Citation Nr: 21001245 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 20-12 749 DATE: January 7, 2021 ORDER The Board of Veterans’ Appeals (Board) June 25, 2020, decision is vacated in its entirety. The claim of whether new and material evidence has been received in order to reopen a claim seeking entitlement to service connection for attention deficit hyperactivity disorder (ADHD); and if so, whether service connection is warranted has been withdrawn. The claim of entitlement to a rating higher than 50 percent for migraine headaches has been withdrawn. The claim of entitlement to an effective date earlier than April 9, 2017 for the assignment of a 50 percent rating for migraine headaches has been withdrawn. A 40 percent rating for traumatic brain injury (TBI) residuals, is restored, effective May 10, 2018. A 70 percent rating for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. Due process requires that the Board vacate its June 25, 2020, decision in its entirety, as the Veteran was denied his right to representation through action or inaction by BVA personnel. 2. In October 2020 correspondence, the Veteran and his attorney withdrew the issues pertaining to ADHD, increased rating and earlier effective date for migraine headaches. 3. The July 2018 rating decision to reduce the disability evaluation assigned to the Veteran’s service connected TBI residuals from 40 to 10 percent as of May 10, 2018, was not reasonably supported by the evidence contained in the record at the time of the reduction. 4. For the entire appeal period, resolving all doubt in the Veteran’s favor, his PTSD was manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The June 25, 2020, Board decision is vacated in its entirety. 38 C.F.R. § 20.904. 2. The criteria for withdrawal of the claims for service connection for ADHD as well as increased rating and earlier effective date for migraine headaches by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The reduction of the disability evaluation for the Veteran’s service connected TBI residuals, from 40 percent to 10 percent was not proper, and the 40 percent evaluation is restored from May 10, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344, 4.3, 4.7, 4.118, Diagnostic Code (Code) 8045. 4. The criteria for A 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1996 to September 1997; from February 2001 to October 2001; from December 2004 to June 2006; and from October 2010 to December 2011. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Vacatur of the June 2020 Board Decision The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. Here, the Board issued a decision which denied various issues. In October 2020, the Veteran and his attorney submitted a motion to vacate the June 2020 decision. Indeed, the attorney indicated that the Veteran was denied his right to representation through action or inaction by BVA personnel. Indeed, the Veteran’s attorney was not provided notice of the 90-day letter dated April 22, 2020. The attorney indicated that the 90-day letter was mailed to the attorney’s old office address. The attorney moved in May 2017. The attorney started representing the Veteran in August 2018 and provided a VA Form 21-22a with the current office address. Upon review of the record, the Board finds that the April 2020 letter was returned as undeliverable. Accordingly, the Board finds that a vacatur of its June 2020 decision is appropriate so as to avoid any violation of the Veteran’s due process rights. Thus, without further comment, the Board vacates its June 2020 decision in its entirety. The merits of the associated appeal will be addressed below. 1. Whether new and material evidence has been received in order to reopen a claim seeking entitlement to service connection for ADHD; and if so whether service connection is warranted 2. Entitlement to a rating higher than 50 percent for migraine headaches 3. Entitlement to an effective date earlier than April 9, 2017 for the assignment of a 50 percent rating for migraine headaches Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, a substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In October 2020 correspondence, the Veteran through his attorney, withdrew his appeals concerning the issue of entitlement to service connection for ADHD; as well as an increased rating and earlier effective date for migraine headaches. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Increased Rating Disability evaluations are determined by comparing a veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 4. The reduction of the rating for TBI residuals from 40 percent to 10 percent Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 5 Vet. App. 413 (1993) (the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Further, rating reduction cases must be based upon a review of the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 5 Vet. App. at 420-421. