Citation Nr: 21068655 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-42 588 DATE: November 12, 2021 ORDER New and material evidence has been received sufficient to reopen a previously denied claim for service connection for lumbar strain, and the appeal is granted to this extent only. Entitlement to a rating of 70 percent for posttraumatic stress disorder (PTSD) prior to November 30, 2016 is granted. Entitlement to a rating in excess of 70 percent for PTSD after November 30, 2016 is withdrawn. REMANDED Entitlement to service connection for lumbar strain is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The claim of service connection for a lumbar strain was denied in a final March 2015 rating decision; although the Veteran filed timely a Notice of Disagreement (NOD) in May 2015, new and material evidence was not received within sixty days from the mailing of the November 2015 statement of the case (SOC). The Veteran has since submitted new and material evidence with respect to the claim of service connection for a lumbar strain. 2. Prior to November 30, 2016, the Veteran's PTSD has been productive of occupational and social impairment in most areas, but has not been manifested by total social impairment. 3. On March 9, 2021, prior to the promulgation of a decision in the appeal, the Board received a notification from the Veteran's counsel that a withdrawal of the issue of entitlement to a rating in excess of 70 percent for PTSD after November 30, 2016 is requested. CONCLUSIONS OF LAW 1. The March 2015 rating decision that denied service connection for a lumbar strain became final; 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103; and new and material evidence has been received to reopen service connection for a lumbar strain. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. Prior to November 30, 2016, the criteria for entitlement to a 70 percent rating for PTSD have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for withdrawal of the issue of entitlement to a rating in excess of 70 percent for PTSD after November 30, 2016 by his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2004 to April 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2015 and January 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). LUMBAR STRAIN As to the procedural history of the Veteran's claim for service connection for lumbar strain, the Veteran initially submitted his claim in February 2015. The RO issued a rating decision denying service connection in March 2015, to which the Veteran responded with a NOD in May 2015, including a request for a hearing with a Decision Review Officer (DRO). The hearing was held in September 2015 and a summary of the hearing is associated with the record. Subsequently, the RO issued a November 2015 SOC continuing the denial of service connection for a lumbar strain. No additional evidence or a VA Form 9 was received by VA within sixty days after the notification of the SOC. The Veteran submitted a new claim for service connection for lumbar strain in January 2017. An April 2017 rating decision reopened the claim but continued the denial of the claim. The Veteran submitted a May 2017 NOD requesting a DRO hearing. An informal telephonic hearing was held in May 2019 and the summary of the hearing is associated with the record. A SOC was issued in March 2020 denying service connection for the Veteran's lumbar strain. The Veteran subsequently submitted a May 2020 Form 9, including a request for a hearing before the Board. A Board hearing was held in September 2020 and a transcript of the hearing is associated with the record. The matter is now presently before the Board for appellate review. PTSD As to the procedural history of the Veteran's claim for an increased rating for PTSD, the Veteran was initially denied an increased rating in a March 2014 rating decision. The Veteran submitted a June 2014 NOD to the rating decision. In December 2014, the RO issued a rating decision granting the Veteran a rating of 30 percent for PTSD effective April 15, 2013 and a SOC denying a rating in excess of 30 percent. The Veteran submitted a timely VA Form 9 seeking a rating in excess of 30 percent. Prior to a decision by the Board, in February 2015, the Veteran submitted a letter withdrawing his request for a rating in excess of 30 percent for PTSD. The Board accepted that request and dismissed the issue in a March 2015 decision. In May 2015, the Veteran submitted a new claim for a rating in excess of 30 percent for his PTSD. The RO issued an August 2015 rating decision continuing the 30 percent rating, to which the Veteran submitted a NOD in February 2016. A July 2016 SOC continued the increased rating denial, and the Veteran submitted a VA Form 9 with a request for a Board hearing in August 2016. A Board hearing was held in September 2019 and the Board remanded the case for further development in October 2020. In February 2021, the RO issued a rating decision granting the Veteran an increased rating for his PTSD to 70 percent effective November 30, 2016 and a supplemental statement of the case (SSOC) denying a rating in excess of 30 percent prior to November 30, 2016 or 70 percent thereafter. Prior to returning to the Board, the Board received correspondence from the Veteran's representative withdrawing the issue of entitlement to a rating in excess of 70 percent after November 30, 2016. As mentioned above, the Veteran testified at a hearing in September 2019. A transcript of the hearing is associated with the record. The hearing was not before the undersigned Veterans Law Judge (VLJ) but a different VLJ who is now no longer available. In March 2021, the Veteran and his representative were notified that the Veteran was entitled to another hearing before the Board, and if he did not respond within 30 days from the date of the letter, the Board would proceed with his appeal. The Veteran and/or his representative did not respond within 30 days to indicate that he wished to have an additional hearing. Therefore, the Board may proceed on the appeal. TDIU In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to service connection (TDIU) is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record. The evidence in the record shows the Veteran as receiving social security disability for anxiety disorders as of April 2007. The Board thus finds that the record has reasonably raised a claim for a TDIU per Rice; however, remand is required prior to adjudication of the claim for a TDIU. The Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the regional office addressed TDIU in the first instance. 