimed TBI residuals, to include physical, behavioral, or cognitive symptoms. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed further below, VA medical opinions were obtained in September 2021 and October 2021. Accordingly, the Board finds that there has been substantial compliance with its June 2021 remand directives as to the Veteran's right pelvis and left acetabulum claims, and adjudication of the Veteran's appeal on the merits is appropriate. However, as discussed further below, the Board finds that there has not been substantial compliance with its remand directives as they relate to the Veteran's TBI claim. Accordingly, additional remand is required. Increased Rating The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. A review of these claims' procedural history is necessary to clarify the scope of claims currently before the Board. In May 2010 the Veteran filed a claim for an increased rating for his right pelvis and left acetabulum (right and left hip) disabilities. At that time, each disability had been assigned a 10 percent rating under a hyphenated Diagnostic Code: 5255-5252. Both disabilities were rated under Diagnostic Code 5252 on the basis of limitation of flexion of the thigh. During the pendency of this appeal, the Veteran was granted separate disability ratings for his right and left disabilities on the basis of limitation of extension and limitation of abduction. The Board is required to consider all issues raised either by the claimant or by the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 552 (2008). The Veteran is assumed to be seeking the highest evaluation available. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the Board finds that while no appeal has been initiated or perfected as to the rating decisions granting separate ratings for his right and left hip disabilities on the basis of limitation of extension and abduction, these issues are part and parcel of his original May 2010 increased rating claim. Accordingly, the issues of appropriate ratings for the Veteran's right and left hip limitation of extension and abduction are properly before the Board. The Veteran has been assigned has been assigned two separate disability ratings of 20 percent for limitation of abduction of his right and left hip for the period from March 20, 2017 to October 5, 2020. A 20 percent rating represents the highest available rating for limitation of abduction. 38 C.F.R. § 4.71a. As the highest available rating has been assigned to the Veteran's right and left hip limitation of abduction for the period from March 20, 2017 to October 5, 2020, the Board concludes that this element of his claim is moot. There have been no contentions to the effect that the disability picture is so unusual that it cannot be fully contemplated by the rating schedule such as to trigger application of 38 C.F.R. § 3.321. The highest available rating has not been assigned with respect to the Veteran's right and left hip limitation of flexion and limitation of extension, nor to his right and left hip limitation of abduction with respect to the period prior to March 20, 2017 or from October 6, 2020 onward. As the highest possible rating has not been assigned for the periods on appeal, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the context of examinations evaluating functional loss in the musculoskeletal system under diagnostic codes based upon limitation of motion, when pain is associated with movement, to be adequate for rating purposes an examination must address whether pain could significantly limit functional ability during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Mere lack of occasion to observe the joint during a flare-up or after prolonged use is an insufficient basis for finding it speculative to respond. Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). The Veteran has been afforded several VA examinations in relation to his bilateral hip disabilities. He denied flare ups in June 2010, February 2012, August 2015, and October 2020. The Veteran did report flare ups in March 2017. In June 2021 the Board remanded the Veteran's bilateral hip disability claim for an addendum VA opinion that provided range of motion estimates during flare ups consistent with the holdings in Mitchell, DeLuca, and Sharp. A September 2021 VA examiner opined that the Veteran's bilateral hip range of motion in flexion, abduction, and extension would be decreased by 5 degrees. The Board will apply this analysis throughout its evaluation of the Veteran's bilateral hip disabilities. The Board also notes that it has evaluated the Veteran's limitation of flexion, extension, and abduction under the applicable rating criteria in effect at the time of his May 2010 claim and those currently in effect. The two sets of rating criteria are substantively identical, with only formatting changes having been made during the pendency of the appeal. 38 C.F.R. § 4.71a (2010); 38 C.F.R. § 4.71a (2021). 1. Entitlement to a disability rating in excess of 10 percent for residuals right pelvis injury with diaslignment symphysis pubis and a disability rating in excess of 10 percent for residuals status post fracture left acetabulum and symphysis pubis, rated on the basis of limitation of flexion of the thigh, are denied. The Veteran's bilateral limitation of flexion of the thigh are currently assigned a 10 percent rating under a hyphenated Diagnostic Code: 5255-5252. Under Diagnostic Code 5252, progressively higher ratings are available where the evidence shows limitation of flexion limited to 30 degrees or higher, culminating in a 40 percent rating for limitation of flexion to 10 degrees. Ratings under Diagnostic Code 5255 begin at 60 percent and progress to 80 percent; ratings under Diagnostic Code 5255 are warranted where the evidence shows fracture of the shaft or anatomical neck of the femur, among other requirements. There is no evidence of any fracture of the shaft or anatomical neck of the femur at any point during the period on appeal. Accordingly, no rating of 60 percent or higher is available under Diagnostic Code 5255. In June 2010 the VA examiner documented right hip flexion to 45 degrees and left hip flexion to 90 degrees, with pain beginning at 20 degrees and 70 degrees, respectively. The Board acknowledges that right hip pain began at 20 degrees of flexion. However, pain is only relevant to the extent that it results in significant limitation of functional ability. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, the Veteran was able to achieve an additional 50 degrees of flexion after pain began at 20. The Veteran denied flare ups. The examiner documented no additional loss of flexion after repetitive use of the joint. In February 2012 the VA examiner documented right hip flexion to 90 degrees and left hip flexion to 100 degrees, increasing to 100 degrees and 110 degrees respectively after three repetitions. Pain began at 50 degrees flexion bilaterally. While the Veteran denied flare ups, the February 2012 VA examiner documented that there would be less movement than normal bilaterally after repetitive use over time, but did not express this in terms of range of motion. Applying the September 2021 examiner's flare up estimates to the February 2012 examination results, results in an estimate of right hip flexion to 85 degrees and left hip flexion to 95 degrees after repeated use over time. In August 2015 the VA examiner documented right hip flexion to 100 degrees and left hip flexion to 105 degrees. The examiner noted that bilateral hip flexion was limited by extremely protruberant abdominal girth. No additional loss of flexion was documented after three repetitions. The Veteran denied flare ups. The August 2015 examiner declined to estimate additional range of motion loss following repetitive use over time, stating that no such additional loss of use was reflected in the medical records. The Board finds this rationale for refusal to estimate to be adequate in light of the Court of Appeals for Veterans Claim (CAVC) discussion of the duty of VA examiners to attempt to ascertain adequate information regarding range of motion during flare ups. Sharp v. Shulkin, 29 Vet. App. 26, 35 (U.S. 2017). In March 2017 the VA examiner documented bilateral hip flexion to 90 degrees, with no additional loss of function or range of motion after three repetitions. The Veteran reported flare ups, stating "when my right hip flares after standing just about 5 minutes I have to sit and rest." The examiner declined to speculate as to additional loss of function or range of motion during flare ups. Applying the September 2021 VA examiner's flare up estimates to the March 2017 examination results in an estimate of bilateral hip flexion to 85 degrees. In October 2020 a VA examiner estimated the Veteran's right hip flexion after repeated use over time to be 90 degrees and left hip flexion to be 100 degrees. The Veteran denied flare ups. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of an evaluation in excess of 10 percent for the Veteran's right and left hip limitation of flexion; thus, there is no question to resolve, and the lower rating is appropriate. Id. In light of the foregoing, a grant of a disability rating in excess of 10 percent for right and left hip limitation of flexion for the period on appeal is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 2. Entitlement to a compensable disability rating for left hip limitation of extension associated with residuals status post fracture left acetabulum and symphysis pubis and entitlement to a compensable disability rating for right hip limitation of extension associated with residuals right pelvis injury with disalignment symphysis pubis are denied. The Veteran's limitation of extension of his right and left hip are rated under Diagnostic Code 5251for limitation of extension of the thigh. A compensable rating under Diagnostic Code 5251 requires a showing of a limitation of extension to 5 degrees. In June 2010 the VA examiner documented right hip extension to 10 degrees, with pain throughout, and left hip extension to 20 degrees with pain at the end point. The Board acknowledges the report of pain throughout all 10 degrees of right hip extension. However, pain is only relevant to the extent that it results in significant limitation of functional ability. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, the Veteran was able to achieve 10 degrees of extension, pain notwithstanding. The Veteran denied flare ups and the examiner did not record any additional loss of range of motion on repetitive use. The February 2012 VA examiner documented bilateral hip extension of greater than 5 degrees. The examiner recorded that there was no objective evidence of painful motion for the right hip, and that painful motion of the left hip did not begin until beyond 5 degrees. The Veteran denied flare ups. The August 2015 examiner documented bilateral hip extension to 20 degrees. No additional loss of flexion was documented after three repetitions. The Veteran denied flare ups. The August 2015 examiner declined to estimate additional range of motion loss following repetitive use over time, stating that no such additional loss of use was reflected in the medical records. The Board finds this rationale for refusal to estimate to be adequate in light of the Court of Appeals for Veterans Claim (CAVC) discussion of the duty of VA examiners to attempt to ascertain adequate information regarding range of motion during flare ups. Sharp v. Shulkin, 29 Vet. App. 26, 35 (U.S. 2017). The March 2017 VA examiner documented bilateral hip extension to 15 degrees, with no additional loss of function or range of motion after three repetitions. The Veteran reported flare ups, stating "when my right hip flares after standing just about 5 minutes I have to sit and rest." The examiner declined to speculate as to additional loss of function or range of motion during flare ups. Applying the September 2021 VA examiner's flare up estimates to the March 2017 examination results in an estimate of bilateral hip extension to 10 degrees. In October 2020 a VA examiner estimated the Veteran's bilateral hip extension to 30 degrees, with no additional loss of use or range of motion after observed repetitive use. The Veteran denied flare ups. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of a compensable evaluation for the Veteran's right and left hip limitation of extension; thus, there is no question to resolve, and the lower rating is appropriate. Id. In light of the foregoing, a grant of compensable disability rating for right and left hip limitation of extension for the period on appeal is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 3. Entitlement to a compensable disability rating for left hip limitation of abduction associated with residuals status post fracture left acetabulum and symphysis pubis for the period prior to March 20, 2017 and from October 6, 2020 onward and entitlement to a compensable disability rating for right hip limitation of abduction associated with residuals right pelvis injury with diaslignment symphysis pubis for the period prior to March 20, 2017 and from October 6, 2020 onward are denied. The Veteran's limitation of abduction of his right and left hip are rated under Diagnostic Code 5253 for limitation of abduction of the thigh. A compensable rating under Diagnostic Code 5251 requires a showing of a limitation of abduction such that Veteran cannot toe-out more than 15 degrees, or that the Veteran cannot cross legs. A 20 percent rating requires a showing that of loss of abduction beyond 10 degrees. The February 2012 examiner recorded no limitation of leg crossing or toeing out and no loss of abduction beyond 10 degrees. The Veteran denied flare ups. The August 2015 examiner record full bilateral abduction to 45 degrees. The August 2015 examiner did record pain on abduction of the right hip. However, pain is only relevant to the extent that it results in significant limitation of functional ability. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011), DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Saunders v. Wilkie, 886 F.3d 1356, 1368 (Fed. Cir. 2018). Here, the Veteran was able to full abduction, pain notwithstanding. The Veteran denied flare ups and the examiner did not record any additional loss of range of motion on repetitive use. The August 2015 examiner declined to estimate additional range of motion loss following repetitive use over time, stating that no such additional loss of use was reflected in the medical records. The Board finds this rationale for refusal to estimate to be adequate in light of the Court of Appeals for Veterans Claim (CAVC) discussion of the duty of VA examiners to attempt to ascertain adequate information regarding range of motion during flare ups. Sharp v. Shulkin, 29 Vet. App. 26, 35 (U.S. 2017). The October 2020 VA examiner documented no limitations on leg crossing; right hip limitation of abduction to 30 degrees; and left hip limitation of abduction to 35 degrees, with no additional loss of use or range of motion after observed repetitive use. The Veteran denied flare ups. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the application of a compensable evaluation for the Veteran's right and left hip limitation of abduction for the period prior to March 20, 2017 and from October 6, 2010 onward; thus, there is no question to resolve, and the lower rating is appropriate. Id. In light of the foregoing, a grant of compensable disability rating for right and left hip limitation of abduction for the period March 20, 2017 and from October 6, 2010 onward is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. REASONS FOR REMAND The Board finds that the Veteran's TBI and TDIU claims should be remanded for the reasons discussed below. Additionally, the Board now finds that it must provide the Veteran notice of clarification of the status of the evidence currently before it. VA must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The principles of fair process require the Board to provide claimants notice and an opportunity to respond when it purports to reverse prior assertions that evidence is credible or otherwise satisfactory to establish a fact necessary to the claim or when the Board's order would leave the impression that it had determined that the evidence was credible. Smith v. Wilkie, 32 Vet. App. 332, 334 (U.S. 2020). In its June 2021 remand, the Board cited to an August 2008 written statement from an individual identified as "B----- H-----" (B.H.). In the August 2008 written statement, B.H. stated that they had known the Veteran for 56 years and that "his tour of duty in Southeast Asia resulted in major changes in his behavior." In its June 2021 reasons for remand the Board referenced B.H.'s claimed observation of behavioral changes. To the extent that this implied a favorable finding as to the credibility of B.H.'s statement, the Board now withdraws this finding. VA has received several written statements from B.H. in August 2008, December 2010, January 2011, and April 2011. The statements are inconsistent both internally and with each other as to B.H.'s purported qualifications and relation to the Veteran. In August 2008 B.H. identified themselves as "Dr." and claimed to provide an analysis of the Veteran's "present state of medical and psychological existence." However, in the same statement, B.H. identified themselves as having a relationship with the Veteran spanning 56 years; it is unclear whether this relationship was a personal relationship, a medical treating relationship, or both. The premise of B.H.'s analysis of the Veteran's medical and psychological status is thus similarly unclear. In December 2010 B.H. again wrote to VA on behalf of the Veteran, this time with the post nominal letters "J.D." and the professional title "President/CEO", but no indicia of any medical qualifications. In this statement B.H. claimed a personal relationship with the Veteran spanning "from