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). An August 2016 rating decision granted service connection for TBI residuals. An initial 40 percent rating was assigned from December 27, 2014. In April 2018, the Veteran submitted a claim for an increased rating. A July 2018 rating decision decreased the rating from 40 percent to 10 percent effective May 10, 2018 based on the most recent VA examination report findings. The Veteran contends that such reduction was improper. For the reasons discussed below, the Board finds that the rating reduction was improper and that restoration of the 40 percent rating for TBI residuals is warranted. Therefore, a discussion of whether VA complied with the procedural requirements set forth in 38 C.F.R. § 3.105(e) is unnecessary. The criteria for evaluating TBI are set forth in Code 8045. That Code provides rating criteria for three main areas of dysfunction that may result from TBI and have profound effects on functioning: cognitive, emotional/behavioral, and physical. Each of these areas of dysfunction may require evaluation. See 38 C.F.R. § 4.124a, Code 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 traumatic brain injury or may be associated with cognitive impairment or other areas of dysfunction. Evaluate subjective symptoms that are residuals of a traumatic brain injury, 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 traumatic brain injury. For residuals not listed here that are reported on an examination, evaluate under the most appropriate diagnostic code. Evaluate each condition separately, as long as the same signs and symptoms are not used to support more than one evaluation and combine under 38 C.F.R. § 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. Ratings for cognitive impairment and other residuals of traumatic brain injury not otherwise classified are based on a table of 10 important facets related to cognitive impairment and subjective symptoms. As is relevant here, if the highest level of evaluation for any facet is “2,” then the appropriate disability rating is 40 percent. A 10 percent evaluation is warranted when the highest level of evaluation for any facet is “1.” Finally, a noncompensable (0 percent) rating is assigned when the level of the highest facet is “0.” 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. 38 C.F.R. § 4.124a, Code 8045 Note (1). 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. 38 C.F.R. § 4.124a, Code 8045 Note (2). Instrumental activities of daily living refer 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. 38 C.F.R. § 4.124a, Code 8045 Note (3). The terms “mild,” “moderate,” and “severe” traumatic brain injury, which may appear in medical records, refer to a classification of traumatic brain injury 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 Code 8045. 38 C.F.R. § 4.124a, Code 8045 Note (4). The table titled “Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified” provides the following evaluations: Impairment of memory, attention, concentration, executive functions are assigned numerical designations as follows: (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; and (Total) Objective evidence on testing of severe impairment of memory, attention, concentration, or executive functions resulting in severe functional impairment. Impairment of judgment is assigned numerical designations as follows: (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; and (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. Impairment of social interaction is assigned numerical designations as follows: (0) Social interaction is routinely appropriate; (1) Social interaction is occasionally inappropriate; (2) Social interaction is frequently inappropriate; and (3) Social interaction is inappropriate most or all of the time. Impairment of orientation is assigned numerical designations as follows: (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 (person, time, place, situation) of orientation or often disoriented to one aspect of orientation; (3) Often disoriented to two or more of the four aspects (person, time, place, situation) of orientation; and (Total) Consistently disoriented to two or more of the four aspects (person, time, place, situation) of orientation. Impairment of motor activity (with intact motor and sensory system) is assigned numerical designations as follows: (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; and (Total) Motor activity severely decreased due to apraxia. Impairment of visual spatial orientation is assigned numerical designations as follows: (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 GPS (global positioning system); (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; and (Total) Severely impaired 0 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. Subjective symptoms are assigned numerical designations as follows: (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; and (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. Neurobehavioral effects are assigned numerical designations as follows: (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; and (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. Impairment of communication is assigned numerical designations as follows: (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; and (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. Impairment of consciousness is assigned numerical designations as follows: Total - Persistently altered state of consciousness, such as vegetative state, minimally responsive state, coma. See 38 C.F.R. § 4.124a, Code 8045. As noted, the Veteran’s grant of service connection of a 40 percent rating for TBI residuals was based upon a March 2016 VA examination. The Veteran was initially assigned a level “2” for Memory, attention, concentration, indicating that the March 2016 examiner found evidence such as objective evidence of testing of mild impairment of memory, attention, concentration or executive functions. The examiner assigned levels of 0 for the judgement facet, the social interaction facet, the orientation facet, the motor activity facet, the visual spatial orientation facet, the subjective symptoms facet, the neurobehavioral effects facet and the communication facet. The Veteran was found to have problems with his memory based upon the March 2016 and March 2017 examinations. As noted, in April 2018, the Veteran submitted a claim for an increased rating. A July 2018 rating decision decreased