Citation Nr: 21028791 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 13-34 577 DATE: May 12, 2021 ORDER Entitlement to service connection for right ear disability is denied. Entitlement to an initial disability rating of 30 percent, but no higher, for a cervical spine disorder is granted. Entitlement to an initial disability rating of 40 percent, but no higher, for a thoracolumbar spine disorder is granted. Entitlement to an initial disability rating in excess of 10 percent for residuals of a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for hypertension, including as secondary to service connected TBI or post-traumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Despite the Veteran's TBI, the preponderance of the evidence shows that he has not been diagnosed with a right ear disorder nor is the claimed disorder productive of functional impairment at any time during the pendency of the appeal. 2. The preponderance of the evidence shows that since January 31, 2012, the Veteran's cervical spine disorder is manifested by adverse symptomatology that equates to forward flexion of the cervical spine to 15 degrees or less but not unfavorable ankylosis of the entire cervical spine even when considering the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 4 weeks during any 12-month period at any time during the pendency of the appeal. 3. The preponderance of the evidence showed that since January 31, 2012, the Veteran's thoracolumbar spine disorder is manifested by adverse symptomatology that equates to forward flexion of the thoracolumbar spine to 30 degrees or less but not to at least unfavorable ankylosis of the entire thoracolumbar spine even when considering the Veteran's complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups nor by incapacitating episodes that required bed rest prescribed by a physician and treatment by a physician having a total duration of at least 6 weeks during any 12-month period at any time during the pendency of the appeal. 4. The preponderance of the evidence showed that the for the entire period on appeal the Veteran's TBI with complaint of cognitive memory impairment has been manifest by no more than mild memory loss and subjective symptoms but has not been productive of a level of severity higher than "1" for any facet due to cognitive impairment and subjective symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for right ear pain have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for a rating of 30 percent, but no higher, for a cervical spine disorder, have been met effective January 31, 2012. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, Diagnostic Codes (DCs) 5235 to 5243. 3. The criteria for a rating of 40 percent, but no higher, for a thoracolumbar spine disorder, have been met effective January 31, 2012. 38 U.S.C. §§ 1155, 5100, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.71a, DCs 5235 to 5243. 4. The criteria for an initial disability rating in excess of 10 percent for TBI with complaint of cognitive memory impairment have not been met at all times during the appeal. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. § 38 C.F.R. §§ 3.102, 3.159, 3.326, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.124a, DC 8045. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Marine Corps from July 1978 to January 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, granted service connection for a traumatic brain injury (TBI) and assigned a 10 percent disability rating, granted service connection for cervical spondylosis and assigned a 10 percent disability rating, granted service connection for thoracolumbar spondylosis and assigned a 10 percent disability rating, and denied service connection for hypertension and right ear pain. The Veteran testified before a Veterans Law Judge (VLJ) in March 2017. A copy of the March 2017 transcript has been reviewed and associated with the claims file. The VLJ has since retired. The Board sent a letter to the Veteran in August 2020, advising him of his right to request a second hearing. He did not respond to this letter requesting a second hearing within thirty (30) days. Therefore, the Board finds that the Veteran does not want another hearing and is proceeding accordingly. These matters were before the Board in June 2018 and October 2020, at which time they were remanded for additional evidentiary development. The Board notes that a December 2020 RO rating decision continued the ratings of 10 percent for the Veteran's cervical and lumbar conditions from January 31, 2012 to November 5, 2012, but increased the rating for a cervical spine disorder to 30 percent effective November 6, 2020, and increased the rating for a thoracolumbar spine disorder to 40 percent effective November 6, 2020. Post-Remand Compliance Initially, the Board finds that the post-Remand development complied with the Remands because the VA examinations dated in November 2020 provided opinions as the diagnoses right ear claim based on all theories of entitlement which opinions are supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature as well as supported by medical reasoning as well as provided needed opinions to rate his cervical spine disorder, thoracolumbar spine disorder, and TBI under all rating criteria. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development complied with the Remands because while the appeal was in Remand status all identified and available VA and private treatment records were obtained and associated with the record. Id. Therefore, the Board finds that further delay by remanding the appeal to provide the Veteran with a new VA examination or obtain additional treatment records is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Service Connection Claim The Veteran contends that his right ear disability manifested by pain is due to his military service or is secondary to his service connected TBI or PTSD. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Initially, the Board finds that the Veteran is competent and credible to report on what comes to him via his own senses like right ear pain. See Davidson, supra. Moreover, the Board finds as the RO found when it granted the Veteran service connection for a TBI in the March 2013 rating decision that the appellant had an in-service injury. Additionally, service treatment records show that Veteran began having right ear pain in September 2004 after exposure to an improvised explosive device. However, the September 2004 service treatment record concluded that there was no physical trauma to the right ear. Likewise, and more importantly, the Board notes that in November 2020 the Veteran was provided with another VA examination to obtain a medical opinion as to whether he had a chronic right ear disability and this examiner opined that he did not. Specifically, while the examiner acknowledged that the fact that Veteran has right ear pain, it was opined that there was no identifiable ear abnormality on examination. Therefore, no specific medical diagnosis was made. The examiner indicated a diagnosis of right ear otalgia, which is right ear pain. Furthermore, the examiner determined that the Veteran's right ear pain did not cause functional impairment. The examiner opined that the Veteran's right ear pain is less likely than not related to the service connected TBI because there is no sign of inflammation, scarring or other abnormality on examination. There is no evidence of middle or inner ear dysfunction on audiogram/tympanogram. It was determined by the examiner that it is most likely that the ear pain is referred pain from his cervical spine and cervical muscular tension. Therefore, it is a symptom of his cervical disorder. Moreover, the Board finds the November 2020 medical opinion is the most probative evidence of record because it was held for the express purpose of obtaining such a diagnosis and the negative opinion was provided after a review of the record on appeal and an examination of the Veteran as well as because it is supported by citation to the service treatment records, the post-service medical records, the appellant's competent and credible lay claims regarding observable symptomatology, and controlling medical literature as well as supported by medical reasoning. See Guerrieri, supra. Further, while the Veteran is competent to report on the symptoms he observes, the Board finds that he is not competent to diagnose chronic right ear disability because diagnosing it requires special medical training that he does not have. See Davidson, supra. The Board also finds that the facts of this appeal are distinguishable from those in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) because the findings by the November 2020 VA examiner opined that the claimed disability does not result in functional impairment that affects earning capacity. See Owens, supra; also see Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran does not have a diagnosis of a right ear disability at any time during the pendency of the appeal despite the documented TBI and this claim is denied. 38 U.S.C. §§ 1110, 1131, 38 C.F.R. § 3.303. In reaching the above conclusion, the Board has also considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, the Board finds that this doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-56. The Increased Rating Claims The Veteran contends that he is entitled to initial ratings in excess of 10 percent for his cervical spine disorder, thoracolumbar spine disorder, and TBI at all times during the appeal. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran's cervical spine disorder and thoracolumbar spine disorders are both rated under DC 5242. Specifically, the Veteran's cervical spine disorder has been assigned a 10 percent rating from January 31, 2012, to November 5, 2020, and 30 percent from November 6, 2020. 38 C.F.R. § 4.71a, DC 5242. The Veteran's thoracolumbar spine disorder has been assigned a 10 percent rating from January 31, 2012, to November 5, 2020, and 40 percent from November 6, 2020. 