Citation Nr: 21008383 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 10-42 018 DATE: February 16, 2021 ORDER Entitlement to service connection for bilateral lower extremity radiculopathy is denied. REMANDED Entitlement to a noninitial disability rating in excess of 40 percent for the Veteran’s service-connected lumbar myositis is remanded. Entitlement to service connection for an acquired psychiatric disorder, including depression and anxiety, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The most probative evidence of record establishes that the Veteran’s current bilateral lower extremity radiculopathy is not proximately due to, the result of, or aggravated by the Veteran’s service-connected lumbar myositis. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1973 to September 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from February 2009, April 2009, April 2011, and September 2012 rating decisions issued by the United States Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Veteran previously requested a hearing before a Veterans Law Judge but later withdrew his request in correspondence received in January 2017. The undersigned Veterans Law Judge has been assigned to consider these matters pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). The Veteran’s attorney submitted a Privacy Act request seeking all documents in the Veteran’s electronic claims file from September 1, 2017 to the present. See e.g. 11/13/20 letter. VA responded in January 2021 with the requested documents. Accordingly, the Board may proceed with its appellate consideration. In November 2020, the Veteran’s attorney requested an extension of time until January 22, 2021 to submit additional argument/evidence. This extension request is now moot, as January 22, 2021 has passed. The attorney has requested no further time extensions; and in the absence of such, the Board may proceed with its appellate consideration. As to the matter adjudicated below, neither the Veteran nor his attorney has raised any issues with VA’s duty to notify or VA’s duty to assist in obtaining private/VA medical records or VA examinations. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In November 2014, the Veteran’s attorney requested that the Board exercise its authority under 38 C.F.R. § 20.906(a) (formerly 20.901(a)) and obtain a medical opinion from a health care professional in the Veterans Health Administration (VHA). Following a review of the medical evidence, a VHA medical opinion is not necessary for equitable disposition of the appeal. The Veteran has not explained why he believes his claim is so medically complex or controversial as to require a VHA opinion; and the Board finds that the appeal may be adequately resolved with the VA examinations and medical opinions already of record. As such, the Board declines to exercise its authority to request a VHA opinion in this matter. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. 1. Entitlement to service connection for bilateral lower extremity radiculopathy is denied. The Veteran seeks entitlement to service connection for bilateral lower extremity radiculopathy as secondary to his service-connected lumbar myositis under 38 C.F.R. § 3.310. As the Veteran has only raised entitlement to service connection under a secondary service connection theory of entitlement, and no other theory of entitlement is alleged by the Veteran or raised by the evidence of record, the Board shall limit its review of this claim solely under a secondary service connection theory of entitlement. See Robinson v. Mansfield, 21 Vet. App. 545, 552-56 (2008) (concluding “that the Board is not required sua sponte to raise and reject ‘all possible’ theories of entitlement in order to render a valid opinion” and “commits error only in failing to discuss a theory of entitlement that was raised either by the appellant or by the evidence of record”), aff’d sub nom. Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (stating that “[w]here a fully developed record is presented to the Board with no evidentiary support for a particular theory of recovery, there is no reason for the Board to address or consider such a theory.”). Service connection may be considered on a secondary basis pursuant to 38 C.F.R. § 3.310. The evidence must demonstrate an etiological relationship between a service-connected disability or disabilities and the condition said to be proximately due to or the result of the service-connected disability or disabilities. See Buckley v. West, 12 Vet. App. 76, 84 (1998). Secondary service connection may also be warranted for a nonservice-connected disability when that disability is aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); see also Ward v. Wilkie, 31 Vet. App. 233 (2019). The presence of a current disability within the appellate period is not in dispute. Electromyography testing conducted in December 2008 confirmed the presence of bilateral lower extremity radiculopathy. Additionally, this disability has been objectively observed at several VA examinations during the appellate period. The Veteran submitted a May 2009 private opinion from Dr. LEFD opining that the Veteran’s bilateral lower extremity radiculopathy was directly related to his service-connected lumbar myositis. This medical opinion was conclusory and unaccompanied by an explanatory rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). As such, it is entitled to no probative value in this determination. In August 2012, the Veteran’s bilateral lower extremity radiculopathy was confirmed at a VA examination, and the VA examiner opined that this disability was not related to the Veteran’s service-connected lumbar myositis. The VA examiner stated that medical evidence does not support a causal relationship between lumbar myositis and lumbar radiculopathy. The VA examiner did not