Citation Nr: 21070573 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 13-11 784 DATE: November 24, 2021 ORDER Entitlement to an initial compensable rating for bilateral hearing loss is denied. REMANDED Entitlement to service connection for sleep disturbance (claimed as sleep apnea), to include as due to exposure to environmental hazards during the Gulf War, is remanded. Entitlement to an initial increased rating above 10 percent prior to August 27, 2012, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis, is remanded. Entitlement to an increased rating above 10 percent from November 1, 2012, through December 20, 2014, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis, is remanded. Entitlement to an increased rating above 20 percent from December 21, 2014, through August 16, 2016, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis, is remanded. Entitlement to an increased rating above 20 percent from October 1, 2016, through January 14, 2020, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis, is remanded. Entitlement to an increased rating above 40 percent since January 15, 2020, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis, is remanded. Entitlement to an initial increased rating above 10 percent prior to January 15, 2020, for left lower extremity (LLE) sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 is remanded. Entitlement to an increased rating above 20 percent from January 15, 2020, through March 7, 2021, for LLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 is remanded. Entitlement to an increased rating above 40 percent since March 8, 2021, for LLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 is remanded. Entitlement to an initial increased rating above 10 percent prior to January 15, 2020, for right lower extremity (RLE) sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 is remanded. Entitlement to an increased rating above 20 percent since January 15, 2020, for RLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 is remanded. FINDING OF FACT Applying puretone threshold average and speech discrimination data to Table VI and Table VII, the Veteran's bilateral hearing loss results in a noncompensable rating throughout the appeal period. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 3.385, 4.1, 4.3, 4.7, 4.85, Diagnostic Code (DC) 6100, Tables VI and VII (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from May 2004 to October 2009, including in Southwest Asia. This appeal originates from a May 2010 Rating Decision, in which the Agency of Original Jurisdiction (AOJ), in pertinent part: granted service connection for the back disability at 10 percent effective October 17, 2009; granted service connection for radiculopathy at 10 percent effective October 17, 2009; granted service connection for bilateral hearing loss at 0 percent effective October 17, 2009; and denied service connection for sleep apnea. In a November 2012 Rating Decision, the AOJ granted a temporary convalescence rating for the back disability at 100 percent from August 27, 2012, through October 31, 2012, and also assigned a 10 percent rating effective November 1, 2012. In a February 2015 Rating Decision, the AOJ increased the back disability rating from 10 percent to 20 percent effective December 21, 2014. In a January 2016 Rating Decision, the AOJ granted service connection for RLE sciatic radiculopathy at 10 percent effective March 11, 2015. In May 2016, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In an October 2016 Rating Decision, the AOJ granted a temporary convalescence rating for the back disability at 100 percent from August 17, 2016, through September 30, 2016, and also assigned a 20 percent rating effective October 1, 2016; the AOJ also granted special monthly compensation (SMC) at the housebound rate from August 17, 2016, through October 1, 2016. In a March 2017 Decision, the Board, in pertinent part, remanded: entitlement to service connection for a sleep disorder, to include sleep apnea; entitlement to an increased rating above 10 percent prior to December 21, 2014, for the back disability; entitlement to an increased rating above 20 percent since December 21, 2014, for the back disability; entitlement to a compensable rating for bilateral hearing loss; entitlement to an increased rating above 10 percent for LLE sciatic radiculopathy; and entitlement to an increased rating above 10 percent for RLE sciatic radiculopathy. In an October 2019 Decision, the Board, in pertinent part, remanded: entitlement to service connection for sleep apnea; entitlement to an increased rating above 10 percent prior to December 21, 2014, for the back disability; entitlement to an increased rating above 20 percent since December 21, 2014, for the back disability; entitlement to a compensable rating for bilateral hearing loss; entitlement to an increased rating above 10 percent for LLE sciatic radiculopathy; and entitlement to an increased rating above 10 percent for RLE sciatic radiculopathy. In an April 2021 Rating Decision, the AOJ granted: an increased rating for the back disability from 20 percent to 40 percent effective January 15, 2020; an increased rating for the LLE radiculopathy from 10 percent to 20 percent effective January 15, 2020; an increased rating for the RLE radiculopathy from 10 percent to 20 percent effective January 15, 2020; and SMC at the housebound rate from August 27, 2012, through November 1, 2012. In a July 2021 Rating Decision, the AOJ granted an increased rating for LLE radiculopathy from 20 percent to 40 percent effective March 8, 2021. 