Citation Nr: 21023888 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-59 539 DATE: April 21, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a left shoulder disability is reopened; to this extent only, the claim is granted. An effective date prior to August 9, 2016 for the award of service connection for fracture of left orbital floor and left zygomatic arch is denied. An effective date prior to April 27, 2018 for the award of service connection for cervical spine intervertebral disc disease with degenerative arthritis is denied. An effective date prior to April 27, 2018 for the award of service connection for left upper extremity radiculopathy is denied. An effective date prior to April 27, 2018 for the award of service connection for right upper extremity radiculopathy is denied. An effective date prior to April 27, 2018 for the award of service connection for scar, status post cervical discectomy, is denied. The reduction of the rating for lumbar spine degenerative disc disease from 40 percent to 20 percent, effective June 1, 2017, was improper, and restoration of the prior 40 percent rating is granted. A temporary total 100 percent rating under 38 C.F.R. § 4.30 for right lower extremity peripheral artery disease is denied as a matter of law.  REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to an initial compensable rating for fracture of left orbital floor and left zygomatic arch is remanded. Entitlement to an initial rating in excess of 20 percent for cervical spine intervertebral disc disease with degenerative arthritis is remanded. Entitlement to an initial rating in excess of 30 percent for left upper extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 40 percent for right upper extremity radiculopathy is remanded. Entitlement to an initial compensable rating for scar, status post cervical discectomy, is remanded. Entitlement to a rating in excess of 40 percent (prior to June 8, 2016 and from August 1, 2016) for lumbar spine degenerative disc disease is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent (prior to August 9, 2016) and in excess of 20 percent (from August 9, 2016) for right lower extremity radiculopathy with complex regional pain syndrome is remanded. Entitlement to an initial compensable rating for surgical scar, status post L5-S1 spinal fusion, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a left shoulder disability was previously denied by a March 2016 rating decision; the Veteran did not appeal the decision, and VA did not actually or constructively receive documentation constituting new and material evidence within the one-year appeal period. 2. Additional evidence received since the March 2016 rating decision is not cumulative or redundant of the evidence of record at the time of that decision, relates to an unestablished fact necessary to substantiate the claim for service connection for a left shoulder disability, and raises a reasonable possibility of substantiating the claim. 3. On August 9, 2016, the Veteran filed an original claim for entitlement to service connection for fracture of left orbital floor and left zygomatic arch. A February 2017 rating decision granted service connection for fracture of left orbital floor and left zygomatic arch, effective August 9, 2016 (i.e., the date VA received the Veteran’s original claim for service connection for such disability). 4. On April 27, 2018, the Veteran filed an original claim for entitlement to service connection for a cervical spine disability. A June 2018 rating decision granted service connection for cervical spine intervertebral disc disease with degenerative arthritis, for left upper extremity radiculopathy, for right upper extremity radiculopathy, and for scar, status post cervical discectomy, all effective April 27, 2018 (i.e., the date VA received the Veteran’s original claim for service connection for a cervical spine disability). 5. Following all proper procedural requirements, a March 2017 rating decision reduced the rating for the Veteran’s lumbar spine degenerative disc disease from 40 percent to 20 percent, effective June 1, 2017. Prior to the reduction at issue, the Veteran’s lumbar spine degenerative disc disease had been rated as 40 percent disabling since February 9, 2009, a period of more than five years. Such reduction was based on evidence which does not show improvement in the Veteran’s ability to function under the ordinary conditions of life and work and does not demonstrate sustained material improvement. 6. The Veteran underwent surgeries for his right lower extremity peripheral artery disease in June 2017 and in September 2017, but he was not service-connected for this disability until April 27, 2018 (i.e., the date VA received his original claim for service connection for such disability). CONCLUSIONS OF LAW 1. The March 2016 rating decision denying service connection for a left shoulder disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103 (2020). 2. New and material evidence has been received to reopen the Veteran’s claim for entitlement to service connection for a left shoulder disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). 