Citation Nr: 21073190 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-46 001 DATE: December 7, 2021 ORDER Entitlement to a 100 percent evaluation for diaphragm paralysis for the period prior to July 18, 2017 is granted. Entitlement to service connection for a cervical spine disability is denied. Entitlement to a total disability rating based on unemployability (TDIU) is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to service connection for depression is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. For the period prior to July 18, 2017, the Veteran's lung disability resulted in Forced Expiratory Volume (FEV)1 of less than 40 percent predicted. 2. The preponderance of the evidence of record is against finding that the Veteran has had a cervical spine disability at any time during or approximate to the pendency of the claim. 3. Throughout the appellate period, the Veteran has been in receipt of a 100 percent schedular rating for his service-connected diaphragm disability. None of his other service-connected disabilities, individually, have resulted in an inability to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent evaluation for diaphragm paralysis for the period prior to July 18, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.7, 4.10, 4.14, 4.20, 4.97, Diagnostic Code 6840 (2019). 2. The criteria for service connection for a cervical spine disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1114 (s), 1155 (2012); 38 C.F.R. §§ 3.350, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to November 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2014 and February 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Increased Rating Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. A proper rating of a Veteran's disability contemplates its history and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. §§ 4.1, 4.2. In determining the appropriate evaluation, many different statutes, regulations, and case law applicable to VA govern. When after careful consideration of all available data, a reasonable doubt arises regarding the degree of disability, such doubt must be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied so that decisions will be equitable and just. 38 C.F.R. § 4.6. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable evaluation for diaphragm paralysis for the period prior to July 18, 2017 The Veteran is currently in receipt of a noncompensable evaluation prior to July 18, 2017 for his diaphragm paralysis. Under the General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) (General Rating Formula), a 10 percent evaluation is warranted for FEV-1 of 71- to 80-percent predicted; FEV-1/FVC of 71 to 80 percent; or, DLCO (SB) of 66- to 80-percent predicted. A 30 percent evaluation is warranted for FEV-1 of 56- to 70-percent predicted; FEV-1/FVC of 56 to 70 percent; or, DLCO (SB) of 56- to 65-percent predicted. A 60 percent evaluation is warranted for FEV-1 of 40- to 55-percent predicted; FEV-1/FVC of 40 to 55 percent; DLCO (SB) of 40- to 55-percent predicted; or, maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is warranted for FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy. When Pulmonary Function Tests (PFTs) are not consistent with clinical findings, evaluations should generally be based on the PFTs. Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes with some exceptions; when evaluating based on PFTs. Post-bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then pre-bronchodilator values should be used for rating purposes. When results of different PFTs (FEV-1, FVC, etc.) are disparate, the test which the examiner states will provide the most accurate reflection of the disability level should be used. 38 C.F.R. § 4.96 (d). The Veteran was afforded a respiratory examination to evaluate the severity of his respiratory condition in July 2014. He reported experiencing shortness of breath, that he uses a CPAP for his sleep apnea, and has a pulse oximeter which shows decreased SaO2 when at rest. The Veteran's respiratory disability was noted not to require oral or parenteral corticosteroid medications, or immuno suppressive medications. No requirement for the use of inhaled medications, oral bronchodilators or antibiotics was noted. His diagnosis of left diaphragm paralysis was noted. A chest x-ray confirmed this diagnosis. Pulmonary function testing showed pre-bronchodilator results as FEV-1 at 46%; FVC at 46%; and FEV-1/FVC at 80% predicted. Post-bronchodilator results showed FEV-1 at 23%; FVC at 23%; and FEV-1/FVC at 80% predicted. The examiner indicated that the test result which most accurately reflects the Veteran's current pulmonary function is the FEV-1/FVC percentage which remained consistent at 80% predicted. The examiner assessed that there is a moderate obstructive lung defect, and pertinently, that there was poor test performance. The examiner stated that testing needs to be repeated because for an elevated hemidiaphragm, lung volumes, which were not obtained, are the most important. The Board notes that review of the claims file shows the Veteran underwent private pulmonology care. He underwent a PFT in September 2016. His FEV-1 was 32% predicted; FVC was 33% predicted; FEV-1/FVC was 76% predicted; TLC was 54% predicted; and DL/VA was 142% predicted. Notably, in September 2016, the private physician found that the September 2016 PFT showed a very severe restrictive lung disease which had significantly worsened in comparison to the PFT performed in 2011 from a FEV-1 of 59% to 32% predicted. There was no indication that the September 2016 PFT results were unreliable. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an evaluation of 100 percent is warranted, for the period prior to July 18, 2017 for service-connected respiratory disability. While the July 2014 VA examiner indicated that the FEV-1/FVC value is most reflective of the Veteran's lung disability, the examiner acknowledged that the testing was problematic and would have to be re-done. Nonetheless, the PFT results on VA examination and the Veteran's private pulmonary records are consistent in that they are reflective of an FEV-1 value of well below 40 percent predicted. To wit, the July 2014 FEV-1 was 23% of predicted, and a private PFT in September 2016 showed FEV-1 of 32% predicted. Therefore, per DC 6840 and the general rating formula for lung disabilities, the Veteran meets the requirements for a 100 percent disability rating given his FEV-1 has been less than 40 percent of predicted value throughout the appellate period. Service Connection Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). As a general matter, service connection for a disability requires evidence of (1) the existence of a current disability, (2) an in-service incurrence of an event, injury, or disease, and (3) a relationship or nexus between the current disability and service. Shedden v. Principi, 381 F.3d. 1163 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303 (b), 3.309; Walker v. Shinseki, 708 F.3d. 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). 2. Entitlement to service connection for a cervical spine disability The Veteran claims entitlement to service connection for a cervical spine disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current cervical spine disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was afforded a general VA examination in August 2000. He reported sustaining a neck injury as a result of a car accident in 1987 and having experienced intermittent pain since. Pertinently, while the examiner took note of the Veteran's cervical pain, there were no objective findings on physical examination. The Veteran was afforded another VA examination in July 2014. He reported that since his accident in 1987, he has had continuous paraspinal back pain at the level of the shoulder blades, radiating to the neck. On physical examination, forward flexion was restricted to 40 degrees; extension was restricted to 40 degrees; right and left lateral flexion were restricted to 40 degrees; and right and left lateral rotation were restricted to 70 degrees. After three repetitions, the Veteran's flexion and extension were unchanged but his bilateral rotation increased to 80 degrees or greater. The examiner clearly assessed that the Veteran does not have any functional loss or impairment of the cervical spine. Muscle strength, reflex and sensory examinations were all normal. The examination was noted to be unremarkable. Review of the Veteran's treatment records during the appellate period reflects that while the Veteran consistently reported neck pain, there has been no diagnosed cervical pathology. The Board further acknowledges the Veteran's lay statements and complaints of record, including those made via an attorney brief of August 2020. It was averred that VA failed to consider the Veteran's motor vehicle accident of 1988, that service treatment records show constant neck and spine pain, and the Veteran's lay statements show continuity of symptomatology. The Board has also considered the effects of pain pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), in which the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Id. at 1367-69. The August 2000 VA examiner had no objective physical findings for the neck, and the July 2014 VA examiner determined that, while the Veteran experienced symptoms of pain, he did not have a cervical spine diagnosis. Further, despite consistent reports of pain in private and VA treatment records, these do not contain a cervical spine diagnosis during the appellate period. Pertinently, the July 2014 VA examiner noted that there is no functional impairment associated with the Veteran's symptoms of pain. The Board notes that there is no conflicting evidence regarding any neck diagnosis, as the Veteran himself, through his representative, also failed to point to any evidence of cervical spine diagnosis during the appellate period or even aver that the Veteran experiences functional impairment of earning capacity due to his neck pain. While the Veteran believes he has a current cervical spine disability, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Board accordingly concludes that the criteria for entitlement to service connection for a cervical spine disability have not been met and, to this extent, the Veteran's claim therefore must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 3. Entitlement to a total disability rating based on unemployability (TDIU) is denied. In an August 2017 Report of General Information, the RO stated that the Veteran indicated that his service-connected diaphragm paralysis and gout, both feet with chronic gouty arthritis kept him from working. He requested a TDIU. In Rice v. Shinseki, the U.S. Court of Appeals for Veterans Claims held that a TDIU rating is part of an increased rating claim when such issue is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the issue of a TDIU is raised by the record, is part and parcel of the initial increased rating claim, and is properly before the Board. Id. VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. See 38C.F.R. §§3.340, 3.341, 4.16. As of this decision, the Veteran has been awarded a schedular 100 percent rating for his service-connected diaphragm paralysis with sleep apnea since May 2013. The Board recognizes that the award of a schedular 100 percent rating does not always render the issue of entitlement to a TDIU as moot. VA has a "well-established duty" to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. at 294 (finding that SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim). The logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims entitlement to TDIU for a separate disability, VA must consider the latter claim despite the existence of the schedular total rating. VA may then award SMC under 38 U.S.C. § 1114 (s) if VA finds the separate disability supports individual unemployability independent of the other 100 percent disability rating. Bradley, 22 Vet. App. at 294 (Section 1114(s) does not limit the requirement for a "service-connected disability rated as total" to only a schedular rating of 100 percent, but may be satisfied by a TDIU rating based on a single disability). During the entire appellate period, given the increased rating granted herein, the Veteran was in receipt of a 100 percent schedular rating for his service-connected diaphragm disability, but the award of this schedular 100 percent rating did not automatically render the issue of entitlement to a TDIU as moot. SMC is payable at the housebound rate