provide an opinion on whether lumbar myositis may aggravate lumbar radiculopathy. At an April 2013 VA examination, the VA examiner explained that the Veteran’s service-connected lumbar myositis did not cause the Veteran’s lumbar spondylosis. The VA examiner further stated that the Veteran’s bilateral lower extremity radiculopathy was more likely than not related to the Veteran’s lumbar spondylosis than his service-connected lumbar myositis. The VA examiner did not provide an opinion on whether lumbar myositis may aggravate lumbar radiculopathy. Much like the May 2009 private opinion, the opinions authored by the August 2012 and April 2013 VA examiners regarding the etiology of the Veteran’s bilateral lower extremity radiculopathy are wholly conclusory and unsupported by a reasoned explanatory rationale. Nieves-Rodriguez, supra. Additionally, the August 2012 and April 2013 VA examiners did not opine on whether the Veteran’s bilateral lower extremity radiculopathy was aggravated by his service-connected lumbar myositis, as required by 38 C.F.R. § 3.310. As such, these VA medical opinions are not probative in this appeal. At a June 2017 VA examination, a VA examiner stated that the Veteran’s signs and symptoms could not be separated from the Veteran’s service-connected lumbar myositis and his nonservice-connected lumbar spondylosis with bilateral lumbar radiculopathy, without resulting to mere speculation. In the November 2018 remand decision, the Board has already determined this VA medical opinion to be inadequate for adjudicative purposes. The Veteran has submitted a private opinion authored by SDP in August 2018 regarding the etiology of his bilateral lower extremity radiculopathy. As noted in the November 2018 Board remand, the opinion is signed by SDP., “Doctor in Medicine, CMC, MSAS –Venezuela.” SDP provided a U.S. residential address and phone number but no business contact information or more detailed information concerning her education, experience, and credentials. This lack of information called into question SDP’s credibility as a medical expert, as it is not clear whether she is actually licensed to practice medicine or otherwise possesses the level of education, training, and experience necessary to render an opinion on the Veteran’s radiculopathy. See Sklar v. Brown, 5 Vet. App. 140, 146 (1993) (professional credentials and experience of opinion providers are properly considered in assigning probative value). The Board determined that the evidentiary issues identified above rendered SDP’s medical opinion insufficient to support an award of service connection. Since the November 2018 remand decision, neither the Veteran nor his attorney has provided any additional information regarding SDP’s education, training, or expertise. Thus, the Board’s November 2018 determination regarding the probative value of SDP’s opinion remains valid. Notwithstanding the above, the substance of SDP’s report is not sufficient to resolve the appeal in the Veteran’s favor. In the report, SDP defined medical concepts such as facet joint pain, sciatic pain, and muscular pain, and then jumped to the conclusion that the Veteran’s lumbar myositis was a misdiagnosis, and that the Veteran’s lumbar spondylosis (facet arthropathy) and radiculopathy were the result of his in-service low back injury. It is well-established in the record that the Veteran’s bilateral lower extremity radiculopathy is due to nonservice-connected lumbar spondylosis. SDP’s opinion attempted to conflate the Veteran’s service-connected lumbar myositis with his nonservice-connected lumbar spondylitis, without any meaningful explanation for this conclusion. SDP never explained why the Veteran did not have coexistent diagnoses of lumbar myositis and lumbar spondylosis or facet arthropathy, or why the Veteran’s lumbar myositis was a misdiagnosis. Contrary to SDP’s opinion, numerous VA examiners have confirmed the presence of simultaneous lumbar spondylosis and lumbar myositis during the appellate period. See e.g. May 2010, April 2013, June 2017 VA examinations. Moreover, the Board notes that the Veteran was denied entitlement to service connection for lumbar spondylosis in an April 2013 rating decision, which has become final. Since then, the Veteran has not filed any informal claims prior to March 24, 2015, or any formal claims, thereafter, seeking service connection for lumbar spondylosis. If the Veteran wishes to reopen this previously disallowed claim, he may do so through the filing of a supplemental claim supported by new and relevant evidence. Additionally, SDP’s report simply described medical concepts, and then reached a generalized conclusion, without linking the concepts to the Veteran’s specific medical circumstances. See Mattern v. West, 12 Vet. App. 222, 228 (1999). For example, SDP never cited to specific evidence in the record indicating that the espoused medical concepts regarding facet joint pain and radiculopathy applied to the Veteran’s specific medical circumstances. As noted by the January 2019 VA examiner, SDP completely disregarded the large temporal gap between the Veteran’s separation from service and his development of lumbar spondylosis, more than 30 years later. Compare April 2006 lumbar spine radiograph (showing vertebral bodies, disc spaces, and posterior elements relatively well preserved) to March 2010 lumbar spine radiograph (small anterior marginal spurs are seen from L3 to L5, minimal lumbar spondylosis). For the above reasons, the Board does not find the August 2018 report from SDP to be probative in this determination. SDP has not been proven to be a competent medical source, her report merely described general concepts, and her opinions were not supported by explanatory rationale linking the stated general concepts to the Veteran’s particular medical history. The Veteran’s bilateral lower