3. An effective date prior to August 9, 2016 for the award of service connection for fracture of left orbital floor and left zygomatic arch is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400(b)(2) (2020). 4. An effective date prior to April 27, 2018 for the award of service connection for cervical spine intervertebral disc disease with degenerative arthritis is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400(b)(2) (2020). 5. An effective date prior to April 27, 2018 for the award of service connection for left upper extremity radiculopathy is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400(b)(2) (2020). 6. An effective date prior to April 27, 2018 for the award of service connection for right upper extremity radiculopathy is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400(b)(2) (2020). 7. An effective date prior to April 27, 2018 for the award of service connection for scar, status post cervical discectomy, is not warranted. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400(b)(2) (2020). 8. The reduction of the rating for lumbar spine degenerative disc disease from 40 percent to 20 percent, effective June 1, 2017, was improper, and restoration of the prior 40 percent rating is warranted. 38 U.S.C. § 1155, 5107, 5112 (2012); 38 C.F.R. § 3.105(e), 3.344, 4.71a, Diagnostic Code (DC) 5242 (2020). 9. A temporary total 100 percent rating under 38 C.F.R. § 4.30 for right lower extremity peripheral artery disease is not warranted as a matter of law. 38 C.F.R. § 4.30 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to October 1993. His DD 214 documents that he received the Combat Action Ribbon [thereby triggering the applicability of 38 U.S.C. § 1154(b) for his combat service and any events consistent with such service]. In addition, his service personnel records (SPRs) document that he served in Saudi Arabia from September 1990 to March 1991 during his active duty service [thereby triggering the applicability of 38 C.F.R. § 3.317 for his service in the Southwest Asia theater of operations]. In June 2020, a virtual hearing was held before the undersigned Veterans Law Judge, and a transcript of the hearing is associated with the record. From the date of the hearing, the record was held open for 60 days in order to allow for the submission of additional evidence for consideration. Additional evidence was submitted in August 2020, accompanied by a waiver of initial Agency of Original Jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1305 (2020).   Reopening a Service Connection Claim 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left shoulder disability. Generally, a claim which has been denied may not thereafter be reopened and allowed based on the same record. 38 U.S.C. §§ 7104, 7105. However, pursuant to 38 U.S.C. § 5108, if new and material evidence is presented or secured with respect to a claim which has been disallowed, the VA Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. Id. In determining whether evidence is new and material, the credibility of the new evidence must be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly received evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Shade, 24 Vet. App. at 118. If the Board determines that the evidence submitted is both new and material, it must reopen the case and evaluate the claim in light of all the evidence. Justus, 3 Vet. App. at 512. Such evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Id. at 513. A claim for entitlement to service connection for a left shoulder disability was initially denied in a March 2016 rating decision on the basis of finding that the evidence did not show a nexus between any current left shoulder disability and either his military service or a service-connected disability. The AOJ notified the Veteran of its decision, and of his appellate rights. The Veteran did not appeal the decision, nor did VA actually or constructively receive any new and material evidence within a year following the decision. Therefore, the March 2016 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The evidence received since the March 2016 rating decision includes the report of a June 2018 VA neck examination, which noted that the flare-ups of the Veteran’s cervical spine intervertebral disc disease with degenerative arthritis [which is now a service-connected disability] can be described as “sharp shooting pain through shoulders and into arm.” This evidence was not before adjudicators when the Veteran’s claim was last denied by the AOJ in March 2016, and it is not cumulative or redundant of the evidence of record at the time of that decision. It also relates to an unestablished fact necessary to substantiate the claim for service connection for a left shoulder disability and raises a reasonable possibility of substantiating the claim. Accordingly, the claim is reopened. Effective Date Claims The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award will be the day following separation from active service or the date entitlement arose if the claim is received by VA within one year after separation from service; otherwise, the effective date will be the date of receipt of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). As noted above, the Veteran separated from active service in October 1993.   