Citation Nr: 21073372 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 20-09 253 DATE: December 8, 2021 ORDER Entitlement to an earlier effective date, than November 28, 2006, for the grant of service connection for bilateral hearing loss is denied. Entitlement to an earlier effective date, than November 28, 2006, for the grant of service connection for tinnitus is denied. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for macular degeneration with senile cataracts and dermatochalasis is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for obstructive sleep apnea (OSA) is remanded. Entitlement to service connection for right hip arthritis is remanded. Entitlement to service connection for left hip arthritis is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for degenerative arthritis of the spine (also claimed as lower back) is remanded. Entitlement to total disability individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's original service connection claim was received by VA on November 28, 2006, and the service connection award for hearing loss is established from that date. 2. The Veteran's original service connection claim was received by VA on November 28, 2006, and the service connection award for tinnitus is established from that date. 3. During the period on appeal, the Veteran's hearing acuity has been no worse than Level III in the right ear and Level IV in the left ear. 4. The Veteran's service-connected tinnitus is assigned the maximum schedular evaluation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than November 28, 2006, for the award of service connection for bilateral hearing loss have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date earlier than November 28, 2006, for the award of service connection for tinnitus have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 3. The criteria for entitlement to an initial rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code (DC) 6100. 4. The criteria for entitlement to an initial evaluation in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260; Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from February 18, 1959, to February 17, 1965, and from May 17, 1965, to November 17, 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office (RO). While pending appeal, in a February 2020 rating decision, the RO awarded partial grants for the Veteran's claims for entitlement to earlier effective dates for service connection for bilateral hearing loss and tinnitus, both effective are November 28, 2006. As will be discussed below, his claims remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) In May 2021, the Veteran testified at a video conference hearing before the undersigned acting Veterans Law Judge (AVLJ). A transcript of that testimony is of record. For clarity, the Board acknowledges that on hearing the Veteran attempted to withdrawal his pending claims for earlier effective dates, and increase rating, for his service-connected bilateral hearing loss and tinnitus disabilities. Nevertheless, following consideration of the transcript, and out of an abundance of caution, the Board finds these withdrawals to be invalid, as the record does not sufficiently support the Veteran had full understanding of the consequences of his actions and/or the extent of the issues on appeal. To that end, on hearing, the undersigned noted the "statement of the case contained issues for earlier effective date for...bilateral hearing loss and tinnitus [and indicated] the Veteran [had] chosen to withdraw any further appeal related to the bilateral hearing loss and tinnitus." Per the Court in Delisio v. Shinseki, an oral withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. 25 Vet. App. 45, 57 (2011). Unfortunately, the transcript is negative for discussion by the undersigned, or the Veteran's counsel, clarifying that claims for increase rating remained on appeal. The transcript is also negative for explanation of the consequences of withdrawal generally. As the transcript is negative for discussion as to the effects and/or consequences of withdrawal as well as explicit discussion of the claims for increase rating being withdrawn, the Board finds that the standards of Delisio have not been met. Accordingly, the Board cannot find that the Veteran fully understood the nature and consequences of his actions, such that he had clear intent to withdrawal all four of his appeals. Therefore, these appeals remain pending before the Board and they are addressed herein. Earlier Effective Date 1. Entitlement to an earlier effective date, than November 28, 2006, for the grant of service connection for bilateral hearing loss. 2. Entitlement to an earlier effective date, than November 28, 2006, for the grant of service connection for tinnitus. VA regulations provide that a claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p) (as revised effective Feb.19,2019). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). VA law provides that the effective date for an award of disability compensation for an initial direct service connection claim shall be the date of receipt of the claim, or the date entitlement arose, whichever is later, unless the claim is received within one year of separation from service. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). The Veteran generally seeks earlier effective dates for his service-connected disabilities without specific argument. Entitlement to an earlier effective date is not warranted for either disability, therefore the claims must be denied. By way of a July 2018 rating decision, service connection for bilateral hearing loss and tinnitus was originally awarded effective October 31, 2017. These original effective dates were predicated upon receipt of a VA Intent to File Form 21-0966 on October 31, 2017. Thereafter, the Veteran appealed these effective dates. In response, in a February 2020 rating decision, the RO granted earlier effective dates of November 28, 2006. These new dates corresponding to the date of receipt of informal claims for service-connection for bilateral hearing loss and tinnitus which had remained pending until the time of the initial grant of service connection. Subsequent to this award, as