extremity radiculopathy was assessed at a final VA examination in January 2019. The VA examiner explained that the Veteran’s bilateral lower extremity radiculopathy was not proximately due to, the result of, or aggravated by the Veteran’s service-connected lumbar myositis. In pertinent part, the VA examiner explained: Lumbar myositis has not caused any radiculopathies. Lumbar myositis is an injury located in paravertebral muscles and not in the structures that could cause any radicular damage or impingements (muscles do not cause nerve impingements). Actual radicular damage has been caused by [the Veteran’s] lumbar facet joint disease and spondylosis, which is a different lesion, not related to paravertebral muscles, but to osseus structures in the spine. The myositis for which [the Veteran] is actually service related has nothing to do with osseus structures affected (by the aging process) which have caused actual nerve damage due to impingement in nerve roots areas (and hence actual radiculopathies). The VA examiner further explained that due to these anatomical differences, lumbar myositis and lumbar spondylosis are entirely unrelated in terms of pathophysiology and biomechanics, and thus, lumbar myositis does not aggravate bilateral lower extremity radiculopathy, or vice versa. The Board finds the January 2019 VA examiner’s medical opinion to be the most probative evidence of record regarding the etiology of the Veteran’s bilateral lower extremity radiculopathy. The medical opinion substantially complied with the Board’s November 2018 remand directives, and provided a fully articulated and explanatory rationale addressing both the proximate cause and aggravation elements of a secondary service connection claim. The VA examiner explained that the Veteran had simultaneous diagnoses of lumbar myositis and lumbar spondylosis, which are distinct conditions. The Veteran’s lumbar myositis was an injury to the paravertebral muscles, which anatomically did not result in nerve impingement, whereas the Veteran’s lumbar spondylosis was an age-related degeneration of the osseous structures which impinged the nerve roots. Given these anatomical differences, no causal or aggravating relationship existed between the Veteran’s service-connected lumbar myositis and his bilateral lower extremity radiculopathy, which was being caused by his nonservice-connected lumbar spondylosis. The VA examiner fully supported his opinion with a thorough explanation supported by established medical principles applied to the Veteran’s specific medical circumstances. To the extent that other VA examinations of record, not discussed supra, described radicular symptoms due to a low back disability, the VA examiners did not address or distinguish whether these symptoms were due to Veteran’s service-connected lumbar myositis and his nonservice-connected lumbar spondylosis. See e.g. February 2007, October 2008, May 2010 VA examinations. Accordingly, these VA examinations are of little probative value in this appeal. The Board has considered the lay statements submitted by the Veteran and his family/friends in support of his appeal. The statements submitted by family/friend discuss their perceptions of his disability and are irrelevant to the issue of medical nexus. To the extent that the Veteran has argued that his bilateral lower extremity radiculopathy is due to his service-connected lumbar myositis, as a lay person without medical training or expertise, he is not competent to opine on complex medical matters, such as the etiology of neurological conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, the Veteran’s lay statements are not probative in this determination. In sum, the most probative evidence in this appeal is the medical opinion of the January 2019 VA examiner, who opined that the Veteran’s bilateral lower extremity radiculopathy was not proximately due to, the result of, or aggravated by his service-connected lumbar myositis. As the principles of secondary service connection have not been established, the Veteran’s claim seeking service connection bilateral lower extremity radiculopathy is denied. REASONS FOR REMAND Although the Board regrets the additional delay, the below referenced claims must be remanded for corrective evidentiary development to ensure that the Veteran’s due process rights have been maintained and that the record is substantially complete to allow for a fair and equitable adjudication of the claims. 1. Entitlement to a noninitial disability rating in excess of 40 percent for the Veteran’s service-connected lumbar myositis is remanded. In November 2018, the Board remanded this claim for an updated VA examination, where the VA examiner was specifically directed to estimate the functional loss during the Veteran’s reported flare-ups of low back pain, and to conduct range of motion testing in passive motion and during non-weightbearing. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board also requested the VA examiner to comment on the impact of the Veteran’s lumbar spine disability on his ability to perform daily activities and identify any motion or activities that would be restricted and to what degree. A VA examination was conducted in January 2019; however it did not comply with the Board’s November 2018 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA examiner indicated that the Veteran reported flare-ups of thoracolumbar spine occurring “daily” and “lasting hours,” however he did not document the functional impact of these flare-ups on the Veteran’s activity. Generally—outside of flare-ups—the VA examiner stated that the Veteran’s service-connected low back disability resulted in standing tolerance and loss of ambulation. The VA examiner stated that “pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time,” but he declined to express this limitation in