2. Entitlement to an effective date prior to August 9, 2016 for the award of service connection for fracture of left orbital floor and left zygomatic arch. On August 9, 2016, the Veteran filed an original claim for entitlement to service connection for fracture of left orbital floor and left zygomatic arch. A February 2017 rating decision granted service connection for fracture of left orbital floor and left zygomatic arch, effective August 9, 2016 (i.e., the date VA received the Veteran’s original claim for service connection for such disability). The Veteran contends that he is entitled to an effective date prior to August 9, 2016 for the award of service connection for fracture of left orbital floor and left zygomatic arch. The evidence of record documents that the Veteran fractured his left orbital floor and left zygomatic arch during service in June 1991 when he was punched in the left orbit during a basketball game. However, there is no evidence or correspondence in the record that was received prior to August 9, 2016 which could be construed as any type of claim for service connection for fracture of left orbital floor and left zygomatic arch. See 38 C.F.R. § 3.155. Therefore, the earliest possible (and appropriate) effective date for the award of service connection for fracture of left orbital floor and left zygomatic arch is August 9, 2016 (which is the date VA received the Veteran’s original claim for service connection for such disability), in accordance with 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2). Accordingly, the Board finds that an effective date prior to August 9, 2016 for the award of service connection for fracture of left orbital floor and left zygomatic arch is not warranted, and the earlier effective date claim is denied.   3. Entitlement to an effective date prior to April 27, 2018 for the award of service connection for cervical spine intervertebral disc disease with degenerative arthritis. 4. Entitlement to an effective date prior to April 27, 2018 for the award of service connection for left upper extremity radiculopathy. 5. Entitlement to an effective date prior to April 27, 2018 for the award of service connection for right upper extremity radiculopathy. 6. Entitlement to an effective date prior to April 27, 2018 for the award of service connection for scar, status post cervical discectomy. On April 27, 2018, the Veteran filed an original claim for entitlement to service connection for a cervical spine disability. A June 2018 rating decision granted service connection for cervical spine intervertebral disc disease with degenerative arthritis, for left upper extremity radiculopathy, for right upper extremity radiculopathy, and for scar, status post cervical discectomy, all effective April 27, 2018 (i.e., the date VA received the Veteran’s original claim for service connection for a cervical spine disability). The Veteran contends that he is entitled to an effective date prior to April 27, 2018 for the awards of service connection for cervical spine intervertebral disc disease with degenerative arthritis, for left upper extremity radiculopathy, for right upper extremity radiculopathy, and for scar, status post cervical discectomy. The evidence of record documents that the Veteran underwent cervical discectomy surgery in January 2016 at a private medical facility. However, there is no evidence or correspondence in the record that was received prior to April 27, 2018 which could be construed as any type of claim for service connection for a cervical spine disability (such as cervical spine intervertebral disc disease with degenerative arthritis) or for any associated disabilities (such as left upper extremity radiculopathy, right upper extremity radiculopathy, and scar, status post cervical discectomy). See 38 C.F.R. § 3.155. Therefore, the earliest possible (and appropriate) effective date for the awards of service connection for cervical spine intervertebral disc disease with degenerative arthritis, for left upper extremity radiculopathy, for right upper extremity radiculopathy, and for scar, status post cervical discectomy, is April 27, 2018 (which is the date VA received the Veteran’s original claim for service connection for a cervical spine disability), in accordance with 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2). Accordingly, the Board finds that an effective date prior to April 27, 2018 for the awards of service connection for cervical spine intervertebral disc disease with degenerative arthritis, for left upper extremity radiculopathy, for right upper extremity radiculopathy, and for scar, status post cervical discectomy, is not warranted, and the earlier effective date claims are denied. Propriety of Reduction Claim 7. Whether the reduction of the rating for lumbar spine degenerative disc disease from 40 percent to 20 percent, effective June 1, 2017, was proper. Prior to the reduction at issue, the Veteran’s lumbar spine degenerative disc disease had been rated as 40 percent disabling since February 9, 2009. For ratings that have been in effect for five years or more, as the 40 percent rating for the Veteran’s lumbar spine degenerative disc disease was in this case, reduction is warranted when reexamination discloses sustained material