1. New and material evidence has been received sufficient to reopen a previously denied claim for service connection for lumbar strain. Under 38 C.F.R. § 3.156 (c), except as otherwise provided, if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim. These records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, as long as the other requirements of paragraph (c) of this section are met; additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156 (c)(1). The Board acknowledges the Veteran submitted service personnel records in January 2017, but these were duplicative of prior records, and as such, 38 C.F.R. § 3.156 (c) is not applicable. The Board will proceed to address reopening through new and material evidence. In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board's jurisdiction to reach the underlying claims and to adjudicate the claims de novo. As mentioned above, the RO denied the Veteran service connection in a March 2015 rating decision. The Veteran submitted a timely NOD in May 2015. A November 2015 SOC continued the decision of the March 2015 rating decision. The rating decision became final after the Veteran failed to submit additional evidence or file a VA Form 9 within sixty days of notification of the decision. The Veteran subsequently filed a claim to reopen the issue in January 2017, and, in April 2017, the RO reopened the claim but continued the denial for service connection. Since the November 2015 SOC, the record contains new and material evidence. Included in this evidence is a May 2019 Board hearing transcript and June 2019 private medical opinion regarding nexus between the Veteran's lumbar strain and his service-connected knee disabilities. The evidence is new, as it was not previously submitted to agency decision makers, and it is material, as it goes to the unestablished fact of a nexus between the Veteran's disability and his service and/or service-connected disabilities. As such, the Board finds the evidence sufficient to reopen the previously-denied claim. 38 C.F.R. § 3.156. 2. Entitlement to a rating of 70 percent for PTSD prior to November 30, 2016. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he or she filed the claim for increase, the present level of the veteran's disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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. To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that his PTSD was more disabling than contemplated by his current 30 percent rating prior to November 30, 2016. This condition is rated under 38 C.F.R. § 4.124a, DC 9411. Under DC 9411, a 50 percent rating is warranted when the psychiatric disorder results in 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such an 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 total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. Turning to the evidence, the Veteran was afforded a VA examination for PTSD in October 2014. The Veteran reported a depressed mood with variable frequency, going two months without a bout of depression but then sometimes feeling depressed for a few weeks or a few months. The Veteran stated he did not have crying spells but generally felt numb. He often felt irritable and would sometimes engage in verbal acting out. His irritability tended to be more intense when he experienced particularly severe sleep disturbances. His sleep disturbances consisted of sleeping only a couple hours every night, having nightmares, and being restless during his sleep. His restlessness caused him to sleep in his guest bedroom because he tossed and turned and was easily woken. He would isolate himself and not do much socially. He had friends who would visit him at his home, but he would not go to their homes or out to movies or bars. One reason he did not go out was for fear how he may react if a stranger made an off remark to him. He denied appetite disturbances, weight changes, and suicidal ideation. He had anxiety, restlessness, and an inability to relax. He felt hypervigilant, feeling unsafe and defensive most of the time. This included in crowds and noisy situations. He reported panic symptoms with sudden onset that would last twenty to thirty seconds, leaving him exhausted at their conclusion. The Veteran said he had a good relationship with his wife and two-year-old son. He felt detached from others but did maintain some meaningful friendships. The examiner listed his symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. In February 2015, the Veteran underwent a private mental status examination. The examiner diagnosed the Veteran with PTSD. The Veteran presented as offhand, vague, and passive aggressive, while frequently giving incomplete information and laughing inappropriately when asked serious questions. The Veteran reported his wife was pregnant and his relationship with her and their three-year-old child was good. The Veteran reported having unwanted memories, distressing dreams, and dissociative flashbacks. He said he had panic-like symptoms eight to ten times a month. He avoided people and groups, which caused arguments with his wife when she wanted to go out. He said he felt a persistent sense of danger and hypervigilance, feeling the need to carry a knife with him wherever he went. He said he did not have hobbies or really enjoy anything. He said he spent his time playing videogames and reading comic books. He also reported feeling detached from others