1. Entitlement to an initial compensable rating for bilateral hearing loss In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. Generally, severity of hearing impairment is calculated by applying puretone threshold average and speech discrimination to Table VI and Table VII. 38 C.F.R. § 4.85, DC 6100, Tables VI and VII. Examinations of hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. 38 C.F.R. § 4.85(a). The Veteran's bilateral hearing loss has been rated under DC 6100 as noncompensable since October 17, 2009. See July 2021 Codesheet; 38 C.F.R. § 4.85, DC 6100, Tables VI and VII. The Veteran generally contends that his hearing loss is worse than currently rated. During the February 2010 VA audiological examination, the Veteran reported: difficulty hearing people talking when other, background noises are present; everything has to be louder for him to be able to hear; and he cannot hear noises that others hear. The examiner measured right ear (better) loss of: 20 decibels (dB) at 1000 Hertz (Hz); 15 dB at 2000 Hz; 25 dB at 3000 Hz; 50 dB at 4000 Hz; average 28 dB; and Maryland CNC Test at 96 percent. This examiner measured left ear (poorer) loss of: 20 dB at 1000 Hz; 15 dB at 2000 Hz; 35 dB at 3000 Hz; 55 dB at 4000 Hz; average 31 dB; and Maryland CNC Test at 96 percent. Applying these values to Table VI, the right ear results in a Roman Numeral designation of I and the left ear results in a Roman Numeral designation of I; applying the results of Table VI to Table VII, the resulting rating is 0 percent. In an April 2011 Notice of Disagreement (NOD), the Veteran reported, in pertinent part, that his hearing loss affects his ability to perform everyday tasks. During the December 2014 VA audiological examination, the Veteran reported: not being able to hear what people are saying in the distance when there is background noise; and not being able to hear the microwave timer going off. The examiner measured right ear (better) loss of: 25 decibels (dB) at 1000 Hertz (Hz); 15 dB at 2000 Hz; 40 dB at 3000 Hz; 60 dB at 4000 Hz; average 35 dB; and Maryland CNC Test at 92 percent. This examiner measured left ear (poorer) loss of: 30 dB at 1000 Hz; 25 dB at 2000 Hz; 60 dB at 3000 Hz; 70 dB at 4000 Hz; average 46.25 dB (which rounds down to 46 dB); and Maryland CNC Test at 90 percent. This examiner found the puretone test results to be valid for rating purposes and the use of word recognition scores to be appropriate bilaterally. Applying these values to Table VI, the right ear results in a Roman Numeral designation of I and the left ear results in a Roman Numeral designation of II; applying the results of Table VI to Table VII, the resulting rating is 0 percent. A July 2015 treatment record from a private provider (Family Hearing Sensory Neural Center) noted speech audiometry and word recognition measurements. However, there is no indication that the private provider was a state-licensed audiologist, that the provider measured puretone thresholds, or that the provider used the Maryland CNC word list; as such, these measurements are inadequate for VA purposes. 38 C.F.R. § 4.85(a). During the May 2016 Board Hearing, the Veteran and his spouse testified, in pertinent part, that his hearing had worsened such that: he could not hear the oven timer going off; a private provider in July 2015 found average decibel loss and speech discrimination to have worsened (and reported approximate measurements); he has difficulty hearing with everyday background noises; and his headaches increase when he does not wear his hearing aids and has to strain to hear. In the March 2017 Decision, the Board remanded this issue for the AOJ to obtain a new examination to assess the severity of the hearing loss after the Veteran's contentions of worsening. In an October 2017 Buddy Statement, AC (the Veteran's spouse) contended that: the Veteran's hearing loss was impacting his daily life; he cannot hear the oven timer going off even when standing by it; he cannot hear his daughter cry at night even when awake; and he has daily headaches. In an August 2018 letter, private provider Dr. AJ (Psychiatric Solutions PC) documented the Veteran's reports that his hearing problems have made it difficult to do certain tasks (such as cooking because he cannot hear the oven timer) and his migraines are worsened by his hearing loss. In an August 2019 Brief, the representative contended that the Veteran's hearing loss: prevents optimal performance, especially in the presence of background noise; results in total communication failure or problems; and presents significant deficits with activities of daily living. In the October 2019 Decision, the Board remanded this issue for the AOJ to obtain a new examination to assess the severity of the hearing loss because it failed to afford the Veteran the examination directed in the March 2017 Board Decision. During the January 2020 VA audiological examination, the Veteran reported: his hearing loss and difficulties communicating has affected his job performance; he wears a hearing aid; and he had to resign from the Fire Department due to his hearing loss. The examiner measured right ear (poorer) loss of: 35 decibels (dB) at 1000 