discussed above, the Veteran continued his appeals without argument. That said, per the record, the Veteran's original service connection claims were received by VA on November 28, 2006. Service connection awards for tinnitus and bilateral hearing loss are established from that date. There is no evidence that an earlier claim was submitted to VA, nor has the Veteran asserted that any such claims were provided. There is no apparent basis in law or fact for an earlier effective date. Therefore, the appeal as to these matters is denied. Increase Rating The Veteran's bilateral hearing loss is rated as noncompensable under DC6100. Evaluations of hearing loss range from noncompensable to 100 percent, based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85 (a) and (d). The rating schedular provides Table VI to determine a Roman numeral designation (I through XI) for hearing impairment based on pure tone thresholds and controlled speech discrimination (Maryland CNC) testing. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment of each ear. 38 C.F.R. § 4.85. The "pure tone threshold average" as used in Table VI, is the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. This average is used in all cases to determine the Roman numeral designation for hearing impairment from Table VI or VIa. 38 C.F.R. § 4.85(d). Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, Table VI or Table VIa is to be used, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). Additionally, when the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, Table VI or Table VIa is to be used, whichever results in the higher numeral. Thereafter, that numeral will be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). 3. Entitlement to an initial rating in excess of 10 percent for bilateral hearing loss. The Veteran generally contends that he is entitled to a higher rating but provides no specific argument as to entitlement. Following consideration of the record, increase rating is not warranted. A June 2018 VA examination reveals that the Veteran reported significant difficulties with hearing clearly. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 30 40 60 65 48.75 80 LEFT 35 40 55 70 50 76 Applying the results to Table VI, the findings yield a numeric designation of Level III in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level III for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 10 percent disability rating under DC 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. On Board hearing, the Veteran and his representative, confirmed that all treatment records were associated with the claims file. Review of treatment medical records does not reveal audiological testing documenting findings worse than above. In that regard, the Board acknowledges that the Veteran submitted a private January 2017 audiology examination report. The 2017 report listed word recognition scores, but did not use the Maryland CNC word list. Instead, the physician used both MCL (most comfortable list) and WRS (word recognition score). As these audiometric examinations do not conform to the requirements of 38 C.F.R. § 3.385 they cannot be used to evaluate the severity of the Veteran's bilateral hearing loss. Based on the evidence above, a rating in excess of 10 percent for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including his significantly decrease ability to hear clearly. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 10 percent for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an initial rating in excess of 10 percent for tinnitus. The Veteran contends that a higher disability evaluation, in excess of 10 percent, is warranted for his tinnitus disability. He has provided no specific assertion for why an increase rating is appropriate. Under 38 C.F.R. § 4.87, DC 6260, recurrent tinnitus warrants a maximum 10 percent rating. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006) (holding that 38 C.F.R. § 4.25 (b) and DC 6260 limit a Veteran to a single disability for tinnitus, regardless of whether the tinnitus is unilateral or bilateral). The Veteran has been granted service connection for tinnitus. A 10 percent disability evaluation has been assigned. In other words, his service-connected tinnitus disability has been assigned the maximum schedular rating available for the period on appeal. No higher schedular evaluation is warranted for tinnitus. The Board is sympathetic to the Veteran. However, to the extent that the VA's current rating schedule is limited in the compensation it provides for tinnitus, neither the Board nor the Court of Appeals for Veterans Claims itself has the power to change those requirements. See Wingard v. McDonald, 779 F.3d 1354, 1356 (Fed. Cir. 2015). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). REASONS FOR REMAND 5. Entitlement to service connection for macular degeneration with senile cataracts and dermatochalasis. 6. Entitlement to service connection for gout. A remand is warranted. The Veteran asserts that his eye disabilities are etiologically related to service, to include herbicide exposure therein. In the instant case, herbicide exposure is conceded. Per personnel records, the Veteran served on the USS Repose, a hospital ship, between February 1966-November 1966 (Vietnam era). Per deck logs, during this period, the vessel was anchored in Da Nang Harbor. Da Nang Harbor falls within 12 nautical miles from the coastline of the Republic of Vietnam. That said, as the Veteran had Vietnam era service on a vessel anchored within 12 nautical miles of Vietnam, it is conceded he was exposed to herbicide agents (including Agent Orange) during service. See Procopio v. Wilkie, 913 F.3d 1371, 1380-81 (Fed. Cir. 2019). That said, the Veteran's claimed disabilities are not any of the enumerated diseases associated with herbicide agent or AO exposure under 38 C.F.R. § 3.309 (e). As such, presumptive service connection based on herbicide agents/AO exposure is not warranted. Notwithstanding the foregoing presumptive provision, the Veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, F.3d 1039, 1042 (Fed. Cir. 1994). Therefore, what remains is ascertaining whether a direct nexus has been established. The Board finds