and having difficulty feeling positive emotions. He had mood swings with angry outbursts. He often felt irritable and would raise his voice but would not throw or hit things or push or hit people. He told the examiner he startled easily and struggled to concentrate. The examiner noted the Veteran's speech pattern tended to be coherent but digressive, tangential, and circumstantial, and would often interrupt questions before they were finished. While the Veteran denied obsessive rituals, the Veteran admitted to washing his hands about fifteen times a day to keep them clean. The Veteran denied current paranoid ideation but had in the past thought he was being poisoned. His memory was broadly intact although spotty and inexact for specifics. In May 2015, the Veteran submitted a private Disability Benefit Questionnaire (DBQ). It summarized his symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain effective relationships. June 2015 VA treatment records reported the Veteran as feeling depressed and having a positive PTSD screen. The screen showed the Veteran had difficulty not thinking about his traumatic experience, was on guard/watchful/easily startled, and felt numb or detached from others. July 2015 VA treatment records noted the Veteran as severely depressed, anxious, sad, with low energy and motivation, and sometimes feeling hopeless. He denied suicidal and homicidal ideation, and alcohol or drug problems. He reported nightmares, flashbacks, and sleeping disturbances. August 2015 VA treatment records documented the Veteran saying he isolated from family and others on September 11th to avoid discussion of the September 11th attack. He reported feelings of loss, guilt, apathy, decreased motivation, decreased engagement and pleasure from activities, feeling of isolation and disconnection from others, irritability, difficulty concentrating, memory concerns, hypervigilance, being easily startled, decreased sleep, intrusive thoughts and memories, and nightmares. He had episodes of intense nervousness and/or panic, especially in social or crowded situations. He indicated his anxiety was impacting his relationships. In November 2016, the Veteran participated in a VA examination. The Veteran was diagnosed with PTSD, major depressive disorder (MDD), and panic disorder. The Veteran described his relationship with his wife as ok but had apprehension when participating in his children's activities because he was uncomfortable with strangers and unfamiliar places. While he hadn't been employed since 2007, at his work, the Veteran said he didn't handle stress well, couldn't be around groups of people, and couldn't tolerate bad attitudes. The Veteran reported a quick temper, an inability to focus, a constant concern for his safety, including perpetually checking for danger. The examiner listed his symptoms as depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. In September 2019, the Veteran testified in a Board hearing. The Veteran reported he changed providers from VA to a private facility in 2018. He changed, in part, because his symptoms were constant crying, shaking, nightmares, poor appetite, inability to focus, and a feeling of wanting to walk out the door and disappear. The veteran stated he was admitted to a private mental health facility for three days but stayed a total of five days. At the time of the hearing, he said he struggled to control his anxiety and guilt, especially around groups of people. The majority of the Veteran's time was spent in his home and when he left the house, he was hypervigilant. He testified he last worked in 2007 and could not work because of his psychiatric condition. The Veteran explained he was recently divorced after being married for eight years, but maintained a good relationship with his children. To avoid people, the Veteran said he shopped for groceries at 3 AM. While he had social interactions with friends, they would only occur in his home. He would not visit them in their homes or at other social locations. He would not even visit his parents who were only 20 minutes away. The Veteran believed his condition had worsened since his last VA examination, saying he didn't believe he had anxiety in 2016 but now did. On review, prior to November 30, 2016, the Board finds the Veteran's PTSD has most nearly approximated occupational and social impairment with deficiencies in most areas. The evidence reflects the Veteran experienced obsessional rituals which interfere with routine activities. See February 2015 private examination (noting the Veteran admitting to compulsively washing his hands about fifteen times a day). The Veteran also presented intermittently illogical, obscure, or irrelevant speech. See February 2015 private examination (noting the Veteran's speech pattern tended to be coherent but digressive, tangential, and circumstantial, with frequent interruptions of question before they finished, and laughing inappropriately when asked serious questions). Evidence of difficulty in adapting to stressful circumstances is also present in the record. See August 2015 VA treatment records (noting the Veteran avoided his family near September 11th to avoid discussing the September 11th attack, as well as his anxiety with episodes of nervousness and panic when presented with social or crowded situations); June 2015 VA treatment record (noting the Veteran saying he always felt on guard, watchful, and easily startled); May 2015 private DBQ (noting the symptom of difficulty adapting to stressful circumstances); February 2015 private examination(noting the Veteran avoided the public, felt a persistent sense of danger where he did not trust people and carried a knife with him wherever he went, felt persistent anger, was continually irritable which led him to raise his voice, startled easily and reacted strongly when startled); October 2014 VA examination (noting irritability causing the Veteran to engage in some verbal acting out, self-isolation for fear of interacting with a stranger who makes an off-remark