Citation Nr: 21062226 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 08-25 988 DATE: October 6, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to November 6, 2020, and in excess of 50 percent as of November 6, 2020, for migraine headaches is denied. Entitlement to a rating in excess of 0 percent prior to February 16, 2021, and in excess of 30 percent as of February 16, 2021, for bilateral hearing loss is denied. REMANDED Entitlement to service connection for a tremor disability is remanded. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for splenectomy residuals is remanded. FINDINGS OF FACT 1. Prior to November 6, 2020, the Veteran did not experience migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 2. As of November 6, 2020, the Veteran's service-connected migraine headaches are assigned a 50 percent rating, which is the maximum rating authorized for a migraine headaches under Diagnostic Code 8100. 3. Prior to February 16, 2021, the Veteran's bilateral hearing loss was shown to be manifested by no worse than right ear Level III auditory acuity, and left ear Level II auditory acuity, with difficulty understanding speech. 4. As of February 16, 2021, the Veteran's bilateral hearing loss was shown to be manifested by no worse than right ear Level VI auditory acuity, and left ear Level IV auditory acuity, with difficulty understanding speech. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent prior to November 6, 2020; and in excess of 50 percent as of November 6, 2020, for migraine headaches have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.121, 4.122, 4.124a, Diagnostic Code 8100. 2. The criteria for entitlement to a rating in excess of 0 percent prior to February 16, 2021, and in excess of 30 percent as of February 16, 2021, for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.3, 4.85, 4.86(a), Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to January 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2007, October 2014, and April 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. In April 2015, July 2017, and August 2020, the Board remanded these claims to the Agency of Original Jurisdiction for additional action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). During the course of this appeal, an April 2021 rating decision established entitlement to individual unemployability (TDIU) effective November 6, 2020. Subsequently, a July 2021 rating decision established entitlement to an earlier effective date of February 26, 2019, for TDIU. February 26, 2019 is the date the Veteran first met the schedular criteria to be considering for the assignment of TDIU. Therefore, the claim for entitlement to TDIU, previously the subject of the appeal, has been resolved in the Veteran's favor, and there is no longer a case in controversy for appellate consideration as to that claim. Increased Rating 1. Entitlement to a rating in excess of 30 percent for migraine headaches prior to November 6, 2020, and in excess of 50 percent as of November 6, 2020. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's migraine headache disability has been rated pursuant to Diagnostic Code 8100 which provides ratings for migraine headaches. That Diagnostic Code provides a 10 percent rating for characteristic prostrating attacks occurring an average of once every two months over the several months. A 30 percent rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. A maximum 50 percent rating is warranted for very frequent completely prostrating attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The Veteran contends that he is entitled to an increased rating for a service-connected migraine headaches disability, currently rated 30 percent prior to November 6, 2020, and 50 percent as of November 6, 2020. The current claim on appeal for an increased rating for migraine headaches was received by VA on November 3, 2006. At a March 2007 VA examination, the Veteran complained of severe throbbing headaches that caused nausea and vomiting, and light sensitivity. The headaches occurred about once a month. The headaches occasionally caused an inability to work and decreased productivity but the Veteran. At a January 2011 VA examination, the Veteran complained of 10/10 throbbing holocephalic pain, associated with photo and phonophobia, nausea, and vomiting in the past. The headaches were worse with activity and improved with rest. These headaches occurred about three to four times a month, lasting about nine hours in duration. At a May 2016 VA headache examination, the Veteran stated that he had migraines approximately three to four times a month, relieved by rest. The Veteran was not found to have characteristic prostrating attacks of migraine or non-migraine headache pain. The Veteran was noted as having decreased work efficiency during headaches. At a November 2017 VA examination, the Veteran stated that he had no change in the headache condition since the last visit. The Veteran reported headaches about two times a month, triggered by activity. The Veteran was found to have characteristic prostrating attacks of migraine headache pain once a month that was not productive of severe economic inadaptability. The Board notes that the Veteran was provided VA headache and TBI examinations in April 2019. However, that examinations were found to be inadequate by the Board in a previous decision and will not be considered in adjudication of this claim. Neither examination supported the claim. At a November 2020 VA headache examination, the Veteran was found to have very prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. In support of the claim, the Veteran has submitted numerous statements, to include hearing testimony, detailing the effects