improvement. See 38 C.F.R. § 3.344; see also Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344(a). In any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in a Veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In October 2015, the Veteran filed a claim for a rating in excess of 40 percent for his service-connected lumbar spine degenerative disc disease. Following a December 2015 VA back examination, the AOJ continued the 40 percent rating for this disability in a March 2016 rating decision, finding that recent evidence showed some improvement in the condition but that sustained improvement had not been definitively established. Within one year of that rating decision, in August 2016, the Veteran filed another claim for a rating in excess of 40 percent for his service-connected lumbar spine degenerative disc disease, along with an accompanying claim for a TDIU rating (indicating on an August 2016 VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, that as of June 2016 he had become too disabled to work due in part to his service-connected lumbar spine degenerative disc disease). Following an October 2016 VA back examination, a December 2016 rating decision proposed a reduction of the rating for lumbar spine degenerative disc disease from 40 percent to 20 percent, finding that the December 2015 VA back examination had initially shown improvement in this disability and that the October 2016 VA back examination had continued to show improvement in this disability. Thereafter, in a March 2017 rating decision, the AOJ effectuated the proposed reduction with an effective date of June 1, 2017 (i.e., the first date of the month after a two-month grace period following notification of such reduction). The Veteran contends that the reduction of the rating for his lumbar spine degenerative disc disease from 40 percent to 20 percent, effective June 1, 2017, was improper, and he seeks restoration of the 40 percent rating for such disability. As an initial matter, the Board finds that the procedural requirements of 38 C.F.R. §§ 3.105(e) have been met in this case. As outlined above, the Veteran was notified of the proposed rating reduction of his service-connected lumbar spine degenerative disc disease by a December 2016 rating decision (and an associated December 2016 notification letter). The Veteran did not request a predetermination hearing. The actual reduction was effectuated by a March 2017 rating decision with an effective date of June 1, 2017. Therefore, the proper procedures were followed in reducing the assigned rating for this disability. The Board finds that the pertinent evidence of record, including the December 2015 and October 2016 VA back examinations cited by the AOJ, does not show improvement in the Veteran’s ability to function under the ordinary conditions of life and work and does not demonstrate sustained material improvement, as will be outlined below. At the December 2015 VA back examination, the Veteran reported having chronic daily back pain (at a level 7 out of 10) and daily short-lived flare-ups but no true functional loss. However, it was noted on range of motion testing that the Veteran had pain on examination which did cause functional loss. The VA examiner stated that the Veteran “could potentially have further limitation in range of motion, potentially have an increase in the amount of pain[,] and potentially have further decrease in functional capacity during flare ups and/or with repetitive motion/use over time” upon leaving the clinical setting and returning to his usual day-to-day environment and activities; however, the VA examiner noted being unable to provide an opinion regarding additional range of motion loss with repeated use over time or with flare-ups without resorting to speculation due to not having access to the Veteran outside of the clinical arena. Private treatment records document that the Veteran underwent an L5-S1 spinal fusion surgery on June 8, 2016. The operative report noted that the indications for this procedure were as follows: “chronic low back pain and neurogenic claudication worse on the left than on the right, but also with progressing pain in the L5 distribution on the right with imaging demonstrating foraminal stenosis at L5-S1.” [Based on this surgery, the AOJ in an October 2017 rating decision granted a temporary total 100 percent rating under 38 C.F.R. § 4.30 for the Veteran’s lumbar spine degenerative disc disease, effective from June 8, 2016 (i.e., the date of his spinal fusion surgery) through July 31, 2016, followed by a 40 percent rating effective August 1, 2016.] As noted above, the Veteran indicated on an August 2016 VA Form 21-8940 that as of June 2016 he had become too disabled to work due in part to his service-connected lumbar spine degenerative disc disease. At the October 2016 VA back examination, the Veteran denied having flare-ups of his back condition now, but “because the pain is constant.” It was noted on range of motion testing that the Veteran had pain on examination which did not cause functional loss. The VA examiner stated that the Veteran “could potentially have further limitation in range of motion, potentially have an increase in the amount of pain[,] and potentially have