38 C.F.R. § 4.71a, DC 5242. The Board notes that on February 7, 2021, a change in the rating criteria for the musculoskeletal system went into effect. However, the change in the criteria does not impact the Veteran's evaluations because the ratings assigned herein are in excess of a rating available under DCs 5003 or 5010, and DC 5243 is not applicable because he does not have intervertebral disc syndrome. The General Rating Formula for Diseases and Injuries of the Spine, which is applicable in this instance, was not changed by February 7, 2021 updates. Therefore, he will not be prejudiced by it adjudicating these claims at this time. See Sabonis, supra. Under the old and new rating criteria, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 10 percent rating if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or a vertebral body fracture with loss of 50 percent or more of the height; a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or guarding severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; a 30 percent evaluation is warranted if forward flexion of the cervical spine is 15 degrees or less or there is favorable ankylosis of the entire cervical spine; a 40 percent rating if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 40 percent evaluation is warranted if there is unfavorable ankylosis of the entire cervical spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note(1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. Moreover, under the old and new rating criteria, the Formula for Rating Intervertebral Disc Syndrome provides a 10 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 1 week during the past 12 months, a 20 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 2 weeks during the past 12 months, a 40 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 4 weeks during the past 12 months, and a 60 percent rating if the adverse symptomatology includes incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Diagnostic Code 5243 defines an incapacitating episode as one where the Veteran has physician prescribed bed rest. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. Initially, in adjudicating below whether the Veteran meets the criteria for higher evaluations for his cervical spine and lumbosacral spine disabilities, the Board has not overlooked the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). Tellingly, the Board finds that the record is adequate to address the concerns raised by the Court in both these cases. Specifically, the Board finds that the November 2020 VA examination provides VA with medical opinion evidence adequate to rate the Veteran's disabilities when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner specifically addressed each of these concerns. The cervical spine and lumbosacral spine disorders As to ratings in excess of 10 percent for the cervical spine and lumbosacral spine disabilities from January 31, 2012, to November 5, 2020, the Board notes that the appeal has been pending since January 31, 2012. However, the regional office (RO) waited until November 2020 to provide the Veteran with another VA examination, since providing him an examination in April 2013, that specifically considered the Court's holdings in Correia, supra, and Sharp, supra. Moreover, at the November 2020 VA examination the Veteran's adverse cervical spine pathology included, with flare-ups, flexion being limited to 15 degrees and adverse lumbosacral spine pathology included flexion being limited to 30 degrees. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Tellingly, the Court has held that, "it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, the Board finds that when considering the Veteran's complaints of pain, flare-ups, as well as lost motion with weight bearing and non-weight bearing as direct by the Court in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, as well as when considering the appellant's competent reports of his observable adverse symptomatology since filing his claim on January 31, 2012, (see Davidson, supra), and with granting him the benefit of any doubt in this matter (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board concludes that the cervical spine disorder met the criteria for a 30 percent rating and the lumbosacral spine disorder met the criteria for a 40 percent rating under the General Rating Formula for Disease and Injuries of the Spine at all times from January 31, 2012. See Owens, supra; Tatum, supra; Young, supra. The Board has reached this conclusion because this rating specifically contemplates cervical spine flexion being 15 degrees or less and lumbosacral spine flexion being 30 degrees or less and when he was finally provided a VA examination that considered the above case law his cervical spine flexion was limited to 15 degrees and lumbosacral spine flexion was limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242; Fenderson, supra; Hart, supra; Owens, supra. As to a rating in excess of 30 percent for the cervical spine disability and in excess of 40 percent for the lumbosacral spine disability at any time from January 31, 2012, the Board finds that even when considering the Veteran's complaints of pain as per 38 C.F.R. §§ 4.40, 4.45, 4.59 and the Court's holding in Correia, Sharp, Mitchell, Burton, Southall-Norman, DeLuca, and Chavis v. McDonough, No. 18-2928 (2021) (holding that ankylosis of the spine may be shown based on symptoms of fixation of the joint equivalent to ankylosis) as well as when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), he does not meet the criteria for at least the next higher ratings because the record is negative for diagnosis of ankylosis of the entire cervical spine nor of the entire thoracolumbar spine. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Fenderson, supra; Hart, supra; VA examinations dated in December 2012, April 2013, September 2019, and November 2020. In this regard, the Board finds that because ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure (see Lewis v. Derwinski, 3 Vet. App. 259 (1992)), the Board finds that the range of motion studies at the Veteran's VA examinations which, at its' worst, show cervical spine flexion to 15 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left rotation to 40 degrees as well as lumbosacral spine flexion to 30 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left rotation to 15 degrees at the November 2020 VA examination does not equate to ankylosis. See Owens, supra. Likewise, the Board finds that the Veteran does not meet the criteria for a rating in excess of 30 percent for his cervical spine disability and in excess of 40 percent for his lumbosacral spine disability under the Formula for Rating Intervertebral Disc Syndrome at any time from January 31, 2012. The Board has reached this conclusion because the record did not show he ever had a total of at least 4 weeks of incapacitating episodes during any 12-month period because of his cervical spine disability or at least 6 weeks of incapacitating episodes during any 12-month period because of his lumbosacral spine disability. 38 C.F.R. § 4.71a, Diagnostic Code 5243; Fenderson, supra; Hart, supra. In fact, the November 2020 VA examiner reported that the Veteran had not had any physician ordered bed rest. Furthermore, Board finds that the Veteran as a lay person is not competent to provide this medical finding because he does not have the required training. See Davidson, supra; Colvin, supra. The TBI The Veteran's TBI has been rated under 38 C.F.R. § 4.124a, DC 8045. DC 8045 states there are three main areas of dysfunction that may result from TBIs and have profound effects on functioning: cognitive (which is common in varying degrees after a TBI), emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. 38 C.F.R. § 4.124a, DC 8045. Cognitive impairment is defined as decreased memory, concentration, attention, and executive functions of the brain. Executive functions are goal setting, speed of information processing, planning, organizing, prioritizing, self-monitoring, problem solving, judgment, decision making, spontaneity, and flexibility in changing actions when they are not productive. Not all of these brain functions may be affected in a given individual with cognitive impairment, and some functions may be affected more severely than others. In a given individual, symptoms may fluctuate in severity from day to day. Evaluate cognitive impairment under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Subjective symptoms may be the only residual of a TBI or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a TBI, whether or not they are part of cognitive impairment, under the subjective symptoms facet in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." However, separately evaluate any residual with a distinct diagnosis that may be evaluated under another diagnostic code, such as migraine headache or Meniere's disease, even if that diagnosis is based on subjective symptoms, rather than under the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table. Evaluate emotional/behavioral dysfunction under § 4.130 (Schedule of ratings-mental disorders) when there is a diagnosis of a mental disorder. When there is no diagnosis of a mental disorder, evaluate emotional/behavioral symptoms under the criteria in the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified." Evaluate physical (including neurological) dysfunction based on the following list, under an appropriate diagnostic code: motor and sensory dysfunction, including pain, of the extremities and face; visual impairment; hearing loss and tinnitus; loss of sense of smell and taste; seizures; gait, coordination, and balance problems; speech and other communication difficulties, including aphasia and related disorders, and dysarthria; neurogenic bladder; neurogenic bowel; cranial nerve dysfunctions; autonomic nerve dysfunctions; and endocrine dysfunctions. The preceding list of types of physical dysfunction does not encompass all possible residuals of a TBI. For residuals not listed here that are reported on an examination, evaluate under the most appropriate DC. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under § 4.25 the evaluations for each separately rated condition. The evaluation assigned based on the "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" table will be considered the evaluation for a single condition for purposes of combining with other disability evaluations. Consider the need for special monthly compensation (SMC) for such problems as loss of use of an extremity, certain sensory impairments, erectile dysfunction, the need for aid and attendance (including for protection from hazards or dangers incident to the daily environment due to cognitive impairment), being housebound, etc. Evaluation of Cognitive Impairment and Subjective Symptoms: the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" contains 10 important facets of a TBI related to cognitive impairment and subjective symptoms. It provides criteria for levels of impairment for each facet, as appropriate, ranging from 0 to 3, and a 5th level, the highest level of impairment, and labeled "total." However, not every facet has every level of severity. The Consciousness facet, for example, does not provide for an impairment level other than "total," since any level of impaired consciousness would be totally disabling. Assign a 100-percent evaluation if "total" is the level of evaluation for one or more facets. If