Citation Nr: A25047653 Decision Date: 05/29/25 Archive Date: 05/29/25 DOCKET NO. 240708-458555 DATE: May 29, 2025 REMANDED Entitlement to a separate evaluation for tumor of the thoracic spine. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from April 1975 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2024 VA Form 10182, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the March 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. However, because the Board is remanding the claim of entitlement to a separate rating for tumor of the thoracic spine, any evidence the Board could not consider will be considered by the AOJ in the adjudication of this claim. 38 C.F.R. § 3.103(c)(2)(ii). Entitlement to a separate rating for tumor of the thoracic spine. The Veteran asserts entitlement to service connection for neoplasm of uncertain behavior of the thoracic spine. See July 2024 VA Form 10182. Upon a review of the record, the Board finds that a remand is necessary to correct a pre-decisional duty to assist error and obtain an addendum opinion to determine whether a separate rating for tumor of the thoracic spine is warranted. As an initial matter, procedurally, in November 2023, the Veteran submitted a VA Form 21-526EZ seeking service connection for cord lesion/tumor and edema with spondylosis of the thoracic spine. A March 2024 rating decision denied service connection for neoplasm of uncertain behavior of the thoracic spine. However, the March 2024 rating decision also incorporated the diagnosis into the Veteran's already service-connected back disability. More specifically, the March 2024 rating decision granted an increased evaluation of 20 percent for intervertebral disc syndrome, degenerative arthritis, neoplasm of uncertain behavior of spinal cord - thoracic (previously rating as degenerative arthritis, lumbosacral spine). The Veteran subsequently filed a July 2024 VA Form 10182 seeking service connection for neoplasm of uncertain behavior of the thoracic spine. The Board must liberally construe VA Form 10182 submissions to determine whether they raise issues on appeal. 38 C.F.R. § 20.202. Currently, the Veteran is service connected for degenerative disc disease and intervertebral disc syndrome (IVDS) degenerative arthritis of the lumbar spine tumor of the thoracic spine with a 20 percent rating under Diagnostic Code 5243. See December 2024 Codesheet. However, according to the July 2024 VA Form 10182, the Veteran seeks service connection for tumor of the thoracic spine. As such diagnosis has been incorporated into the Veteran's service-connected back disability, the Board liberally construes the VA Form 10182 to raise the issue of entitlement to a separate rating for the Veteran's tumor of the thoracic spine. Turning to the medical evidence of record, the December 2023 VA examination for back conditions shows that the VA examiner found that "neoplasm of uncertain behavior of spinal cord - thoracic" was a new and separate diagnosis. Of note, pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). While the December 2023 VA examiner noted that the tumor of the thoracic spine was a new and separate diagnosis, the VA examiner did not explain whether the manifestations of such condition were new and separate from the Veteran's service-connected back disability. In order to properly evaluate the Veteran's back conditions and their respective symptoms, an addendum opinion is needed to determine whether the symptomatology of the Veteran's thoracic spine tumor is separate and distinct from his other back-related diagnoses. Therefore, a remand is necessary to obtain an addendum opinion from the December 2023 VA examiner or an appropriate clinician. Based upon the foregoing, the Board finds that a remand is necessary to correct a pre-decisional duty to assist error and obtain an addendum opinion to determine whether a separate rating for tumor of the thoracic spine is warranted. The matters are REMANDED for the following action: Obtain an addendum opinion from the December 2024 VA examiner, or an appropriate VA clinician if such examiner is unavailable, to ascertain the severity of the Veteran's back disability (to include degenerative arthritis and IVDS) symptoms and the severity of the tumor of the thoracic spine. Access to the claims file, to include a copy of this REMAND, must be made available to the examiner. Following a review of the pertinent evidence of record, to include treatment records and the Veteran's lay statements, the examiner must opine as to the following: (a) The examiner should list and evaluate the severity of each back diagnosis (to include degenerative arthritis and IVDS), distinguishing them from the tumor of the thoracic spine. (b) The examiner should then list and evaluate the severity of all symptoms related to the tumor of the thoracic spine. The examiner should provide rationale for each opinion. Additionally, if the examiner is unable to separate the manifestations of each condition, the examiner must provide a rationale as to why. John R. Doolittle, II Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brostowski, Leyna 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.