further decrease in functional capacity during flare ups and/or with repetitive motion/use over time” upon leaving the clinical setting and returning to his usual day-to-day environment and activities; however, the VA examiner noted being unable to provide an opinion regarding additional range of motion loss with repeated use over time [with no comment on flare-ups, as the Veteran denied those] without resorting to speculation due to not having access to the Veteran outside of the clinical arena. In May 2017, the Veteran indicated on another VA Form 21-8940 that as of June 2016 he had become too disabled to work due in part to his service-connected lumbar spine degenerative disc disease (with back surgery in June 2016). At a May 2017 VA back examination, the Veteran reported that his back pain had gotten progressively worse and that his June 2016 spinal fusion surgery “limits him even more.” He described flare-ups of his back symptoms (“chronic back pain, burning with walking, numbness, tingling, sharp, shooting, stabbing pains in both lower extremities worse in the left lower leg”) as being “more severe and intense, unable to move, have to lie in a fetal position while in bed, unable to stand up straight” occurring two to three times monthly at a severity level of 9 out of 10. He also described his functional loss due to his back condition as follows: “limits my sexual activities, limits daily activity such as house chores, and yard work, unable to lift, pull, push, bend, twisting, squatting, unable [to] tolerate prolong[ed] sitting, standing or walking, have to take elevators[,] unable to walk up and down stairs[.]” It was noted on range of motion testing that the Veteran had pain noted on examination which did not cause functional loss. The VA examiner noted being unable to provide an opinion regarding additional range of motion loss with repeated use over time or with flare-ups without resorting to mere speculation due to not directly observing function under these conditions. Based on the pertinent evidence outlined above, the Board finds that the reduction in the rating for the Veteran’s lumbar spine degenerative disc disease from 40 percent to 20 percent, effective June 1, 2017, was not factually warranted and was therefore improper, as such evidence documented that the Veteran’s back symptoms continued to progressively worsen (from having short-lived flare-ups at the December 2015 VA back examination, to undergoing lumbar fusion surgery in June 2016, to having constant pain at the October 2016 VA back examination, to manifesting in multiple functional limitations in his everyday life as described by the Veteran at the May 2017 VA back examination). Accordingly, as the evidence does not show improvement in the Veteran’s ability to function under the ordinary conditions of life and work and does not demonstrate sustained material improvement, the Board finds that restoration of the prior 40 percent rating for the Veteran’s lumbar spine degenerative disc disease is warranted. Temporary Total Rating Claim 8. Entitlement to a temporary total 100 percent rating under 38 C.F.R. § 4.30 for right lower extremity peripheral artery disease. If treatment of a service-connected disability results in surgery necessitating at least one month of convalescence, a temporary total disability rating will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge or outpatient release that entitlement is warranted (per the specified conditions of this regulation) for a period of one, two, or three months. Awards are to commence on the day of hospital admission and continue for a period of one to three months from the first day of the month following hospital discharge or outpatient release. See 38 C.F.R. § 4.30(a)(1). Extensions of one, two, or three months beyond the initial three months may be granted. See 38 C.F.R. § 4.30(b)(1). The evidence of record documents that the Veteran underwent surgeries for his right lower extremity peripheral artery disease in June 2017 (for a right leg posterior tibial artery bypass) and in September 2017 (for occlusion of the right femorotibial bypass graft). More than six months later, on April 27, 2018, the Veteran filed an original claim for entitlement to service connection for right lower extremity peripheral artery disease, to include a temporary total rating for such disability under 38 C.F.R. § 4.30 for convalescence following his June 2017 and September 2017 surgeries. A June 2018 rating decision denied service connection for such disability and also denied a temporary total rating under 38 C.F.R. § 4.30 for such disability. Thereafter, a June 2019 rating decision granted service connection for right lower extremity peripheral artery disease (at a 20 percent rating), for residual painful surgical scars of the right lower extremity (at a 10 percent rating), and for surgical scars of the right lower extremity (at a 0 percent rating) all effective April 27, 2018 (i.e., the date VA received the Veteran’s original claim for service connection for right lower extremity peripheral artery disease). The Veteran proceeded to perfect an appeal to the Board only of the denial of a temporary total rating under 38 C.F.R. § 4.30 for right lower extremity peripheral