no facet is evaluated as "total," assign the overall percentage evaluation based on the level of the highest facet as follows: 0 = 0 percent; 1 = 10 percent; 2 = 40 percent; and 3 = 70 percent. For example, assign a 70 percent evaluation if 3 is the highest level of evaluation for any facet. Note (1): There may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation Of Cognitive Impairment And Other Residuals Of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, do not assign more than one evaluation based on the same manifestations. If the manifestations of two or more conditions cannot be clearly separated, assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, assign a separate evaluation for each condition. Note (2): Symptoms listed as examples at certain evaluation levels in the table are only examples and are not symptoms that must be present in order to assign a particular evaluation. Note (3): "Instrumental activities of daily living" refers to activities other than self-care that are needed for independent living, such as meal preparation, doing housework and other chores, shopping, traveling, doing laundry, being responsible for one's own medications, and using a telephone. These activities are distinguished from "Activities of daily living," which refers to basic self-care and includes bathing or showering, dressing, eating, getting in or out of bed or a chair, and using the toilet. Note (4): The terms "mild," "moderate," and "severe" TBI, which may appear in medical records, refer to a classification of TBI made at, or close to, the time of injury rather than to the current level of functioning. This classification does not affect the rating assigned under DC 8045. The TBI table provides as follows: Facet 1: Memory, Attention, Concentration, Executive Functions 0: No complaints of impairment of memory, attention, concentration, or executive functions. 1: A complaint of mild loss of memory (such as having difficulty following a conversation, recalling recent conversations, remembering names of new acquaintances, or finding words, or often misplacing items), attention, concentration, or executive functions, but without objective evidence on testing. 2: Objective evidence on testing of mild impairment of memory, attention, concentration, or executive functions resulting in mild functional impairment. 3: Objective evidence on testing of moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment. Total: Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Facet 2: Judgment 0: Normal 1: Mildly impaired judgment. For complex or unfamiliar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. 2: Moderately impaired judgment. For complex or unfamiliar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision, although has little difficulty with simple decisions. 3: Moderately severely impaired judgment. For even routine and familiar decisions, occasionally unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. Total: Severely impaired judgment. For even routine and familiar decisions, usually unable to identify, understand, and weigh the alternatives, understand the consequences of choices, and make a reasonable decision. For example, unable to determine appropriate clothing for current weather conditions or judge when to avoid dangerous situations or activities. Facet 3: Social Interaction 0: Social interaction is routinely appropriate. 1: Social interaction is occasionally inappropriate. 2: Social interaction is frequently inappropriate. 3: Social interaction is inappropriate most or all of the time. Facet 4: Orientation 0: Always oriented to person, time, place, and situation. 1: Occasionally disoriented to one of the four aspects (person, time, place, situation) of orientation. 2: Occasionally disoriented to two of the four aspects of orientation or often disoriented to one aspect of orientation. 3: Often disoriented to two or more of the four aspects of orientation. Total: Consistently disoriented to two or more of the four aspects of orientation. Facet 5: Motor Activity (with intact motor and sensory system) 0: Motor activity normal. 1: Motor activity normal most of the time, but mildly slowed at times due to apraxia (inability to perform previously learned motor activities, despite normal motor function). 2: Motor activity mildly decreased or with moderate slowing due to apraxia. 3: Motor activity moderately decreased due to apraxia. Total: Motor activity severely decreased due to apraxia. Facet 6: Visual Space Orientation 0: Normal. 1: Mildly impaired. Occasionally gets lost in unfamiliar surroundings, has difficulty reading maps or following directions. Is able to use assistive devices such as global positioning system (GPS). 2: Moderately impaired. Usually gets lost in unfamiliar surroundings, has difficulty reading maps, following directions, and judging distance. Has difficulty using assistive devices such as GPS. 3: Moderately severely impaired. Gets lost even in familiar surroundings, unable to use assistive devices such as GPS. Total: Severely impaired. May be unable to touch or name own body parts when asked by the examiner, identify the relative position in space of two different objects, or find the way from one room to another in a familiar environment. Facet 7: Subjective Symptoms 0: Subjective symptoms that do not interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples are: mild or occasional headaches, mild anxiety. 