terms of additional range of motion loss because the examination was not conducted during a flare-up or following repetitive use, and thus, any opinion would be speculative. When an examiner states that he or she cannot offer a flare opinion without resort to speculation, that opinion is adequate only when it is “clear that [it] is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In the present matter, the VA examiner’s explanation does not comport with Sharp, as he merely refused to opine on additional functional loss during flare-ups because the VA examination was not conducted during a flare-up and not due to a lack of knowledge among the medical community at large. For an examination not conducted during a flare-up to comply with 38 C.F.R. § 4.40, the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veteran[],” and “offer [a] flare opinion[] based on [an] estimate[] derived from information procured from relevant sources, including the lay statements of [the] Veteran[].” Sharp, 29 Vet. App. at 34-35. Additionally, the VA examiner did not conduct range of motion testing during passive motion or non-weightbearing, as requested, and he did not opine on any limitations in activities of daily living caused by the Veteran’s service-connected lumbar myositis. Accordingly, the claim must be remanded for corrective action. To achieve a higher rating, the evidence must establish that the Veteran’s service-connected lumbar myositis results in unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). To date, the Veteran has never alleged that his service-lumbar myositis resulted in any of the above functional impairments, even during a flare-up. However, the range of motion findings documented at the January 2019 VA examination are severe—limited to 5 or 10 degrees in each movement tested—and thus, it is not unreasonable to assume that ankylosis (favorable or unfavorable) may occur during flare-ups or following repetitive use over time. Thus, the VA examiner shall be requested to opine whether the Veteran experiences unfavorable ankylosis during flare-ups or following repetitive use over time, in addition to any of the functional limitations listed in 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). 2. Entitlement to service connection for an acquired psychiatric disorder, including depression and anxiety, is remanded. In the November 2018 remand decision, the Board explained that the June 2017 VA examination and the August 2018 private opinion were insufficient to resolve the Veteran’s appeal. Accordingly, the Board remanded the matter for a new VA examination and medical opinion addressing whether the Veteran’s current acquired psychiatric disability was incurred in service or was otherwise proximately due to or aggravated by his service-connected lumbar myositis. The Board requested that the VA examiner address the May 2009 and August 2018 private opinions, as well as the buddy statements submitted in the Veteran’s attorney’s September 2018 correspondence. The Veteran was afforded a new VA psychological examination in January 2019. The VA examiner diagnosed the Veteran with unspecified depressive disorder. The VA examiner stated that the Veteran’s acquired psychiatric disability was not incurred during his active duty service. The VA examiner stated that the Veteran did not begin formal psychiatric treatment until 2007, out of fear for a heart surgery. She noted a gap of nearly 32 years between separation from service and the Veteran’s 2007 psychiatric treatment and stated that this was too large of a temporal gap to support a positive nexus. However, the VA examiner failed to acknowledge the Veteran’s psychiatric treatment in 1979 and the early 1980s; within 5 years of his separation from active duty service. As the VA examiner’s medical opinion was based on an inaccurate factual premise, it is entitled to minimal probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The VA examiner’s opinion addressing secondary service connection between the Veteran’s acquired psychiatric disability and his service-connected lumbar myositis is similarly insufficient for adjudicative purposes. The VA stated that the two conditions were of different etiology and pathophysiology, and affected different anatomical systems, and she further denied an aggravating relationship, arguing that the Veteran’s depressive disorder has followed the same clinical pattern as those without an underlying low back disability. This medical opinion was wholly conclusory, and was not supported by a reasoned explanation based on established medical principles and the Veteran’s specific medical circumstances; thus, depriving it of probative value in this appeal. See Stefl, 21 Vet. App. at 125. Moreover, while the VA examiner stated that she reviewed the May 2009 and August 2018 private opinions, as well as the buddy statements received in September 2018, she did not address them in her opinions, as explicitly requested by the Board. Stegall, supra. Given the evidentiary issues identified above, the Board does not find the January 2019 VA medical opinions to be sufficient to resolve the Veteran’s appeal, and the claim must be remanded for an addendum VA medical opinion that satisfactorily addresses the direct and secondary service connection theories raised by the Veteran. 