Hertz (Hz); 30 dB at 2000 Hz; 80 dB at 3000 Hz; 70 dB at 4000 Hz; average 53.75 dB (which rounds up to 54 dB); and Maryland CNC Test at 94 percent. This examiner measured left ear (better) loss of: 25 dB at 1000 Hz; 30 dB at 2000 Hz; 60 dB at 3000 Hz; 90 dB at 4000 Hz; average 51.25 dB (which rounds down to 51 dB); and Maryland CNC Test at 100 percent. This examiner found the puretone test results to be valid for rating purposes and the use of word recognition scores to be appropriate bilaterally. Applying these values to Table VI, the right ear results in a Roman Numeral designation of I and the left ear results in a Roman Numeral designation of I; applying the results of Table VI to Table VII, the resulting rating is 0 percent. Based on the evidence above, the Board finds that the Veteran's bilateral hearing loss results in a noncompensable rating throughout the appeal period. Higher ratings are not warranted because the application of the puretone threshold average and speech discrimination to Table VI and Table VII do not show a severity higher than that contemplated by the noncompensable rating. 38 C.F.R. § 4.85, DC 6100, Tables VI and VII. Further, the Board finds that an increased rating for the symptom of increased headaches (when not using a hearing aid) is not warranted because the Veteran has already been service connected for migraines and tension headaches throughout the appeal period. See July 2021 Codesheet. Although the Board has considered the lay reports of how the Veteran's hearing loss has affected his daily functioning, the Board highlights that the rating criteria for a hearing loss disability already contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are the effects that VA's audiometric tests are designed to measure. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In essence, VA's audiological examinations are designed for purposes of obtaining information necessary for the full and accurate application of the "Percentage Evaluation for Hearing Impairment" tables, which are based exclusively on the results provided from two objective tests namely, a pure tone audiometry test and a speech discrimination test. 38 C.F.R. § 4.85. Accordingly, the Board finds that the objective clinical findings outweigh the lay assertions regarding whether an increased rating is warranted. It must be emphasized that a disability rating for bilateral hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designation assigned after audiometry results are obtained. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Here, all of the audiometric testing of record indicates that the Veteran's condition does not warrant a compensable rating; as such, the Board must deny the claim. REASONS FOR REMAND 1. Entitlement to service connection for sleep disturbance (claimed as sleep apnea), to include as due to exposure to environmental hazards during the Gulf War In the October 2019 Decision, the Board remanded for an addendum etiological opinion because the April 2017 VA opinion was inadequate. Specifically, the April 2017 VA examiner opined that, because there was no sleep apnea diagnosis, the sleep disorder was less likely than not caused or aggravated by service; however, that examiner never opined regarding whether the sleep disturbance symptoms are related to his exposure to environmental hazards during the Gulf War (sleep disturbance is considered a potential sign or symptom related to Gulf War chronic multi-symptom illness). In January 2020, the AOJ afforded the Veteran a new examination and the examiner rendered an unfavorable etiological opinion with the rationale that, because the sleep study was negative for sleep apnea, the Veteran's sleep disturbance was less likely than not related to service; the January 2020 examiner did not render an opinion regarding the Veteran's exposure to environmental hazards during the Gulf War. The January 2020 examiner repeated the same error as the April 2017 examiner, despite the Board's October 2019 directives; as such, it is also inadequate, and the Board must remand again for medical development. Stegall v. West, 11 Vet. App. 268, 271 (1998). 2. Entitlement to an initial increased rating above 10 percent prior to August 27, 2012, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis The Veteran's back disability is currently rated at: 10 percent from October 17, 2009; 100 percent from August 27, 2012 (pursuant to 38 C.F.R. § 4.30); 10 percent from November 1, 2012; 20 percent from December 21, 2014; 100 percent from August 17, 2016 (pursuant to 38 C.F.R. § 4.30); 20 percent from October 1, 2016; and 40 percent since January 15, 2020. See July 2021 Codesheet; 38 C.F.R. § 4.71a, DC 5299-5239. The Veteran has also been awarded SMC at the housebound rate from August 27, 2012, to November 1, 2012, and August 17, 2016, to October 1, 2016, because, during those periods, the back disability was rated at 100 percent and additional service-connected disabilities were independently ratable at 60 percent or more. See July 2021 Codesheet. The Veteran generally contends that the severity of this disability warrants higher ratings throughout the appeal period. In the October 2019 Decision, the Board remanded the increased rating issues for the AOJ to obtain a new examination to assess the severity of the back disability after the Veteran's contentions of worsening. In the October 2019 