Citation Nr: 21013242 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-09 213 DATE: March 9, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to an initial 70 percent evaluation, but no higher, for service-connected depression is granted. REMANDED Entitlement to service connection for neck disorder, to include secondary to service- connected depression, is remanded. Entitlement to service connection for an upper back disorder, to include secondary to service- connected depression, is remanded. Entitlement to service connection for a low back disorder, to include secondary to service- connected depression, is remanded. FINDINGS OF FACT 1. The Veteran does not have bilateral hearing loss for VA purposes. 2. Throughout the period on appeal, the Veteran’s depression has been characterized by occupational and social impairment with deficiencies in most areas but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria for entitlement to an initial 70 percent evaluation, but no higher, for service-connected depression have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130 Diagnostic Code (DC) 9499-9434 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Marines from September 1975 to September 1979. This case comes before the Board of Veterans’ Appeals (Board) on appeal from May 2014 and July 2015 rating decisions of the Department of Veteran Affairs (VA) Regional Office (RO) in Portland, Oregon. In October 2018 the Veteran presented testimony at a travel Board hearing before the undersigned Veterans Law Judge (VLJ). Duties to Notify and Assist Neither the Veteran nor his attorney has raised any issues with the duty to notify or duty to assist. 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”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board finds that there has been substantial compliance with the prior April 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for bilateral hearing loss was remanded for an additional VA examination. Increased evaluation for service-connected depression was remanded for a current VA examination. The Veteran received a new VA hearing loss examination in December 2019. The Board notes the April 2019 remand directives indicated a nexus opinion was not requested for bilateral hearing loss because there was an adequate positive opinion of record. The April 2019 remand was solely to determine if the Veteran had hearing impairment for VA purposes. The Veteran received a new VA mental health examination in January 2020. Accordingly, the Board will proceed with appellate review. Service Connection- Bilateral Hearing loss Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2020). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2020). In addition, service connection for certain chronic diseases, including sensorineural hearing loss, may be established on a presumptive basis by showing that the condition 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, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a) (2020); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during 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 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran alleges that bilateral hearing loss is related to in-service noise exposure. During the October 2018 Board hearing the Veteran explained he experienced hazardous noise in-service. The Board finds that there is no bilateral hearing loss. Generally, for VA purposes, impaired hearing is a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385 (2020). The threshold for normal hearing is from 0 to 20 decibels and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The Veteran received VA audiological examinations in April 2014 and December 2019. On the VA audiological evaluation in April 2014, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 15 20 15 25 LEFT 20 20 25 35 30 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 in the left ear. On the VA audiological evaluation in December 2019, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 20 20 25 LEFT 10 20 25 30 35 Speech audiometry revealed speech recognition ability of 100 percent in the right ear and of 100 in the left ear. The Board notes right ear auditory threshold at frequency 4000 hertz was 25 decibels during both VA examinations. The Veteran’s left ear auditory threshold at frequency 2000, 3000, and 4000 hertz was higher than 20 decibels at both examinations. However, neither examination showed auditory thresholds at 40 decibels or greater or three frequencies 26 decibels or greater. Additionally, the Veteran’s speech recognition scores were 100 percent. An April 2016 VA treatment record noted bilateral word recognition at 55 decibels. However, it is unclear what type of testing was used. Speech recognition scores must use Maryland CNC test. See 38 C.F.R. § 3.385 (2020). Thus, the evidence does not show that the Veteran has a hearing loss disability for VA purposes. See 38 C.F.R. § 3.385. Although the Veteran stated that he has bilateral hearing loss, his statements are not competent to establish the existence of a hearing loss disability for VA purposes, which requires audiometric testing and particular results, as opposed to observing symptoms of diminished hearing. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). In reaching this decision 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). Increased Evaluation- Depression Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2020). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2020). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2020). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Veteran’s service-connected depression is rated under 38 C.F.R. § 4.130, DC 9499-9434. Under the General Rating Formula for Mental Disorders, the Veteran’s current 50 percent evaluation contemplates occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for a mental disorder when there is total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9411. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. A July 2015 rating decision granted service connection for depression evaluated at 50 percent. In a July 2015 notice of disagreement (NOD), the Veteran asserted a 70 percent evaluation was warranted. An October 2020 rating decision granted a 70 percent evaluation, effective October 24, 2018. The Board finds throughout the period on appeal, the Veteran’s depression has been characterized by occupational and social impairment with deficiencies in most areas. Private treatment records, VA treatment records, VA examinations, and the Veteran’s lay statements support a 70 percent evaluation for the entire period on appeal. The Veteran received a July 2015 VA mental health examination. The examiner diagnosed depression and noted dysphoric mood, anhedonia, fatigue, low concentration, unchanging appetite, feels helpless, hopeless, worthless, and no suicidal ideation. The examiner assessed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran endorsed irritability and anger at work. The Veteran noted he was self-employed and has been running a store for 19 years. The Veteran noted irritation with employees over small issues daily and larger problems two to three times per week. The examiner noted symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work and worklike setting. The examiner observed normal thought process, no suicidal ideation, and average concentration and memory. During the October 2018 Board hearing the Veteran endorsed worsening symptoms. The Veteran noted that when situations arise at work that are stressful he must leave the shop and let his wife handle the situation. The Veteran received private mental health treatment in December 2018. The private provider went over the Veteran’s mental health history. The Veteran reported a problem about four years prior and noted his depression steadily increased. The Veteran’s wife endorsed increased depressive symptoms and more drinking over the past five years. The Veteran’s spouse described him as mentally scattered and distractible. The Veteran’s spouse noted she has taken over more and more responsibility in the store and at home due to her husband’s decline. The Veteran reported the depressive symptoms started about five years ago. The Veteran stated he began taking more time off, avoiding people, having trouble multitasking, increased frustration, and a sense of hopelessness. The private provider noted symptoms of suicidal ideation, sense of hopelessness, stress, and low self- esteem. The Veteran denied social phobia, panic attacks, manic episodes, psychotic symptoms, or suicide attempts. The private provider assessed persistent and significant depressive symptomatology over the past five years, including: sleep impairment, occasional suicidal ideation, crying spells, lowered libido, mental dullness, memory impairments, and difficulty multitasking. The Veteran noted he works regularly and during the busy season he works in his store 7 days a week for 10 hours a day. The Veteran indicated he was looking to sell his store. The provider noted the symptoms affect the Veteran’s daily life in significant and problematic ways. The Veteran began VA mental health treatment in December 2018. The Veteran reported mental health treatment over ten years ago and stated he went for a couple of years. The Veteran reported symptoms of depression, anxiety, uncontrollable anger and an inability to tolerate crowds. The Veteran denied insomnia, nightmares, flashbacks, hallucinations, homicidal or suicidal ideation. The Veteran returned for mental health treatment in February 2019. The VA treatment provider noted positive mood, appropriate affect, cooperative, and good insight and judgment. During March 2019 VA treatment, the Veteran endorsed difficulties with mood, irritability, depression, sleep, low motivation, and low frustration tolerance. The Veteran reported a happy marriage and good relationship with both his daughters. The Veteran noted he was acquainted with most people in his community and maintains a handful of good friends with his wife. The provider noted the Veteran’s lifestyle was limited to work where he used to enjoy other activities but does “nothing now.” The provider observed positive mood, good affect, thought process linear and goal directed, denied delusions, and denied suicidal or homicidal ideation. The Veteran began group therapy in March 2019. The group mental health treatment noted it did not provide individual assessment but indicated what the group discussed. The Veteran returned to individual VA mental