that currently no such nexus has been established. Of record is a May 2021 opinion from an orthopedic surgeon, Dr. F. A., M.D. Dr. A. opined that the Veteran's conditions were due to in-service overuse/visual fatigue and/or exposure to herbicides. In rendering this determination, Dr A. failed to provide sufficient rationale. Here although Dr. A. discussed the impact of herbicide exposure generally there was no explanation of how the medical evidence, in the instant case, supported that the Veteran's conditions were due to exposure. Per the Court, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Such an explanation is not present, and therefore, the opinion is inadequate. Moreover, the Board finds the opinion inadequate as it fails to address the findings of a July 2018 VA examiner. The 2018 examiner opined that the Veteran's disabilities were due to age as records were negative for manifestation until decades post-service. Given the above omissions, Dr. A.'s opinion is insufficient to service as the basis for a grant of service connection. Nevertheless, the Board finds that Dr. A.'s opinion maintains enough probative value to warrant consideration by a VA examiner. Such consideration is warranted as no VA examiner has opined as to whether the Veteran's conditions are due to herbicide exposure. On remand, such an opinion must be obtained. As to the gout, a remand is also warranted to address the etiology of the Veteran's claimed condition. In May 2021, Dr. A. indicated there was a causative relationship between the Veteran's macular degeneration and his subsequent development of a metabolic disorder of hyperuricemia and gout. However, no rationale was provided. Id. Similarly, Dr. A. opined the Veteran's gout was etiologically related to AO exposure, but again provided no rationale. Here, rationale is particularly important as gout is not included in the list of diseases associated with presumptive service connection pursuant to 38 C.F.R. § 3.309; see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As previously stated, without adequate rationale, the opinion is insufficient to warrant service connection. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Nevertheless, as Dr. A.'s opinion is suggestive that service connection is warranted, a remand for VA opinion and examination is appropriate. 7. Entitlement to service connection for OSA. A remand is required. Dr. A. opined that the Veteran's OSA was etiologically related to prolonged severe noise exposure in-service. As rationale, Dr. A. essentially indicated that prolonged noise exposure in-service resulted in sleep disturbances that continue until the present. Problematically, Dr. A. did not explain how or why noise exposure, or sleep disturbance, caused or aggravated diagnosed OSA. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As a result, the opinion is inadequate as it lacks explanation correlating the Veteran's claimed condition to service. Moreover, the opinion is also insufficient as Dr. A. did not explain whether, the purported sleep disturbance condition is a disability separate and distinct from his OSA. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Notwithstanding the above, as Dr. A.'s opinion is suggestive that service-connection is warranted a remand for VA examination opinion is appropriate. 8. Entitlement to service connection for right hip arthritis. 9. Entitlement to service connection for left hip arthritis. 10. Entitlement to service connection for a left knee condition. 11. Entitlement to service connection for a right knee condition. 12. Entitlement to service connection for a disability of the spine. A remand is required. The Veteran asserts that his current disabilities are etiologically related to an in-service fall in Italy. In support of his contentions, he cites to a service treatment record in January 1965 noting a fall down a flight of stairs. He asserts this injury caused his current disabilities. In so doing, he acknowledges not reporting knee, hip, or spine symptomatology in-service but attests to experiencing pain, in each body part, since the fall. In May 2021, Dr. A. indicated that the Veteran's spine, knee, and hip conditions were related to his purported in-service injury. The Board finds the opinion is inadequate as no true rationale was provided. Instead, Dr. A. merely recited the Veteran's assertions that his conditions were etiologically due to his fall during service and then noted that in-service diagnosis/treatment was not required for service connection. Per the Court, this is insufficient, as the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See LeShore v. Brown, 8 Vet. App. 406 (1996). Moreover, the opinion is insufficient as Dr. A. provided no explanation why the specific features of the Veteran's current disabilities were indicative of being due to his purported in-service injury. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008). Given the above, a remand is warranted for clarifying opinions and examinations. Finally, Dr. A. indicated that the Veteran's spine condition was etiologically related to herbicide exposure. In so doing, Dr. A. again discussed the general impact of herbicides, but provided no explanation of how the medical evidence, in the instant case, supported that the Veteran's conditions were due to exposure. As discussed above, such is an insufficient rationale. Id. While on remand, an addendum opinion addressing this contention must be obtained. 13. Entitlement to a TDIU rating. The Veteran seeks a TDIU rating. In relevant part, he argues he is rendered unemployable by the combined impact of his currently service-connected disabilities and those disabilities pending appeal for service-connection. In support of his claim, has submitted a positive opinion by Dr. A. Per the Court, a claim for TDIU, either expressly raised by the appellant or reasonably raised by the record, is part of the claim for an increased rating (here, a part of the increase ratings claims for bilateral hearing loss and tinnitus). See Rice v. Shinseki, 22 Vet. App. 447 (2009). That said, the record is negative for a full accounting of the Veteran's employment history for the period on appeal. Therefore, a remand is appropriate to afford the Veteran the opportunity to submit such information and to receive notice as to how to support his claim. In addition, as the pending claims for service-connection can impact the Veteran's claim for TDIU the matter is remanded as inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran with appropriate notice as to how to support his claim for TDIU. 2. Ask the Veteran to fully complete a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) to allow VA to obtain relevant employment information. The purpose is to obtain a complete employment and education history of the Veteran for the period on appeal from November 2006, forward. The employment history should indicate whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. 