of the service-connected disability on his life and alleged that the 30 percent rating did not accurately compensate the severity of the migraine headaches. The Board finds that, prior to November 6, 2020, the service-connected migraine headaches did not warrant a rating in excess of 30 percent. The Board finds that the symptoms the Veteran experienced do not more nearly approximate those described under the criteria for a 50 percent rating. While the evidence shows that the Veteran had headaches occurring three to four times a month, the weight of the evidence does not show that the frequent headaches were productive of severe economic inadaptability. Prior to November 6, 2020, no examiner found the Veteran to have very frequent prostrating and prolonged attacks of migraine pain productive of severe economic inadaptability. All indications are that the Veteran experienced migraine headaches three to four times a month, but he was able to manage them with rest, as he continued to work. Any interference with employment was shown to be less than severe economic inadaptability. Therefore, the Board finds that a rating in excess of 30 percent is not warranted for migraine headaches prior to November 6, 2020. Effective November 6, 2020, the Veteran is assigned a 50 percent rating for the service-connected migraine headache disability pursuant to Diagnostic Code 8100. A 50 percent rating is the maximum schedular rating assignable under Diagnostic Code 8100, thus no higher rating can be assigned. The evidence does not show anything out of the ordinary or that the headaches result in frequent hospitalization or marked interference with employment such that consideration of referral of the assignment of an extraschedular rating is warranted. The Board is appreciative of the Veteran's faithful and honorable service. However, the Board finds that the Veteran's disability picture more nearly approximates a 30 percent rating for migraine headaches, and not higher, prior to November 6, 2020 pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100. Effective November 6, 2020, the Veteran is in receipt of the maximum assignable schedular rating for the disability. Therefore, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings. As the Board finds that the preponderance of the evidence is against the assignment of any higher ratings, the claim for any higher ratings must be and is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a rating in excess of 0 percent prior to February 16, 2021, and in excess of 30 percent as of February 16, 2021, for bilateral hearing loss The current claim for an increased rating for bilateral hearing loss stems from the initial grant of service connection for hearing loss disability, effective November 3, 2006. The Veteran's bilateral hearing loss disability is currently rated 0 percent prior to February 16, 2021, and 30 percent as of February 16, 2021. Hearing loss disability is rated under Diagnostic Code 6100, which sets out the criteria for rating hearing impairment using puretone threshold averages and speech discrimination scores. Numeric designations are assigned based upon a mechanical use of tables. 38 C.F.R. § 4.85; Acevedo-Escobar v. West, 12 Vet. App. 9 (1998); Lendenmann v. Principi, 3 Vet. App. 345 (1992). Ratings for defective hearing range from 0 percent to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Diagnostic Code 6100. Audiometric results are matched on Table VI to find the numeric designation. Then, the designations are matched with Table VII to find the percentage rating to be assigned for the hearing impairment. To rate the degree of disability for service-connected hearing loss, the Rating Schedule establishes 11 auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. 38 C.F.R. § 4.85. When the puretone threshold at each of the four specified frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). At a February 2007 VA examination, the Veteran's pure tone thresholds, in decibels, were: February 2007 HERTZ 1000 2000 3000 4000 Avg RIGHT 40 60 60 75 59 LEFT 40 60 60 75 59 The Veteran's speech recognition scores were 92 percent in the right ear and 92 percent in the left ear. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. An April 2011 audiology note describes the Veteran as having mild sloping to severe right ear hearing loss between 750 and 8000 Hertz and mild sloping to severe left ear hearing loss between 500 and 8000 Hertz. Exact Puretone thresholds in decibels were not determined and word recognition testing was not performed during the examination. At a July 2016 VA examination, the Veteran complained of bilateral hearing loss. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: July 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 65 65 70 61 88 LEFT 45 65 65 70 61 92 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. At a November 2017 VA examination, the Veteran complained of difficulty hearing people speak. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: November 2017 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 45 65 65 70 61 84 LEFT 45 60 65 70 60 96 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. At a February 2021 VA examination, the Veteran complained of difficulty hearing people speak and hearing high-pitched sounds. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were: February 2021 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 65 70 80 68 68 LEFT 60 70 75 80 71 76 Applying the results to Table VI, the findings yield a numeric designation of Level VI in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level VI for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86(a) was shown in both ears. Applying the results to Table VIA yields Level V in the right ear and level VI in the left ear. Entering the resulting bilateral numeric designation of Level V for the right ear and Level VI for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent rating under Diagnostic Code 6100. Here, both table VIA and VI yields the same result. Based on the evidence, the Board finds a rating in excess of 0 percent prior to February 16, 2021, and in excess of 30 percent as of February 16, 2021, for bilateral hearing loss is not warranted. The Board finds that the preponderance of the competent evidence of record is against the assignment of any increased rating for bilateral hearing loss. The Veteran's disability must be rated on the objective findings demonstrated during audiology examination. Hearing loss involves a mechanical application of the Rating Schedule to numeric designations assigned to official auditory results. The fact that hearing acuity is less than optimal does not, by itself, establish entitlement to a higher rating. A higher rating can only be awarded when loss of hearing has reached a specified measurable level. The level of disability needed for an increase in the assigned ratings has not been demonstrated at any point during the appeal. The Board expressly acknowledges consideration of the lay evidence of record when adjudicating this claim, including the Veteran's statements regarding difficulty understanding speech. The Veteran was competent to report difficulty with his hearing. However, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran described, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. Rossy v. Shulkin, 29 Vet. App. 142 (2017). Accordingly, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 0 percent prior to February 16, 2021, and in excess of 30 percent as of February 16, 2021, for bilateral hearing loss. Therefore, the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a tremor disability. The Veteran asserts that service connection for a tremor disability is warranted as the claimed disability was incurred secondary to service-connected traumatic brain injury residuals or, in the alternative, the claimed disability was aggravated by medications prescribed for the service-connected disabilities. At a February 2021 VA examination, the examiner, a psychiatrist, stated that the claimed tremor disability was less likely than not (less than 50 percent probability) proximately due to or the result of the service connection disability. The examiner stated that she found no valid diagnosis of a neurocognitive disorder. The examiner explained that although the December 2020 examiner took the Veteran's report at face value and diagnosed a mild neurocognitive disorder, which the February 2021 examiner found to be an erroneous diagnosis because it was not supported by 2014 testing, the same examiner indicated that the only symptom during the December 2020 examination was suspiciousness. The December 2020 examiner did not mark memory problems. That in itself made the diagnosis of a neurocognitive disorder highly questionable. The examiner further explained that the service medical records and timeline of records did not support any neurocognitive residuals from the injury in 1963. It appeared that VA clinical providers and subsequent VA examiners have taken the Veteran's verbal report at face value regarding the injury from 1963, despite the lack of supporting service medical record evidence for any chronic neurocognitive residuals. The February 2021 examiner explained that this was not recommended, especially give the age of the Veteran and his co-morbid conditions which may be contributing to a more recent onset of subjective memory complaints. The February 2021 examiner also noted that the most comprehensive examination to date was a September 2014 VA TBI examination which found no TBI, no facets, no residuals, and no impairment. The September 2014 examiner stated that it was to be noted that the Veteran was a painter for decades and was therefore exposed to environmental toxins that can cause tremors. The Veteran also had a renal transplant and was currently on medications that were known to cause tremors. The examiner opined that it was more likely than not that the tremors the experienced were more likely than not due to exposure to occupational hazards and current medications. The Board finds the February 2021 VA medical opinion to be incomplete, as the examiner did not provide an adequate rationale to support the opinion. The Board notes that in its August 2020 Remand, the Board found the September 2014 VA TBI examination to be of limited probative value because of the conflicting and erroneous findings, to include the existence of the service-connected traumatic brain injury residuals and other cited deficiencies. However, the February 2021 VA examiner, in large part, based the opinion on the findings of the September 2014 VA examination. Because of the reliance of the February 2021 VA examiner on the September 2014 VA examination which has already been found to be inadequate, the Board now finds the February 2021 VA examination to also be inadequate. The Veteran underwent VA central nervous system examination in February 2021. After in-person examination and review of the claims file, the examiner stated that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury, event, or illness in service. The examiner explained that the Veteran's report that tremors began at the time of the head injury was not corroborated by the available medical record. The examiner stated that had the Veteran had a tremor after the injury, it would have been noted at the time the his injury or at separation. There was no mention of tremor by the Veteran or medical personnel in either