the rating from 40 percent to 10 percent effective May 10, 2018 based on the most recent VA examination report findings The RO based this rating reduction on a May 2018 VA examination finding that the Veteran had mild memory loss. In October 2020, the Veteran’s attorney submitted evidence that included a September 2020 private telehealth examination report from Dr. M. Dr. M. documented that he had reviewed the Veteran’s file to include the most recent May 2018 VA examination report. Dr. M. observed that Dr. D., in the May 2018 VA examination findings, noted that impairment in the Veteran’s attention was “fragile”. He also indicated that the Veteran’s memory and attention had not changed much during the appeal period. The Veteran also submitted a September 2020 statement that his memory has not improved. He indicated that he changed jobs and took a decrease in pay because he could not handle the workload of his old job. This was partly due to the short-term memory loss and focus issues. Upon consideration of the foregoing evidence, and a comparison of the demonstrated symptomatology at the time of the assignment of the Veteran’s pre-reduction 40 percent disability rating versus the demonstrated symptomatology demonstrated since that time, the Board concludes that the evidence does not show actual improvement in the Veteran’s condition which justifies the effectuated reduction of the disability rating from 40 percent to 10 percent. In this regard, the Board notes that the May 2018 VA examination findings does not appear to change the findings from the earlier examination. At the very least, it is unclear, and the Board thus finds that the Veteran’s memory did not sustain sufficient improvement to warrant the level of “1” such that reduction of the 40 percent rating was warranted. The Board therefore finds that the reduction in rating from 40 percent to 10 percent for TBI residuals was improper, and a restoration of the prior 40 percent rating (and no higher) as of May 10, 2018 is warranted. See 38 C.F.R. §§ 4.2, 4.10; Brown, 5 Vet. App. at 421. 5. A 70 percent rating for PTSD The Veteran contends that his PTSD is more severe than contemplated by his currently assigned 50 percent rating. His PTSD is rated under Code 9411. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. 38 C.F.R. § 4.130. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. In determining whether a 70 percent rating is warranted, the focus is on whether there are deficiencies in most of the areas of work, school, family relations, judgement, thinking and mood. Bowling v. Principi, 15 Vet. App. 1 (2001). Although a veteran’s symptomatology is the primary consideration in assessing veteran’s disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for the 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); 38 C.F.R. § 4.130. The Veteran’s PTSD symptoms, for the entire appeal period, most closely approximate those warranting a 70 percent rating. In reaching this conclusion, the Board has considered both the medical and lay statements describing the Veteran’s symptoms. The competent and credible evidence, that includes VA and private examination reports and treatment records; as well as his September 2020 statement, establishes that the Veteran’s PTSD was manifested by symptoms such as irritability; difficulty controlling his anger; intermittent suicidal ideation; insomnia; nightmares; and avoidance behaviors, including social withdrawal, feelings of detachment, and loss of interest in activities. He reported experiencing a depressed mood; intrusive memories related to his military service, including flashbacks; hypervigilance; and an exaggerated startle response. Although he was close to his friends and family, he indicated that his irritability and anger occasionally resulted in conflicts in those relationships. In the September 2020 statement, the Veteran indicated that his PTSD symptoms were consistent throughout his appeal. Collectively, these symptoms are of the type, extent, severity, and/or frequency indicative of occupational and social impairment in most areas of the Veteran’s life, including work, social relations, judgment, thinking, or mood. As such, the Board finds that the preponderance of the evidence supports the award of a 70 percent rating for the entire appeal period. The Board finds, however, that the Veteran’s PTSD symptoms do not reflect, and the Veteran does not report, total occupational and total social impairment at any point during the appeal. In sum, a 70 percent rating, but no higher, is warranted for the entire period on appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine is remanded. The Veteran asserts that his lumbar spine disability is a result of the blast injury he sustained while on active duty. He was examined in July 2018 and the VA examiner indicated that the Veteran’s the lumbar disability is not attributed to an undiagnosed illness or medically unexplained chronic symptom illness of unknown etiology; however, there was no adequate opinion regarding whether the lumbar spine disability is due to an in-service injury, event, or illness. As such, another VA examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the lumbar spine disability. The electronic file and a copy of this remand must be reviewed in conjunction with the examination. Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) the Veteran’s current lumbar spine disability is etiologically related to or caused by an event, injury, or disease incurred in service. (Continued on the next page)   The examiner is asked to provide a detailed rationale/reasoning for any opinions rendered. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.