child to present." Notwithstanding the lack of any identified medical credentials in this statement, B.H. again purported to provide an analysis of the Veteran's employment prospects and need for rehabilitative therapy. In January 2011 the Veteran provided an item of September 2010 correspondence from B.H. to the Department of Education. In this correspondence, B.H. is identified in the letterhead as "Dr. B----- H-----." B.H. purports to "provide an overview of [their] observation in relation to the physical and psychological daily functioning of" the Veteran. In April 2011 VA received another letter from B.H., this time with the prenominal title "Dr." and the professional title "President/CEO." The April 2011 statement, in full, reads as follows: "I agree with [treating provider's] diagnosis that [the Veteran] is unemployable. Physically employment is not a rational option. [The Veteran] should be awarded full disability." The Board here notes that even if a favorable finding were made as to B.H.'s medical qualifications, a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion. Stefl v. Nicholson, 21 Vet. App. 120, 125 (U.S. 2007). In light of the foregoing, the Board now finds that the record is unclear as to B.H.'s professional qualifications and relation to the Veteran, and/or the context of their observations regarding the nature and severity of the Veteran's claimed disabilities. Accordingly, the Board now withdraws any implied prior finding of competence or credibility as to B.H. In this remand, the Board will refrain from making any additional finding, favorable or unfavorable, as to B.H.'s competence and credibility, and the probative value (if any) of their written statements to VA. As the Veteran's TBI and TDIU claims are being remanded, the Board finds that the Veteran is being provided notice of the Board's withdrawal of any prior implied finding, and an opportunity to respond, consistent with Smith v. Wilkie, 32 Vet. App. 332, 334 (U.S. 2020), and there is no prejudice to the Veteran in the Board's withdrawal of any prior finding of credibility or probative weight. 1. Entitlement to service connection for residuals of traumatic brain injury and entitlement to TDIU are remanded. The Veteran seeks entitlement to service connection for residuals of a traumatic brain injury he contends he suffered as the result of a motor vehicle accident (MVA) during his period active service. A November 1979 hospital discharge note reflects a diagnosis of cerebral contusion following a motor vehicle accident during the Veteran's second period of active service. Providers stated that the Veteran was "comatose and combative" at the time of admission. A March 1980 military medical board proceeding documents that the Veteran had periods of "emotional depression" following the 1979 MVA. An October 1980 entry in the Veteran's service treatment records reflects complaints of headaches. The Veteran reported headaches to VA treating providers in January 1981, June 1990, July 1990, October 1993, December 1995, February 2009, January 2016, May 2016, June 2016, April 2017, August 2020, and September 2020. In a March 1981 written statement to VA, the Veteran reported having been hospitalized for a "nervous condition." The Veteran was afforded VA examinations in May 2013 and May 2020. The Board addressed the deficiencies in these examinations in its June 2021 remand. A new VA medical opinion was obtained in October 2021. The Board now finds this opinion to be inadequate. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). VA must consider all lay and medical evidence of record. 38 U.S.C. § 1154(a); 38 U.S.C. § 5107; 38 C.F.R. § 3.303. The October 2021 VA examiner opined that the Veteran did not have any current residuals of a TBI. The examiner based this opinion, in part, on a history of reports of headaches that stops (according to the examiner) in October 1980. The examiner does not reference or discuss any of the VA treatment records reflecting the Veteran's complaints of headaches to VA treating providers in January 1981, June 1990, July 1990, October 1993, December 1995, February 2009, January 2016, May 2016, June 2016, April 2017, August 2020, and September 2020. Further, the examiner does not acknowledge September 2020 VA treatment records reflecting a diagnosis of migraine headaches and the prescription of sumatriptan for treatment. The Board finds that the October 2021 VA examination does not reflect consideration of all the evidence of record. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board concludes that there has not been substantial compliance with its June 2021 remand directives relating to the Veteran's TBI claim, and additional remand is therefore necessary. Because evidence developed in the course of adjudicating the Veteran's claim to service connection for TBI could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined and a remand of the Veteran's TDIU claim is required. The matters are REMANDED for the following action: 1. Forward the claims file, including this remand, to the examiner who provided the October 2021 opinion. If the October 2021 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. (Continued on the next page) The examiner should identify and discuss any TBI residuals disabilities identified during record review and/or examination that are either currently present or present at any time during the pendency of this claim. For each identified or diagnosed residual, please respond to the following: whether it is at least as likely as not that any current symptoms or residuals, to include physical, behavioral, or cognitive symptoms, are the result of the Veteran's November 1979 in-service head injury. The examiner's opinion should reflect consideration of all evidence of record, to include any diagnostic testing pertinent to any physical, behavioral, or cognitive symptoms of TBI. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. C. Sametshaw 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.