Citation Nr: 21027561 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-37 624 DATE: May 6, 2021 REMANDED Entitlement to an increased evaluation for a service-connected muscle tic of the left neck, currently evaluated 10 percent disabling prior to March 20, 2019, and 30 percent disabling, thereafter, is remanded. REASONS FOR REMAND The Veteran had active service from May 1978 to May 1982. This matter comes to the Board of Veterans' Appeals (Board) from a June 2012rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with this determination, and the present appeal ensued. In March 2019, the Veteran presented oral testimony in support of his appeal at a board hearing that was conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment. A transcript of this hearing is of record. The Veteran's appeal was previously before the Board in August 2019 and December 2020, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. In a February 2021 Decision Review Officer (DRO) decision, the AOJ partially granted the Veteran's appeal, increasing the assigned evaluation from 10 percent to 30 percent, effective from March 20, 2019 the date of the Board hearing. This represented a partial allowance of the Veteran's appealed issue and resulted in a "staged" evaluation for this disability. Since this issue was not granted to the fullest extent, it remains in appellate status and has been recharacterized as stated on the title page to reflect the "staged" evaluation. Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 1. Entitlement to an increased evaluation for a service-connected muscle tic of the left neck, currently evaluated 10 percent disabling prior to March 20, 2019, and 30 percent disabling, thereafter, is remanded. While further delay is regrettable, for the reasons detailed below, the Board concludes that another remand is necessary to obtain advisory opinions from an independent medical expert under 38 U.S.C. § 5109(a) and 38 C.F.R. § 3.328 due to critical, unanswered medical questions that are outside of the Board's purview. By way of history, the Veteran began experiencing involuntary movements, described as spasms and tics, in the left side of his neck, chest, shoulder, and face, during active duty. Within his initial post-service year, the Veteran filed a claim to establish service connection for the underlying disability causing these symptoms, among other disabilities. He was provided a VA examination in connection with this claim in December 1982, and while diagnostic testing was inconclusive, the examiner noted that the Veteran demonstrated involuntary, intermittent muscle tics or spasms in his left neck, chest, shoulder, and face. Based on the above findings, by a February 1983 rating decision, the AOJ established service connection for "muscle tic of the neck, left," and a 10 percent initial evaluation was assigned under hyphenated Diagnostic Codes 8399-8305. This hyphenated code is intended to show that the Veteran's service-connected disability was unlisted in VA's Rating Schedule, and thus, it was rated analogously to neuritis of the fifth (trigeminal) cranial nerve under Diagnostic Code 8305. 38 C.F.R. § 4.27 (providing that unlisted disabilities rated by analogy are coded first by the numbers of the most closely related body part and then "99"). It appears that the AOJ established service connection for the Veteran's symptoms rather than the underlying disability causing such, and the importance of this will be underlined below. On December 27, 2010, the AOJ received a claim from the Veteran to establish a total evaluation based on individual unemployability due to service-connected disabilities (TDIU). The AOJ expanded this claim to include claims for increased evaluation for all of the Veteran's service-connected disabilities, to include his muscle tic of the left neck. As the current appeal stems from this filing, the appeal period for consideration before the Board is from December 27, 2009, to the present. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). While the Veteran's muscle tic of the left neck persisted during the extended pendency of the appeal, the focus of his medical treatment was concentrated on other medical matters, notably, diagnosis of and treatment for Non-Hodgkin's lymphoma. Nonetheless, the limited evidence reflecting his neck tic symptoms unambiguously shows progression of the underlying disability. The Veteran's left neck, tic, twitching, spasms, occurred three times per year and lasted fifteen-to-twenty seconds at the time of the February 2012 VA examination, but by the completion of an April 2018 VA examination, the Veteran reported that his head shook "all the time." At the March 2019 Board hearing, the Veteran reported that these symptoms occurred two-to-three times per week and lasted as much as 45 minutes. A September 2020 VA examination report confirmed that these symptoms had worsened significantly, but did not provide further detail concerning the frequency, severity, and duration of such. Most recently, a February 2021 VA examination reflects that the Veteran experiences "constant movement of his head and left neck, and the myoclonic tic/jerking was noted to be moderately-severe; however, the examiner could not comment on when these symptoms worsened despite review of the file. In the December 2020 remand, the Board noted the possibility of evaluating the Veteran's symptoms by analogy under impairment of the affected nerve(s), muscle group(s), or Diagnostic Code 8103, pertaining to convulsive tics, which provides 30, 10, and, zero percent evaluations for tics that are severe, moderate, or mild, respectively, dependent upon the frequency and severity of the symptoms and muscle groups involved. As such, the December 2020 Board's directives requested that the