3. Entitlement to a TDIU is remanded. To date, the Veteran does not satisfy the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16(a). As stated above, the claims seeking a noninitial rating in excess of 40 percent for the Veteran’s service-connected lumbar myositis and entitlement to service connection for an acquired psychiatric disability are being remanded for further evidentiary development; and the outcome of these claims may impact eligibility for TDIU on a schedular basis. Accordingly, the Veteran’s claim of entitlement to a TDIU shall be remanded as inextricably intertwined with these other claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991) (claims “are inextricably linked together” where a favorable decision on one “could have a significant impact” on the other). Additionally, as the record stands, there is little information regarding the Veteran’s occupational history and educational history since his separation from active duty service. In May 2017, the Veteran was provided notice of the evidence needed to substantiate his TDIU claim, and the Veteran was requested to complete a VA form 21-8940, Application for Increased Compensation Based on Unemployability. The Veteran did not respond with the completed information. Upon remand, the RO is requested to contact the Veteran and solicit a completed VA form 21-8940 for the final time. The Veteran is reminded that VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). For all employers identified in the completed VA form 21-8940, the RO must undertake reasonable efforts to secure a completed VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he complete a VA form 21-8940, Application for Increased Compensation Based on Unemployability. For all employers identified in the VA form 21-8940, undertake reasonable efforts to obtain a completed VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. Thereafter, the RO should conduct any additional evidentiary development deemed necessary regarding the Veteran’s claim of entitlement to a TDIU. 2. Schedule the Veteran for a VA examination to assess the nature and severity of his service-connected lumbar myositis. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Range of motion findings for active and passive motion should be recorded separately, even if they are the same, and the point at which painful motion begins should be clearly stated. A goniometer should be used for all range of motion testing. Elicit information from the Veteran regarding any functional loss during flare-ups or with repeated use and opine as to whether functional ability would be additionally impacted after repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment in terms of degree of additional range of motion loss. If, after attempting to estimate additional loss of motion, an opinion cannot be rendered without resorting to speculation, the examiner must explain whether this is the result of a lack of knowledge among the medical community at large or due to any other reason. The examiner should also opine as to the impact of the Veteran’s service-connected lumbar myositis on the Veteran’s daily activities and identify any motion or activities that would be restricted and the degree to which that would occur. The VA examiner is requested to specifically opine on whether the Veteran’s service-connected lumbar myositis is manifested by unfavorable ankylosis of the entire thoracolumbar spine or entire spine, to include during flare-ups or following repeated use. If so, does the unfavorable ankylosis result in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching? 3. Obtain an addendum VA medical opinion from a qualified VA examiner regarding the etiology of the Veteran’s current acquired psychiatric disability. The VA examiner is remined that a current disability covers any diagnosis rendered during the pendency of a claim. In this case, the Veteran’s acquired psychiatric disability has been variably diagnosed over the appellate period as severe major depression and anxiety disorder (May 2009 private opinion); chronic paranoid schizophrenia, episodic with inter-episode residual symptoms, rule out schizoaffective disorder, depressed type, rule out mood disorder, depressed, due to organic conditions (November 2010 private opinion); major depressive disorder, recurrent, moderate, rule out panic disorder (February 2011 VA treatment record); depressive disorder, not otherwise specified (April 2011 VA examination); major depressive disorder, rule out anxiety disorder (July 2012 VA treatment record); major depression (June 2017 VA examination); and unspecified depressive disorder (January 2019 VA examination). Following a complete review of the electronic claims file, including a copy of this REMAND, the VA examiner is requested to address the following inquiries: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current acquired psychiatric disability was incurred in or is otherwise etiologically related to his active duty service? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current acquired psychiatric disability is proximately due to, the result of, or aggravated by his service-connected lumbar myositis? The VA examiner is reminded of the recent precedential decision by the United States Court of Appeal for Veterans Claims in Ward, 31 Vet. App. at 239, which held that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent worsening” of the nonservice-connected disability. Instead, secondary service connection is warranted for “any incremental increase in disability—any additional impairment of earning capacity—in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase—regardless of its permanence.” See id. In answering the above questions, the VA examiner is specifically requested to consider and address the May 2009 and August 2018 private opinions, as well as lay and buddy statements included with the Veteran’s attorney’s September 2018 correspondence. The VA examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical experience, medical expertise, established medical principles, and references to the evidence of record, as appropriate. 4. THEN, readjudicate the claims on appeal. TDIU must be adjudicated subsequent to all other claims. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case must be provided to the Veteran and his attorney. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.