health treatment in April 2019. During treatment the Veteran reported he and his wife were considering selling their business. There were no changes to the Veteran’s mental status. The Veteran continued with VA group therapy sessions in April 2019. In May 2019 VA treatment, the Veteran endorsed getting frustrated at times. The Veteran noted it was usually when he was busy and interrupted by something else. The Veteran noted he was attempting to use the skills learned in group therapy. The Veteran noted work was ramping up for the tourist season. The VA treatment provider did not note any mental status changes. The Veteran attended several VA group therapy sessions in May 2019. In June 2019 VA treatment, the Veteran reported no new stressors. The VA treatment provider noted a positive mood and the Veteran indicated an opportunity for his store to be included in a travel article for a major publication. The Veteran discussed recently completing the cognitive skills class. The VA treatment provider noted the Veteran became tearful when talking about his fears related to his cognitive struggles. During July 2019 VA treatment, the Veteran expressed relief with having competent staff on board to help with his store over the holidays. The Veteran stated he would be taking some vacation time with his wife. The VA treatment provider indicated no overt cognitive difficulty and no changes to the Veteran’s mental status. In August 2019 VA treatment, the Veteran, stated his store had a “banner year.” The Veteran noted that having good help was helpful for his irritability because he is able to focus on managing and has more time to chat with customers versus feeling pressured to multitask constantly. The Veteran noted he and his wife were reconsidering whether they would sell the store. The VA treatment provider reviewed the homework with the Veteran and explained treatment plan. The VA treatment provider did not note any changes to the Veteran’s mental status. In September 2019, the Veteran reported no new stressors and indicated he was doing quite well. The Veteran noted the store was closing for the winter season and had planned some trips with his wife and friends during that time. The VA treatment provider discussed cognitive distortions and encouraged the Veteran to work on maintaining vigilance in the areas of bias by setting reminders on his phone or using index cards. During October 2019 VA treatment, the Veteran reported he was busy closing out his store. The Veteran indicated plans to visit friends, in Montana, and Hawaii. The VA treatment provider proceeded with a formal introduction into mindfulness concepts and discussed the effectiveness of the Veteran’s past attempts at controlling unhelpful thoughts or feelings. The VA treatment provider recommended text on mindfulness and mindfulness-based strategies for dealing with difficult internal experiences. The Veteran retuned to VA mental health treatment in January 2020. The Veteran reported a good past few month. The Veteran noted he visited friends in Montana and spent time with his wife in Hawaii. The Veteran stated he remains anxious and agitated even though life is not as hectic in the summer. The Veteran received a January 2020 VA examination. The VA examiner assessed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported to cope with irritability he leaves the store and goes for long walks which subsequently, causes extra work for his wife and employees. The Veteran indicated the walks can last from 2-3 hours. The Veteran endorsed suicidal ideation but denied intent or plan and indicated his family was a reason for living. The examiner indicated symptoms of: depressed mood, anxiety, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. The examiner observed the Veteran arrived early, alert, well groomed, and intermittently tearful. During February 2020 VA treatment the Veteran stated he continues to do well. The Veteran noted he was recruiting for the upcoming season, was excited to have some excellent staff returning, and considering how to reorganize to give himself more free time. The VA treatment provider noted a stable and positive mood with appropriate affect. In March 2020 VA treatment, the Veteran expressed concerns about pandemic and social distances measures required for business. The Veteran also expressed concerns regarding the virus impact on his family. The Veteran noted his son-in-law was a nurse. The treatment was held via phone. In May 2020 VA treatment, the Veteran indicated he was continuing to do well. The Veteran stated he was concerned about how the pandemic would affect his store business, but he noted business was better than normal. The VA treatment provider discussed the Veteran’s progress since beginning therapy and reminding the Veteran of his improvements in areas of acceptance and self-compassion. The VA treatment provider noted the Veteran actively participated in the session. The Veteran’s treatment continued via telephone call in June 2020. The Veteran reported his business was doing well but indicated significant anxiety over making a mistake. The Veteran indicated his anxiety builds during his morning routine. The VA treatment provider suggested variation of routine, deep breathing, and breaks. The VA treatment provider