Decision, the Board also found the evidence sufficient to show that not all the reported symptoms are contemplated by the Rating Schedule and his symptoms have caused marked interference with employment and frequent periods of hospitalization; as such, the Board also directed the AOJ to refer the issue to the Director of Compensation Service for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1). In January 2020, the AOJ afforded the Veteran a VA back conditions examination. During that examination, the Veteran reported: daily constant back pain that averages 3 out of 10 on the pain scale; severe flare-ups occurring one to two times per week and lasting for two to three days at a time (precipitated by wrong step, twisting, and bending) that are alleviated by medications, ice, heat, and lying flat; and functional loss (has trouble bending, lifting, pushing, pulling, and with prolonged periods of standing and walking). Initial range of motion (ROM) testing revealed, in pertinent part: forward flexion from 0 to 45 degrees; combined ROM at 120 degrees; pain that causes functional loss; and pain on palpation. Observed repetitive use testing revealed, in pertinent part: forward flexion from 0 to 30 degrees; combined ROM at 105 degrees; and pain, fatigue, and lack of endurance causing functional loss. Repetitive use over time testing revealed, in pertinent part: that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time; pain, weakness, and lack of endurance significantly limit functional ability with repeated use over time, which the examiner said could be described in terms of ROM (forward flexion from 0 to 30 degrees and combined ROM at 105 degrees). Flare-ups testing revealed, in pertinent part: that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups; pain, fatigue, weakness, and lack of endurance significantly limit functional ability during flare-ups, which the examiner said could be described in terms of ROM (forward flexion from 0 to 30 degrees and combined ROM at 105 degrees). Crucially, the January 2020 VA back conditions examination is inadequate because it is inconsistent with the holding in Sharp. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (the examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). Specifically, the January 2020 examiner documented the Veteran's reports of flare-ups (described as severe pain spanning days that required various treatment methods including lying down), indicated that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups, indicated that pain significantly limited functional ability with flare-ups, and indicated that the functional loss due to flare-ups was able to be described in terms of range of motion loss. However, the examiner documented the same measurements for range of motion loss during flare-ups as he did for range of motion loss during observed repetitive use and range of motion loss during repetitive use over time. Crucially, the examiner indicated that: pain, fatigue, and lack of endurance limited functional ability during observed repetitive use; pain, weakness, and lack of endurance significantly limited functional ability with repeated use over time; and pain, fatigue, weakness, and lack of endurance significantly limited functional ability during flare-ups. However, the examiner then contradictorily estimated the same range of motion loss for all three of those scenarios (which seemingly does not consider the additional significant limitation in functional ability during flare-ups as described by the Veteran and as indicated by the examiner without proper estimation). Barr v. Nicholson, 21 Vet. App. 303 (2007); Sharp, supra. As such, the January 2020 VA back conditions examination is inadequate, and the Board must remand for further medical development. 3. Entitlement to an increased rating above 10 percent from November 1, 2012, through December 20, 2014, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis This issue is remanded for the reasons and bases discussed above. 4. Entitlement to an increased rating above 20 percent from December 21, 2014, through August 16, 2016, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis This issue is remanded for the reasons and bases discussed above. 5. Entitlement to an increased rating above 20 percent from October 1, 2016, through January 14, 2020, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis This issue is remanded for the reasons and bases discussed above. 6. Entitlement to an increased rating above 40 percent since January 15, 2020, for diffuse posterior bulge L4-5 and disc herniation L5-S1, to include on an extraschedular basis This issue is remanded for the reasons and bases discussed above. 