3. Obtain an addendum opinion as to the nature and etiology of the Veteran's claimed eye disabilities. Additional examination is left up to the discretion of the examiner. Following consideration of the record, to include this Remand, and examination the examiner must: (a.) Identify all diagnosed eye disabilities present during the appeal. (b.) Opine whether any eye disabilities diagnosed during the period on appeal, are at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service injuries, and exposure to Agent Orange. (c.) Any opinion rendered must be explicitly juxtaposed against the May 2021 findings of orthopedic surgeon, Dr. F. A., M.D. (d.) The examiner must address the Veteran's August 2021 Appellate Brief, the assertions made therein, and any associated exhibits. The examiner must specifically address the relevance, if any, of the lay statements/hearing testimony of record. 4. Obtain a VA examination as to the nature and etiology of the Veteran's claimed gout. Following consideration of the record, to include this Remand, and examination the examiner must: (a.) Identify all diagnosed gout disabilities present during the appeal. (b.) Opine whether any gout disability diagnosed during the period on appeal, is at least as likely as not (at least a 50 percent probability) related to service, to include herbicide exposure, or whether it manifested within a year of service separation. (c.) If, positive opinion is obtained for the Veteran's eye disabilities, the examiner should opine whether any diagnosed gout disability is at least as likely as not (1) proximately due to these service-connected eye disabilities; or (2) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected eye disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (d.) Any opinion rendered must be explicitly juxtaposed against the May 2021 findings of orthopedic surgeon, Dr. F. A., M.D. (e.) The examiner must address the Veteran's August 2021 Appellate Brief, the assertions made therein, and any associated exhibits. The examiner must specifically address the relevance, if any, of the lay statements/hearing testimony supporting the Veteran's claim. 5. Obtain VA examinations and opinions as to the nature and etiology of the Veteran's claimed OSA. Following consideration of the record, to include this Remand, and examination the examiner must: (a.) Identify all diagnosis of sleep disabilities, to include OSA and "sleep disturbance" during the period on appeal. (b.) Opine whether any sleep disabilities diagnosed during the period on appeal, are at least as likely as not (at least a 50 percent probability) related to service, and exposure to Agent Orange. (c.) If, positive opinion is obtained for the Veteran's purported sleep disturbance disability, the examiner should opine whether any diagnosed OSA disability is at least as likely as not (1) proximately due to the service-connected sleep disturbance disability; or (2) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected sleep disturbance disability. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (d.) Any opinion rendered must be explicitly juxtaposed against the May 2021 findings of orthopedic surgeon, Dr. F. A., M.D. (e.) The examiner must address the Veteran's August 2021 Appellate Brief, the assertions made therein, and any associated exhibits. The examiner must specifically address the relevance, if any, of the lay statements/hearing testimony supporting his claim. 6. Obtain VA examinations and opinions as to the nature and etiology of the Veteran's claimed right and left knee and hip disabilities. Following consideration of the record, to include this Remand, and examination the examiner must: (a.) Identify all diagnosed right and left knee and hip disabilities present during the appeal. (b.) Opine whether any right and left knee and hip disabilities diagnosed during the period on appeal, to include arthritis, are at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service injuries, and exposure to Agent Orange. (c.) Any opinion rendered must be explicitly juxtaposed against the May 2021 findings of orthopedic surgeon, Dr. F. A., M.D. (d.) The examiner must address the Veteran's August 2021 Appellate Brief, the assertions made therein, and any associated exhibits. The examiner must specifically address the relevance, if any, of the lay statements/hearing testimony supporting his claim, to include continuity of symptomatology. 7. Obtain an addendum opinion as to the nature and etiology of the Veteran's claimed lumbar spine disability. Additional examination is left up to the discretion of the examiner. Following consideration of the record, to include this Remand, and examination the examiner must: (a.) Identify all diagnosed low back disabilities present during the appeal. (b.) Opine whether any low back disabilities diagnosed during the period on appeal, to include arthritis, are at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service injuries, and exposure to Agent Orange. (c.) Any opinion rendered must be explicitly juxtaposed against the May 2021 findings of orthopedic surgeon, Dr. F. A., M.D. (d.) The examiner must address the Veteran's August 2021 Appellate Brief, the assertions made therein, and any associated exhibits. The examiner must specifically address the relevance, if any, of the lay statements/hearing testimony supporting continuity of symptomatology following in-service back injury. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.