causing him to react, feeling unsafe and defensive most of the time, uncomfortability in crowded and noisy situations, inability to relax). Finally, the record shows the Veteran presented an inability to establish and maintain effective relationships. See August 2015 VA treatment records (noting the Veteran feeling isolated and disconnected towards others, avoidance of social situations, anxiety increasing difficulties in relationships); May 2015 private DBQ (noting the symptom of inability to establish and maintain effective relationships); February 2015 private examination (noting avoidance of social groups, persistent distrust of people, feeling of detachment from others, feeling of harming other people because of their "stupidity"); October 2014 VA examination (irritability causing him to engage in verbal acting out, self-isolation, refusal to visit friends in their homes or at any location other than his home, persistent feeling of danger and defensiveness, feelings of detachment from others). For the above reasons, the Board finds that the Veteran's PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas throughout the period on appeal, warranting a 70 percent rating prior to November 30, 2016. However, a rating in excess of 70 percent prior to November 30, 2016 is not warranted because the evidence does not reflect the Veteran's PTSD has caused total social impairment. During the period on appeal, the Veteran repeatedly mentioned interacting with friends at his home and generally positive relationships with his wife and children. There is also no evidence of disorientation to time or place, persistent delusions or hallucinations, grossly inappropriate behavior, gross impairment in thought process or communication, or memory loss for close relatives, own occupation, or own name. The Board acknowledges the Veteran's testimony and SSA records indicating his inability to work was due to his mental health. However, a 100 percent rating requires total occupational and social impairment. As mentioned above, the Veteran does not have total social impairment. For the above reasons, total occupational and social impairment is not demonstrated by the record, and a 100 percent rating for the Veteran's PTSD is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for lumbar strain. Remand is required for an adequate examination. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination and opinion regarding his lumbar strain in March 2020. The examiner found it less likely than not that the Veteran's back condition was proximately due to or the result of his left knee disability. In support of this finding, the clinician highlighted inconsistent treatment records that would show the Veteran as having both an abnormal and normal gait. The clinician stated that such variability in gait showed the Veteran's back disability was more likely than not secondary to repeated acute injuries to his lumbar spine. The examiner also stated it was less likely than not the Veteran's lumbar strain was aggravated beyond its natural progression by his left knee disability. The rationale for this opinion was that the Veteran's most forward flexion was better in March 2020 than it was in 2015. The Board finds these opinions inadequate. As to the examiner's proximate cause opinion, the clinician failed to address positive evidence within the record, specifically a June 2019 positive nexus opinion by a private physician. As to the aggravation opinion, the examiner fails to address temporary aggravation as required by Ward v. Wilkie, 31 Vet. App. 233 (2019). Additionally, the Veteran suggested in his September 2020 Board hearing that his back disability is secondary to his right knee service-connected disability as well as his left knee. No opinion of record addresses service connection secondary to the Veteran's service-connected right knee. For the above reasons, the Board finds a remand is warranted. 2. Entitlement to a TDIU. As to the claim for a TDIU, the Board finds that it is inextricably intertwined with the above claim. Therefore, the Board finds that it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). The matters are REMANDED for the following action: 1. Obtain addendum opinions regarding the Veteran's lumbar disability. A new examination is only required if deemed necessary by the examiner. The relevant documents in the record should be made available to the examiner, who should indicate that he/she has reviewed the documents. After consideration of the 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 the Veteran's lumbar disability was proximately caused by any service-connected disability, including retropatellar pain syndrome of the left knee, and retropatellar pain syndrome of the right knee. The examiner's attention is drawn to a June 2019 positive nexus opinion by a private physician. The examiner must review, address, and discuss the June 2019 private opinion. (b.) Provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's lumbar disability was aggravated by any service-connected disability, including retropatellar pain syndrome of the left knee, and retropatellar pain syndrome of the right knee. In providing the etiology opinion, the examiner should be aware that the Court held in Ward, supra, that a "permanent worsening" of a non-service-connected disability is not required to establish secondary service connection on the basis of aggravation (i.e., aggravation may include temporary worsening of a disability). (Continued on the next page) The examiner's attention is drawn to a June 2019 positive nexus opinion by a private physician. The examiner must review, address, and discuss the June 2019 private opinion. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (bare conclusory statement will be deemed inadequate). 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 the conclusion as it is to find against it. C. TRUEBA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lee Feldman, 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.