indicated a need to work on mindfulness skills. In August 2020, the Veteran reported his store was much busier this summer than in past years and noted that has been a challenge. The Veteran reported instances of memory lapses, attention lapses, and more problems with mood. The VA treatment provider spoke with the Veteran’s wife, who expressed concern regarding cognitive functioning. The VA treatment provider indicated the cognitive struggles may be secondary to anxiety. The VA treatment provider noted objective findings were not formally assessed but indicated no overt cognitive difficulties, although somewhat circumstantial. The Veteran did not answer for a follow-up call in August 2020. The Veteran resumed VA mental health telephone counseling in October 2020. The Veteran indicated he was winding down for the busy season and noted his business did well, considering the pandemic. The Veteran stated he was stilling looking into selling the business and retiring. The VA treatment provider reviewed coping skills and the Veteran indicated it was helpful to take breaks each day. The VA treatment provider did not note any changes to the Veteran’s mental status. The Board finds an initial 70 percent evaluation is warranted. The Veteran has occupational and social impairment with deficiencies in most areas, such as work, thinking, and mood, due to such symptoms as: suicidal ideation; difficulty in adapting to stressful circumstances (including work or a worklike setting), and inability to establish and maintain effective relationships. The Board notes the only evidence of record prior to October 2018 was the July 2015 VA examination. While the examiner assessed occupational and social impairment with occasional decrease in work efficiency, the examiner noted symptoms of passive suicidal ideation and difficulty in adapting to stressful circumstances. Notably, in the diagnosis section the examiner indicated the Veteran felt helpless and hopeless. Additionally, difficulty adapting to stressful circumstances and suicidal ideation are specifically contemplated by the 70 percent criteria. Thus, an initial 70 percent evaluation is warranted. A higher 100 percent evaluation is not warranted. First, the Veteran is not totally occupationally impaired. The Veteran runs a successful business and manages employees. The Veteran regularly mentions working several hours a day. Secondly, the Veteran is not totally socially impaired. The Veteran regularly noted a good relationship with his wife and his daughters. During October 2019 VA treatment the Veteran mentioned visiting with friends in Montana and spending time with his wife in Hawaii. While the record documents significant impairments there is no indication the Veteran has total occupational and social impairment. Additionally, there is no evidence of symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. Thus, a higher 100 percent evaluation is not warranted. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Service Connection- Neck, upper back, low back Remand is required for an adequate addendum opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. Where the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The Veteran received a December 2019 VA spine and cervical examination. The examiner opined the neck, upper back and low back disorder were less likely than not incurred in or caused by service. The examiner explained that service treatment records (STRs) were silent for neck pain, upper back pain, or low back pain. During the October 2018 Board hearing, the Veteran conceded he did not go to sick call but instead treated his back pain with ibuprofen. The April 2019 Board remand directive instructed the examiner to specifically address the Veteran’s assertion of in-service back pain. The examiner did not address the Veteran’s statement in rendering an opinion. The December 2019 examiner opined the back disorders were less likely than not proximately due to or the result of the Veteran’s service-connected depression. The examiner explained there is a bidirectional interaction between depression and chronic pain, which is well-documented in medical literature. The examiner opined while chronic pain can cause depression, it is less likely than not that depression causes chronic neck or back pain. The examiner stated there is support in medical literature that depression can aggravate chronic pain. The examiner did not provide a baseline but opined chronic neck and back pain was at least as likely as not aggravated beyond its natural progression by service-connected depression. The examiner stated that medical literature supports the contention that depression can lead to exacerbation of chronic neck and back pain. The examiner cited to the medical literature which concluded, “depression is a strong and independent predictor for the onset of an episode of intense and/or disabling neck and low back pain.” First, the examiner did not provide a baseline for the aggravation opinion. See 38 C.F.R. § 3.310. Second, the literature provided seems to indicate causation not aggravation which is in direct contrast to the examiner’s negative opinion regarding causation. In a September 2020 deferred rating decision, the AOJ indicated the aggravation opinion failed to provide an adequate