7. Entitlement to an initial increased rating above 10 percent prior to January 15, 2020, for LLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 The Veteran's LLE sciatic radiculopathy is currently rated at: 10 percent from October 17, 2009; 20 percent from January 15, 2020; and 40 since March 8, 2021. See July 2021 Codesheet; 38 C.F.R. § 4.124a, DC 8520, 8620. The Veteran generally contends that the severity of this disability warrants higher ratings throughout the appeal period. In the October 2019 Decision, the Board remanded the increased rating issues for the AOJ to obtain a new examination to assess the severity of the radiculopathy because, although the Veteran had previously been afforded a VA back conditions examination (which briefly addressed the radiculopathy), a more complete peripheral nerve examination was warranted. In March 2021, the AOJ afforded the Veteran a VA peripheral nerves conditions examination. The examiner was identified as a nurse practitioner, which the representative took issue with in the October 2021 Brief, arguing that there is no indication that the nurse practitioner who conducted the March 2021 examination had any training, knowledge, or expertise in neurology that would make him competent to perform such testing, make such findings, or render such opinions. To challenge the competency of a medical examiner, a claimant is required to raise this challenge in the first instance (which the Veteran has done in this case); accordingly, VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the claimant. Francway v. Wilkie, 2018-2136 (Fed. Cir. Oct. 15, 2019). The Board acknowledges the Veteran's challenge to the March 2021 VA examiner's competency and has ordered the AOJ to provide the examiner's qualifications to the Veteran in the directives below. 8. Entitlement to an increased rating above 20 percent from January 15, 2020, through March 7, 2021, for LLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 This issue is remanded for the reasons and bases discussed above. 9. Entitlement to an increased rating above 40 percent since March 8, 2021, for LLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 This issue is remanded for the reasons and bases discussed above. 10. Entitlement to an initial increased rating above 10 percent prior to January 15, 2020, for RLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 The Veteran's RLE sciatic radiculopathy is currently rated at: 10 percent from March 11, 2015; and 20 percent since January 15, 2020. See July 2021 Codesheet; 38 C.F.R. § 4.124a, DC 8520, 8620. The Veteran generally contends that the severity of this disability warrants higher ratings throughout the appeal period. In the October 2019 Decision, the Board remanded the increased rating issues for the AOJ to obtain a new examination to assess the severity of the radiculopathy because, although the Veteran had previously been afforded a VA back conditions examination (which briefly addressed the radiculopathy), a more complete peripheral nerve examination was warranted. In March 2021, the AOJ afforded the Veteran a VA peripheral nerves conditions examination. The examiner was identified as a nurse practitioner, which the representative took issue with in the October 2021 Brief, arguing that there is no indication that the nurse practitioner who conducted the March 2021 examination had any training, knowledge, or expertise in neurology that would make him competent to perform such testing, make such findings, or render such opinions. To challenge the competency of a medical examiner, a claimant is required to raise this challenge in the first instance (which the Veteran has done in this case); accordingly, VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the claimant. Francway v. Wilkie, 2018-2136 (Fed. Cir. Oct. 15, 2019). The Board acknowledges the Veteran's challenge to the March 2021 VA examiner's competency and has ordered the AOJ to provide the examiner's qualifications to the Veteran in the directives below; the Board has also ordered the AOJ to provide a new examination by an examiner competent in neurology if the March 2021 VA examiner has no qualifications in neurology. 11. Entitlement to an increased rating above 20 percent since January 15, 2020, for RLE sciatic radiculopathy associated with diffuse posterior bulge L4-5 and disc herniation L5-S1 This issue is remanded for the reasons and bases discussed above. The matters are REMANDED for the following action: 1. Obtain an etiological opinion regarding whether Veteran's sleep disturbance symptoms are related to his exposure to environmental hazards during the Gulf War (sleep disturbance is considered a potential sign or symptom related to Gulf War chronic multi-symptom illness). In doing so, the examiner should opine as to whether: (a) it is at least as likely as not that the Veteran's sleep disorder had its onset in service or is related to service, to include exposure to Gulf War environmental hazards; (b) the Veteran's sleep disorder is considered a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities; and (c) the Veteran's sleep disorder is considered a chronic multi-symptom illness of partially understood etiology and pathophysiology. The examiner and AOJ are advised that the January 2020 examiner repeated the same error as the April 2017 examiner (failing to render an opinion regarding the Veteran's exposure to environmental hazards during the Gulf War); the lack of a sleep apnea diagnosis is irrelevant to the examiner's need to render an opinion regarding the Veteran's exposure to environmental hazards during the Gulf War. The Board defers to the examiner's discretion to determine whether in-person examination is required to render the requested opinion. 2. Obtain a new examination to assess the current severity of the Veteran's back disability. Provide the Veteran with the qualifications of the examiner who conducted the March 2021 VA peripheral nerve conditions examination, including any qualifications in neurology. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.