if the veteran has a service-connected disability rated as total, and has additional service-connected disability or disabilities independently ratable at 60 percent or more. 38U.S.C. §1114 (s). Aside from his 100 percent schedular rating for his service-connected diaphragm disability, the Veteran has been service connected for Gout, evaluated as 40 percent disabling. The Veteran does not meet the SMC criteria, as the disability ratings beside the Veteran's 100 percent schedular rating for service-connected psychiatric disability do not combine to a total of 60 percent under 38C.F.R. §4.25. The next inquiry is whether the Veteran would be entitled to a TDIU on the basis of any of his individual service-connected disabilities other than his 100 percent rated psychiatric disability. The Board notes that in Bradley, the Court found that a TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a single disability other than the disability for which a 100 percent rating was in effect. Under this factual scenario, the TDIU based on a single disability other than the 100 percent rated disability would meet the "service-connected disability rated as total" prong of a SMC claim, and the 100 percent schedular rating would meet the "additional service-connected disability or disabilities independently ratable at 60 percent or more" prong of a SMC claim, sufficient to warrant an award of SMC benefits. A TDIU based on the cumulative impact of all service-connected disabilities, aside from the 100 schedular rating, would not allow for a successful SMC claim, as a cumulative TDIU does not satisfy the statutory requirement that the total disability be based upon a single disability. See Bradley, 22 Vet App. at 294. Excluding the 100 percent schedular rating, the Veteran's other service-connected disabilities do not individually satisfy the schedular TDIU criteria. See 38 C.F.R. § 4.16 (a). Additionally, the evidence during the appellate period fails to contain plausible evidence that any of the Veteran's disabilities, excluding his service-connected diaphragm disability, individually precludes the Veteran from securing and following substantially gainful employment, consistent with his past educational attainment and occupational history. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). Neither the Veteran nor his agent have cited to any evidence of record demonstrating that the Veteran lacked the residual functional capacity to perform past employment based solely on limitations caused by any individual service-connected disability, aside from his diaphragm disability during the appellate period. Further, the Veteran has not alleged that his gout individually results in entitlement to a TDIU during this time period. Rather, it is contended that his cumulative disabilities, including issues on appeal which are not service connected as of yet keep him from working. See August 2017 correspondence. In light of the above considerations, the Board finds no basis upon which to refer a claim of extraschedular TDIU to VA's Director of Compensation Service due to any of the Veteran's individual service-connected disabilities, aside from his service-connected diaphragm disability. See 38 C.F.R. § 4.16 (b). Accordingly, the Veteran's appeal seeking entitlement to a TDIU is denied at this time. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. When VA undertakes to obtain an examination/opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion/examination is considered adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran was afforded a VA headache examination in July 2014. The Veteran was confirmed to have a diagnosis of tension headaches. The examiner opined that the Veteran's headaches are less likely than not related to service, reasoning that despite a physician statement of 1989 documenting headaches, there are no treatment records documenting chronic pathology or complaints. The Board finds this rationale to be insufficient for adjudication purposes. In this regard, a documentation lapse in treatment records is not sufficient on its own to defeat a claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, the Board notes that the Veteran is competent to report headache pain, as this is a lay observable symptom. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007). The examiner also makes no mention of the headache notations in service treatment records, including persistent headaches and head trauma in a February 1988 treatment note. The Board thus finds that the July 2014 VA examiner's opinion is inadequate, and a new VA opinion should be obtained. 2. Entitlement to service connection for depression is remanded. The Veteran was not afforded a VA examination for his claim of service connection for depressive disorder. A medical examination or medical opinion is necessary in a claim for service connection when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The McLendon elements are satisfied with regard to the Veteran's claimed depression. The first element is not in dispute; the Veteran's VA medical records reflect diagnosis of depression. See February 2013 and June 2018 VA medical records. Regarding the second element, the Board notes that the Veteran claims service connection on a secondary basis to his service-connected physical conditions, including sleep apnea. See August 2020 attorney brief. Indeed, the Veteran is service connected for sleep apnea. Regarding the third and fourth elements, there is an indication that the Veteran's acquired psychiatric disabilities could be related to his service-connected disabilities. In this regard, the Board notes that the Veteran, through his representative, referenced clinical research studies which have established an etiological connection between sleep apnea and depression. However, there is insufficient evidence of record by which the Board can make a decision. The Veteran was not afforded a VA examination to determine the nature and etiology of his psychiatric disability, and the Board affords the Veteran every benefit of the doubt. As the four McLendon elements are satisfied, the Veteran is entitled to a VA examination and medical opinion. 3. Entitlement to service connection for a left shoulder disability is remanded. 