baseline. The same examiner provider an October 2020 addendum opinion. Instead of simply requesting a baseline, the AOJ stated, “the examiner already opined that the neck and back conditions were not proximately due to or the result of the service- connected depression and therefore these conditions must have existed prior to the aggravation by the service-connected depression.” Based on the AOJ request, the examiner changed their opinion and ultimately concluded that from the perspective of biologic plausibility, it is less likely than not that service-connected depression would aggravate the long-term progression of the Veteran’s back disorder. In terms of aggravation, the United States Court of Appeals for Veterans Claims (Court) recently held in Ward v. Wilkie, 31 Vet. App. 233 (2019) that aggravation under 38 C.F.R. § 3.310(b) does not require that there be “permanent” worsening of the nonservice connected disability. The Court found that service connection is warranted for any incremental increase in disability or any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence. The Board notes the examiner did not use the word permanent but based the new opinion on a “long-term” progression. This is not the correct legal standard. Additionally, the examiner does not mention the medical literature cited in the December 2019 VA examination opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). Accordingly, remand is required for an adequate VA opinion. The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the neck disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the neck disorder had onset in, or is otherwise related to, active service. Second, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the neck disorder is caused or aggravated by the service-connected depression. Third, if the examiner determines aggravation is present, the examiner must report the baseline level of severity of the neck disorder prior to the onset of aggravation. The examiner must note that service connection is warranted for any incremental increase in disability or any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence. The examiner must address the following: 1) the Veteran’s assertions of in-service neck pain, neck pain that has continued since service, and depression that causes stress to bundle in his neck; 2) VA treatment for chronic neck pain; and 3) December 2019 VA examination positive aggravation opinion that cited to medical literature which concluded, “depression is a strong and independent predictor for the onset of an episode of intense and/or disabling neck and low back pain.” 2. Obtain an addendum opinion regarding the etiology of the upper back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the upper back disorder had onset in, or is otherwise related to, active service. Second, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the upper back disorder is caused or aggravated by the service-connected depression. Third, if the examiner determines aggravation is present, the examiner must report the baseline level of severity of the upper back disorder prior to the onset of aggravation. The examiner must note that service connection is warranted for any incremental increase in disability or any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence. The examiner must address the following: 1) the Veteran’s assertions of in-service back pain, back pain that has continued since service, and depression that causes stress to bundle in his back; 2) VA treatment for chronic back pain; and 3) December 2019 VA examination positive aggravation opinion that cited to medical literature which concluded, “depression is a strong and independent predictor for the onset of an episode of intense and/or disabling neck and low back pain.” 3. Obtain an addendum opinion regarding the etiology of the low back disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the low back disorder had onset in, or is otherwise related to, active service. Second, the examiner must provide an opinion whether it is at least as likely as not (50 percent or greater probability) that the low back disorder is caused or aggravated by the service-connected depression. Third, if the examiner determines aggravation is present, the examiner must report the baseline level of severity of the low back disorder prior to the onset of aggravation. The examiner must note that service connection is warranted for any incremental increase in disability any additional impairment of earning capacity in non-service-connected disabilities resulting from service-connected conditions regardless of its permanence. The examiner must address the following: 1) the Veteran’s assertions of in-service low back pain, low back pain that has continued since service, and depression that causes stress to bundle in his low back; 2) VA treatment for chronic back pain; and 3) December 2019 VA examination positive aggravation opinion that cited to medical literature which concluded, “depression is a strong and independent predictor for the onset of an episode of intense and/or disabling neck and low back pain.” 4. If a VA examination is deemed necessary, notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2020). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.