VA specifically identify the nerve(s) and muscle group(s) affected by the Veteran's underlying disability, which remains unidentified. This unaddressed point is considered crucial to readjudicating the Veteran's appeal because, while separate evaluations may be assigned for a disability affecting separate body systems (i.e., muscles and nerves), VA's anti-pyramiding regulation precludes the assignment of separate evaluations for downstream manifestations of the same disability. After a review of the file and an examination of the Veteran, the February 2021 VA examiner continued to identify the Veteran's chief symptom (muscle tic of the left neck), noting that such involved the "spinal accessory nerve (cranial nerve XII)" and "muscles of the side an back of the neck[,] group XX." Based on these findings, the AOJ evaluated the Veteran's service-connected disability by analogy under Diagnostic Code 8212, pertaining to incomplete severe paralysis of the twelfth (hypoglossal) cranial nerve. While noting the Court's holding in Colvin v. Derwinski, 1 Vet. App. 171 (1991), the Board observes that some of the information provided by the February 2021 VA examiner is incongruent with VA's Rating Schedule. First, the spinal accessory nerve identified by the examiner, which controls movements of the shoulders and head, is the eleventh, not twelfth, cranial nerve. Further, the muscles of the side and back of the neck are within Muscle Group XXII, not XX, as stated by the examiner. Further, it remains unclear whether the Veteran's muscle tic is the result of a purely neurological disability with downstream affects to the innervated muscle group or a disability which independently affects one or more cranial nerves and/or muscle groups. In sum, the Board's ability to readjudicate the Veteran's appeal with consideration of rating the disability by analogy to any applicable Diagnostic Code, which is necessary under the law, is frustrated by the unsettled matters concerning the involved nerves and muscle groups and the identity of the precise disability underlying the Veteran's muscle tic. To the latter point, the Board observes that Diagnostic Code 8104 pertains to paramyoclonus multiplex (convulsive state, myoclonic type) and provides that severe, convulsive cases should be rated 60 percent disabling. The Board is unaware of the propriety of rating the Veteran's symptoms by analogy to the criteria within this Diagnostic Code because of the tenuous nature of the Veteran's exact diagnosis and affected nerves and muscles. As alluded to above, due to the medical complexity of the matters at issue in the Veteran's appeal, the Board concludes that an independent medical expert should provide medical advisory opinions regarding these critical matters. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all update records of VA and private treatment, with the Veteran's assistance regarding the latter. 2. Thereafter, pursuant to 38 U.S.C. § 5109(a), the AOJ must obtain advisory medical opinions from an independent medical expert who specializes in Neurology. After the clinician reviews the complete file, he/she is requested to address the following: a. Based on a review of the evidence of record, please explain whether the Veteran's left neck muscle tic is a standalone disability of any particular nerve(s), muscle(s), and/or muscle group(s) or a symptom or cluster of symptoms of a disability affecting any particular nerve(s), muscle(s), and/or muscle group(s). *In sum, the Board is asking for clarification concerning the identity of the disability that results in the Veteran's left neck muscle tic and the physiological mechanism which results in the manifestations of the disability. For instance, is the left neck muscle tic the result of the underlying disability's impact on the affected muscle(s)/muscle group(s), the nerve innervating the affected muscle(s)/muscle group(s), or both? b. Please define paramyoclonus multiplex (convulsive state, myoclonic type) and comment on whether or not the Veteran's exhibited symptoms are congruent with this disability. *Essentially, the Board is asking for an explanation of how this disability is similar to and/or different from the Veteran's service-connected disability manifested by a left neck muscle tic. c. Please identify each nerve, muscle, and muscle group affected by the disability manifested by the Veteran's left neck muscle tic. *If the independent medical expert finds that further examination and/or testing of the Veteran is necessary in order to answer the above questions, he/she is asked to outline what further examination and/or testing is necessary. 3. Only if the independent medical expert finds that further examination and/or testing of the Veteran is necessary, the AOJ must request that the additional examination and/or testing be completed in accordance with the guidance provided by the independent medical expert. The Veteran must receive notice of the time and place to report for the additional examination and/or testing. 4. Thereafter, the examination and/or testing results must be returned to the independent medical expert, who after reviewing such, must address any remaining questions posed in directive (2). Corrective measures, at the independent medical expert's discretion, may be taken until the medical evidence of record is adequate for the purpose of responding to all parts of directive (2). 5. Thereafter, the AOJ must readjudicate the Veteran's appeal based on the totality of the record. If the benefit sought is not granted to the fullest extent, the Veteran and his private attorney must be provided a copy of the readjudication and provided an adequate opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Scott W. Dale, 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.