artery disease. [The issues of higher ratings for right lower extremity peripheral artery disease, for residual painful surgical scars of the right lower extremity, and for surgical scars of the right lower extremity are not before the Board. Following the June 2019 rating decision, in July 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the June 2019 rating decision with regard to the awards of service connection for these disabilities. Following a December 2019 rating decision which recharacterized residual painful surgical scars of the right lower extremity to be combined and rated with residual painful surgical scars of the left lower extremity, the AOJ issued an HLR decision in March 2021 denying increased ratings for right lower extremity peripheral artery disease and for surgical scars of the right lower extremity, and such issues have not at this time been appealed to the Board.] Because the Veteran’s right lower extremity peripheral artery disease was not a service-connected disability until April 27, 2018 (and in fact he was more than six months beyond his last surgery date in September 2017 when he filed his service connection claim for such disability), he cannot be awarded a temporary total rating under 38 C.F.R. § 4.30 for such disability, because awards under 38 C.F.R. § 4.30 are applicable only to service-connected disabilities. See 38 C.F.R. § 4.30. Accordingly, the Board finds that the Veteran’s claim for entitlement to a temporary total 100 percent rating under 38 C.F.R. § 4.30 for right lower extremity peripheral artery disease must be denied as a matter of law – and, as such, any factual questions pertaining to the Veteran’s convalescence following his 2017 surgeries for such disability are rendered moot. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Where the law, rather than the facts, is dispositive, the benefit of the doubt provisions are not for application. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability. The Veteran contends that he currently has a left shoulder disability which may have resulted from his military service or secondary to his service-connected disabilities of lumbar spine degenerative disc disease, cervical spine intervertebral disc disease with degenerative arthritis, and/or left upper extremity radiculopathy. Furthermore, the Board will also consider whether any current left shoulder joint pain symptoms not associated with a diagnosis may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness or due to exposures during his verified service in the Southwest Asia theater of operations. The Veteran’s service treatment records (STRs) do not note any reports, findings, diagnosis, or treatment of a left shoulder disability during his military service. However, as noted above, the Veteran’s verified receipt of the Combat Action Ribbon triggers the applicability of 38 U.S.C. § 1154(b) for his combat service and any events consistent with such service. Post-service, the Veteran’s VA treatment records first documented treatment for left shoulder pain in September 2012 after he flipped off his motorbike and fell onto his left shoulder eight weeks prior and after he tried to pull down a heavy limb and heard a pop in August 2012, and he was assessed with left shoulder arthralgia at that time. An October 2015 VA treatment record noted his complaint of left shoulder pain with the following self-reported history: “I fell 10 ft in a bunker in Desert Storm in 1991. I fell half way on a table and half way off the table. I attempted to reach to catch myself and my left arm was behind me. It has been hurting ever[] since. The [symptoms] would flare up and go away.” An October 2015 VA MRI of his left shoulder showed tendinosis and possibly very small partial tear insertion of infraspinatus tendon. At a December 2015 VA shoulder and arm examination, the Veteran’s 2015 diagnosis of left shoulder tendinosis and very small partial tear insertion of infraspinatus tendon was noted. The Veteran reported that he injured his left shoulder when he fell through a bunker roof during combat after crossing the Kuwait border out of Saudi Arabia. The VA examiner noted that the current examination was “clouded somewhat by the Veteran[’]s concomitant neck pain with radicular symptoms. Movement of the shoulder aggravated the neck and vice versa.” [At the time of this examination, the Veteran was not yet service-connected for cervical spine intervertebral disc disease with degenerative arthritis or for left upper extremity radiculopathy.] In a December 2015 addendum, the VA examiner opined that it was less likely as not that the Veteran’s current left shoulder condition was related to his time in service, with the rationale being that it appeared he had been asymptomatic since his alleged in-service injury and that there had been no continuity of care for the claimed left shoulder disability; however, this opinion did not address the Veteran’s allegations of continuity of symptomatology since service. The VA examiner also opined that there was no aggravation of the Veteran’s left shoulder beyond natural progression as a result of his service-connected lumbar spine degenerative disc disease; however, no rationale was provided for this opinion. The