1: Three or more subjective symptoms that mildly interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: intermittent dizziness, daily mild to moderate headaches, tinnitus, frequent insomnia, hypersensitivity to sound, hypersensitivity to light. 2: Three or more subjective symptoms that moderately interfere with work; instrumental activities of daily living; or work, family, or other close relationships. Examples of findings that might be seen at this level of impairment are: marked fatigability, blurred or double vision, headaches requiring rest periods during most days. Facet 8: Neurobehavioral Effects 0: One or more neurobehavioral effects that do not interfere with workplace interaction or social interaction. Examples of neurobehavioral effects are: irritability, impulsivity, unpredictability, lack of motivation, verbal aggression, physical aggression, belligerence, apathy, lack of empathy, moodiness, lack of cooperation, inflexibility, and impaired awareness of disability. Any of these effects may range from slight to severe, although verbal and physical aggression are likely to have a more serious impact on workplace interaction and social interaction than some of the other effects. 1: One or more neurobehavioral effects that occasionally interfere with workplace interaction, social interaction, or both but do not preclude them. 2: One or more neurobehavioral effects that frequently interfere with workplace interaction, social interaction, or both but do not preclude them. 3: One or more neurobehavioral effects that interfere with or preclude workplace interaction, social interaction, or both on most days or that occasionally require supervision for safety of self or others. Facet 9: Communication 0: Able to communicate by spoken and written language (expressive communication), and to comprehend spoken and written language. 1: Comprehension or expression, or both, of either spoken language or written language is only occasionally impaired. Can communicate complex ideas. 2: Inability to communicate either by spoken language, written language, or both, more than occasionally but less than half of the time, or to comprehend spoken language, written language, or both, more than occasionally but less than half of the time. Can generally communicate complex ideas. 3: Inability to communicate either by spoken language, written language, or both, at least half of the time but not all of the time, or to comprehend spoken language, written language, or both, at least half of the time but not all of the time. May rely on gestures or other alternative modes of communication. Able to communicate basic needs. Total: Complete inability to communicate either by spoken language, written language, or both, or to comprehend spoken language, written language, or both. Unable to communicate basic needs. Facet 10: Consciousness Total: Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. With the above criteria in mind, in December 2012 the Veteran was afforded a VA TBI examination. At that time, it was opined that the Veteran had mild memory loss, In November 2020, the Veteran was afforded a VA TBI examination. That examination included a headaches examination. The Board notes that the Veteran's subjective symptoms of headaches and anxiety cannot be used in assessing a rating for TBI because the Veteran is already being compensated for headaches with a separate 30 percent evaluation, and anxiety is being compensated as part of the 70 percent evaluation assigned for PTSD. Evaluation of the same manifestation under various diagnoses is prohibitedthe rule against "pyramiding." 38 C.F.R. § 4.14. In considering the facets, as described above, the examiner indicated that the Veteran complained of mild memory loss, which is a level of severity of "1" for the facet of "Memory, Attention, Concentration, Executive Functions." All other facets were a level of severity "0," essentially showing normal functionality. Therefore, the highest severity level for the cognitive impairment and subjective and symptoms facets is "1," warranting a 10 percent evaluation. The same determinations were made when the Veteran was afforded VA TBI examinations in December 2012 and September 2019. Moreover, the Board finds that nothing in the treatment records show the appellant's adverse TBI symptomatology to be worse than what was reported by the above VA examiners. See Colvin, supra. As to the lay statements found in the record from the Veteran and his representative regarding the severity of the appellant's TBI symptoms, the Board finds that they are competent and credible to report on what comes to them via their own senses. See Davidson, supra. However, the Board finds the VA examiners opinions as to the severity of the claimant's TBI symptoms more probative because healthcare professionals have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Simply stated, a medical professional is better qualified to tell us what injury caused what problems. Given the findings by the above VA examiners, and with giving the Veteran the benefit of doubt in this matter, the Board finds that the most probative evidence of record are the above VA examinations which shows, at its worse, he had a facet of "1" in the 10 facets of a TBI related to cognitive impairment and subjective and symptoms. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.124a, Diagnostic Code 8045; Gilbert, supra; Owens, supra; Colvin, supra. Therefore, because the Veteran's highest facet is a "1," the Board finds that the criteria for a rating in excess of 10 percent for his TBI have not been met at any time during the appeal and this claim is denied. 38 C.F.R. § 4.124a, Diagnostic Code 8045; also see Fenderson, supra; Hart, supra. Conclusion In reaching the above conclusions, the Board has not overlooked Rice v. Shinseki, 22 Vet. App. 447 (2009) and a claim for a total rating based on individual unemployability (TDIU). However, given the fact that the above grant of increased rating will provide the Veteran with a combined 100 percent rating at all times during the appeal, the Board finds that it need not address this claim at this time. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims to the extent outlined above, the Board finds that the doctrine is not for application. See also, e.g., Ortiz, supra; Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for hypertension is remanded As to the claim of service connection for hypertension, the Board finds that another Remand is required because the post-Remand medical opinions obtained in October 2020 are not adequate. The Board has reached this conclusion because the examiner did not discuss whether the Veteran's TBI or PTSD caused or contributed to the Veteran's obesity which then lead to hypertension. See ElAmin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (holding that, when multiple theories of entitlement are at issue, the Board must ensure that the medical opinions of record directly address all theories reasonably raised by the record). Therefore, the Board finds that a remand to provide the Veteran with new VA examinations to obtain the required medical opinion is required. See 38U.S.C.§5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998). In providing the opinion and again adjudicating the claim, it should be noted that on January 6, 2017, the General Counsel issued a precedential opinion which held that obesity could be an "intermediate step" between a service-connected disability and a current disability and thus satisfy the causal link between the two. VAOGCPREC 1-2017. In such cases where the issue is raised, the adjudicator should resolve three issues: (1) whether the service-connected disability caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for the obesity caused by the service-connected disability. VAOGCPREC 1-2017. Additionally, when providing the opinion, it should be noted that in Ward v. Wilkie, 31 Vet. App. 233 (2019) the United States Court of Appeals for Veterans Claims (Court) provided a new definition of aggravation which now includes a temporary worsening of a disability. While the appeal is in remand status, any outstanding VA and private treatment records should be obtained and associated with the record on appeal. See 38U.S.C.§5103A(b). This issue is REMANDED for the following actions: 1. Associate with the claims file any outstanding VA medical records. 2. In order to comply with the earlier remand, obtain an addendum medical opinion to determine the nature and etiology of the Veteran's hypertension. The claims file should be made available and reviewed by the examiner. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. Following consideration of the evidence of record (both lay and medical), the examiner is asked to address the following: a. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that hypertension is due to a disease or injury while on active duty b. Provide an opinion as to whether hypertension manifested in the first post-service year. c. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by his service-connected PTSD and/or TBI to include due to any weight gain caused by these service-connected disabilities include due to any medical he takes to treat these service-connected disabilities. d. Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was aggravated by his service-connected PTSD and/or TBI to include due to any weight gain caused by these service-connected disabilities include due to any medical he takes to treat these service-connected disabilities. In providing answers to the above question the examiner should consider and discuss the service treatment records. In providing answers to the above question the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In providing the aggravation opinion the examiner should specifically consider and discuss the Court in Ward, supra, new definition of aggravation which now includes temporary worsening of a disability. In providing answers to all the above questions the examiner should consider and discuss the Veteran's competent lay claims regarding observable symptomatology. In providing answers to all the above questions the examiner is also advised that the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. In answering all the questions please articulate the reasoning underpinning your conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support your opinion, and (2) explain how that evidence justifies your opinion. If the examiner cannot respond to an inquiry without resort to speculation as to any of the above claims he or she should so state, and must further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, Associate 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.