instance. No tremor was mentioned between 1987 and 1990. In fact, the first time the tremor appeared in the available records was in 2011. The Veteran had never had a proper neurology work up for the tremor. The Veteran was a cadaveric transplant recipient for a kidney done in 2005. He took Sirolimus as part of the antirejection regimen and there were multiple references in the record indicating that medication is associated with tremor. The examiner stated that he was not qualified to discuss TBI or TBI residuals. However a search of "Up To Date" produced no evidence that a tremor coming on late in life was associated with remote TBI. Furthermore, because of the lack of progression of the intention tremor, no argument for permanent aggravation can be made. The Board finds February 2021 VA central nervous system examination and report to be inadequate. The examiner acknowledged that he was not qualified to discuss TBI or TBI residuals. Because the Veteran is asserting service connection as secondary to a TBI, the Board finds the opinion to be of little probative value because the examiner stated in the report that he was not qualified to opine on the matter at hand. The Board finds that there has not been substantial compliance with the August 2020 remand instructions. The Veteran has not been provided an adequate neurology examination in conjunction with the service connection claim as requested. That is a pre-decisional duty to assist error. Accordingly, because the Veteran's tremor disability may have been caused by service, the Board finds that a VA opinion to determine any relationship between the Veteran's claimed disability and service should be scheduled. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 2. Entitlement to compensation under the provisions of 38 U.S.C. § 1151 for splenectomy residuals is remanded. The Board finds that additional development is required before the claim on appeal is decided. The appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that pertinent evidence will first be reviewed at the Agency of Original Jurisdiction (AOJ) so as not to deprive the claimant of an opportunity to prevail with a claim at that level. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. 38 C.F.R. § 19.31(b)(1). The record shows that VA-generated evidence, to include a September 2021 VA examination report, has been added to the claims file since the claim was last adjudicated in a July 2021 supplemental statement of the case. Since that time, a supplemental statement of the case was not issued with consideration of the September 2021 VA examination report. While 38 U.S.C. § 7105(e) provides an automatic waiver of initial AOJ review if a Veteran submits evidence to the AOJ or the Board with, or after submission of, a substantive appeal, this provision is only applicable to cases where the substantive appeal was filed on or after February 2, 2013, but does not apply to VA-generated evidence, such as VA examination reports or VA treatment records as those are not submitted by the Veteran. 38 U.S.C. § 7105(e). The Veteran has not submitted a waiver of AOJ initial consideration of that evidence. Therefore, remand is necessary in order to allow the AOJ to consider the new evidence in the first instance. 38 C.F.R. § 19.31(b)(1). The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records beginning July 2021. For private treatment records, make at least two attempts to obtain records from any identified sources. If any records are unavailable, inform the Veteran and allow him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A (b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to diagnose and determine the nature and etiology of any tremor disability with a medical doctor examiner qualified to examine TBI and TBI residuals who has not previously examined the Veteran in conjunction with this claim. The examiner must review the claims file, including this Remand and the August 2020 Board Remand, in their entirety and should note that review in the report. The examiner should address the Veteran's lay statements, to include hearing testimony, regarding the claimed tremor disability and its etiology. The examiner is advised that the Veteran is competent to report symptoms and history and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner is asked to diagnose any tremor disabilities that occurred during the pendency of this appeal and to reconcile that diagnosis with the other opinions of record. If a tremor disability is diagnosed, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that any diagnosed tremor disability is etiologically related to active service or any event, disease, or injury during service, including whether any tremor disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include medications, or (4) was aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities, to include medications. The examiner is asked to specifically address whether the claimed tremor disability is a symptom of or secondary to a service- connected traumatic brain injury. If another etiology for the tremor disability is more likely, the examiner should so state, and should explain why that etiology is more likely. A clearly stated rationale for each opinion offered must be provided and must not be based on the lack of an in-service record of the claimed disability. 3. Following receipt of outstanding records, readjudicate the claims based on the entirety of the evidence, to specifically include all evidence associated with the record since the issuance of the July 2021 supplemental statement of the case. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. The, return the case to the Board. . Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.