VA examiner further opined that there was no medical literature that supports the premise that a back condition would cause a left shoulder tendinosis and very small partial tear insertion of infraspinatus tendon, and that this condition was more likely related to aging and activity. As discussed above, at a June 2018 VA neck examination, it was noted that the flare-ups of the Veteran’s cervical spine intervertebral disc disease with degenerative arthritis [which is now a service-connected disability] can be described as “sharp shooting pain through shoulders and into arm.” On remand, after all outstanding treatment records have been associated with the claims file, a new examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to all current left shoulder disabilities. Additionally, following a June 2019 SOC addressing the issue of service connection for a left shoulder disability, pertinent VA-generated evidence was added to the claims file which has not yet been considered by the AOJ, including the report of June 2020 VA left shoulder x-rays (showing mild degenerative changes) which the Veteran referenced at his June 2020 Board hearing, as well as the report of a July 2020 VA left shoulder MRI (showing minimal tenosynovitis of the vertical portion of the long head of biceps (LHB) tendon within and below the bicipital groove, and a small Hill-Sachs lesion). Because no waiver of initial AOJ consideration was ever received for this evidence, the AOJ must consider such evidence in the first instance when this claim is readjudicated on remand. 2. Entitlement to service connection for a right shoulder disability. The Veteran contends that he currently has a right shoulder disability which may have resulted from his military service or secondary to his service-connected disabilities of cervical spine intervertebral disc disease with degenerative arthritis and/or right upper extremity radiculopathy. Furthermore, the Board will also consider whether any current right shoulder joint pain symptoms not associated with a diagnosis may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness or due to exposures during his verified service in the Southwest Asia theater of operations. The Veteran’s STRs do not note any reports, findings, diagnosis, or treatment of a right shoulder disability during his military service. Post-service, the Veteran’s VA treatment records referenced right shoulder tendinitis in January 2006 and first documented treatment for right shoulder pain in June 2012 after he flipped over the handle bars of a motorcycle the day before. At a December 2015 VA shoulder and arm examination, no findings regarding the right shoulder were noted. At a June 2018 VA neck examination, it was noted that the flare-ups of the Veteran’s cervical spine intervertebral disc disease with degenerative arthritis [which is now a service-connected disability] can be described as “sharp shooting pain through shoulders and into arm.” On remand, after all outstanding treatment records have been associated with the claims file, an examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to any current right shoulder disability (to include pain alone resulting in functional impairment of earning capacity). 3. Entitlement to service connection for migraine headaches. The Veteran contends that he currently has migraine headaches which may have resulted from his military service or secondary to his service-connected disabilities of fracture of left orbital floor and left zygomatic arch, lumbar spine degenerative disc disease, cervical spine intervertebral disc disease with degenerative arthritis, and/or posttraumatic stress disorder (PTSD). Furthermore, the Board will also consider whether any current headache symptoms not associated with a diagnosis may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness or due to exposures during his verified service in the Southwest Asia theater of operations. The Veteran’s STRs document that he fractured his left orbital floor and left zygomatic arch during service in June 1991 when he was punched in the left orbit during a basketball game. His STRs also include one notation in February 1993 of headaches along with congestion and productive cough, and he was assessed with bronchitis at that time. Post-service, the Veteran’s VA treatment records first documented treatment for headaches in July 2007, when he reported that his headache “has been going on for a while now” and stated that the pain started in his neck with stiffness which turned into a headache with muscle tightness; an impression was rendered of headache, with a neurological examination unremarkable, “tension type most likely from c-spine.” [At the time of this report, the Veteran was not yet service-connected for cervical spine intervertebral disc disease with degenerative arthritis.] Subsequent VA treatment records noted headaches, including in September 2009 (for two weeks, at the base of his neck), in June 2015 (for approximately one week, after a lumbar myelogram fluoroscopy procedure, in December 2015 (when he reported that his headaches began or got worse after a traumatic brain injury (TBI) during his in-service deployment), and in February 2016 (when he reported that he had his