4. Entitlement to service connection for a right shoulder disability is remanded. When VA undertakes to obtain an examination/opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion/examination is considered adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran was afforded a VA shoulder examination in July 2014. The Veteran was confirmed to have a diagnosis of right shoulder rotator cuff tear, gout of the right shoulder, and the examiner acknowledged the Veteran's left shoulder pain as well as reports bilateral symptoms have been continuous since his in-service motor vehicle accident. The examiner opined that the Veteran's bilateral shoulder disability is less likely than not related to service. It was reasoned that the present shoulder pain the Veteran experiences is more likely than not referred pain from trapezius spasms which were also noted after the motor vehicle accident he sustained in service, and is known to radiate to the neck and shoulders. The examiner further stated that there is no continuum of treatment documented to indicate a chronic condition. The Board first notes that the examiner's rationale indicating no documented continuum of treatment stands in contrast to the Veteran's competent reports of continuous shoulder pain since his accident in service. It is unclear what weight the examiner gave, if any, to the Veteran's lay reports. Furthermore, the implication that there is lacking documentation of shoulder treatment during the appellate period is inaccurate. In this regard, the Board notes that the examiner addressed a post-service right rotator cuff tear diagnosis and pain but failed to acknowledge and address a diagnosis of bone disease of the left sternoclavicular joint and inflammatory arthritis documented on bone scan in January 2003. The Board thus finds that the July 2014 VA examiner's opinion is inadequate, and a new VA opinion should be obtained. 5. Entitlement to service connection for a lumbar spine disability is remanded. When VA undertakes to obtain an examination/opinion, it must ensure that the examination/opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion/examination is considered adequate "where it is based on consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Veteran was afforded a VA lumbar spine examination in July 2014. The examiner confirmed the Veteran's lumbar strain diagnosis, indicating he was first diagnosed in 1987 during his period of active service. The examiner then opined that the Veteran's lumbar spine disability is less likely than not related to service. It was reasoned that there is no continuum of treatment nor complaints for the back strain noted in 1990 indicating a chronic condition. Again, the Board reiterates that a documentation lapse in treatment records is not sufficient on its own to defeat a claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Furthermore, the Veteran is competent to report back pain, as this is a lay observable symptom. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed Cir. 2007). The examiner did not consider the Veteran's lay reports in the etiological opinion. The Board thus finds that the July 2014 VA examiner's opinion is inadequate, and a new VA opinion should be obtained. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records. 2. Thereafter, obtain addendum opinions from appropriate medical professional(s), regarding the etiology of the Veteran's claimed headaches, bilateral shoulder disability and lumbar spine disability. If any examiner finds that additional examination is warranted, such should be arranged. After a review of the claims file, including a copy of this remand, the examiner should provide opinions as to whether: (a.) It is at least as likely as not (50 percent or greater probability) that the Veteran has headache disability that had its onset in or is otherwise related to his period of active service; (b.) It is at least as likely as not (50 percent or greater probability) that the Veteran has a bilateral shoulder disability that had its onset in or is otherwise related to his period of active service; (c.) It is at least as likely as not (50 percent or greater probability) that the Veteran has a lumbar spine disability that had its onset in or is otherwise related to his period of active service; A complete rationale must be given for all opinions and conclusions expressed. If any examiner cannot provide an opinion without resort to speculation, he or she should provide an explanation as to why this is so and whether there is additional evidence that would permit the opinion to be provided. The examiner is instructed to carefully read remand reasons and instructions, and address the same in detail. The examiner is further advised that the Veteran is competent to report pain and other lay observable symptoms. The examiner is finally advised to consider and specifically address all pertinent evidence in the claims file regarding the etiology of the Veteran's claimed disabilities. 3. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disability, to include depression. The claims folder should be made available to the examiner in connection with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner must examine the Veteran and assign a diagnosis for each psychiatric disability he experiences. For each psychiatric disability diagnosed, the examiner must provide a well-reasoned opinion as to each of the following: a. Whether it is at least as likely as not that the disability began in service or is otherwise etiologically related to the Veteran's time on active duty. b. Whether it is at least as likely as not that the disability was caused by the Veteran's service-connected disabilities. c. Whether it is at least as likely as not that the disability was aggravated by the Veteran's service-connected disabilities. (Continued on the next page) The examiner is advised that the Veteran has a current diagnosis of depression in his VA treatment records. The examiner is further advised to specifically address the entirety of the pertinent evidence of record, including lay statements from the Veteran. A complete rationale for any opinion expressed, to include citation to specific medical documents and clinical findings, must be included in the report. Journet Shaw Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.