first headache after being hit in the face in service prior to his deployment and that he currently had post-traumatic migraines). At an October 2016 VA headaches examination, the Veteran was diagnosed with migraine headaches. In a January 2017 addendum, the VA examiner opined that the Veteran’s migraine headaches were less likely than not incurred in or caused by the claimed in-service injury, event, or illness, with the rationale being that there was no evidence of a headache disorder in service or for many years thereafter, and that post-traumatic headaches would begin at the time of (or shortly following) the inciting trauma, but after the Veteran’s in-service facial trauma and the one notation of headache in his STRs he was not treated for headaches until July 2007. The VA examiner also opined that the Veteran’s migraine headaches were less likely than not proximately due to or the result of his service-connected fracture of left orbital floor and left zygomatic arch, with the rationale being that there was no evidence of headaches at the time of the original trauma (i.e., the in-service facial fracture injury) or for many years thereafter, and given the “exceedingly long interval” between the trauma and the onset of headaches it appeared unlikely that his service injury aggravated his migraines beyond natural progression. However, while this rationale did address the question of secondary causation, it did not adequately address the question of secondary aggravation as it did not consider any aggravating effects of the Veteran’s current disability picture for his service-connected fracture of left orbital floor and left zygomatic arch on his current migraine headaches. In a December 2019 written submission, the Veteran alleged that he had been getting headaches ever since he broke his zygomatic arch playing basketball in the Navy. He also noted that since his service discharge, he had not always sought treatment for these headaches, but instead self-treated at home by taking Motrin and going to bed. In a January 2020 written submission, the Veteran’s friend (M.B.B.) noted that the Veteran’s sinus issues over the past year included increased headaches. [The Veteran’s service-connected fracture of left orbital floor and left zygomatic arch is currently rated under DC 6513, which provides rating criteria for maxillary chronic sinusitis.] At his June 2020 Board hearing, the Veteran testified that he had had migraine headaches ever since his TBI in the Navy when he took an elbow to the head while playing basketball which fractured his zygomatic arch and left orbital floor, and that he had never had headaches until after this in-service injury. In August 2020, the Veteran’s attorney submitted treatise articles discussing a relationship between headaches and cervical spine damage; post-traumatic headaches; a relationship between PTSD and headaches; and headaches after TBI. On remand, after all outstanding treatment records have been associated with the claims file, a new examination with medical opinion should be obtained in order to adequately address the theories of service connection raised with regard to the Veteran’s current migraine headaches. 4. Entitlement to an initial compensable rating for fracture of left orbital floor and left zygomatic arch. The Veteran contends that he is entitled to an initial compensable rating for his service-connected fracture of left orbital floor and left zygomatic arch. The record reflects that the Veteran most recently underwent a VA nose and sinus examination in January 2017. Thereafter, the evidence of record (including written statements from the Veteran in January 2020 and his wife in January 2020, as well as the Veteran’s June 2020 Board hearing testimony) indicates worsened symptoms of this disability. On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity of the Veteran’s service-connected fracture of left orbital floor and left zygomatic arch, as there is an indication that the condition may have worsened since his last VA examination.   5. Entitlement to an initial rating in excess of 20 percent for cervical spine intervertebral disc disease with degenerative arthritis. The Veteran contends that he is entitled to a higher initial rating for his service-connected cervical spine intervertebral disc disease with degenerative arthritis. The record reflects that the Veteran most recently underwent a VA neck examination in June 2018. Thereafter, the evidence of record (including the Veteran’s June 2020 Board hearing testimony and a July 2020 VA treatment record noting his request for an updated physical examination for chronic neck pain) indicates worsened symptoms of this disability. On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity of the Veteran’s service-connected cervical spine intervertebral disc disease with degenerative arthritis, as there is an indication that the condition may have worsened since his last VA examination. The examiner should consider all applicable rating criteria, as during the pendency of the instant appeal, VA revised the criteria for rating disabilities of the musculoskeletal system, effective February 7, 2021. See 85 Fed. Reg. 76453-469 (Nov. 30, 2020). 6. Entitlement to an initial rating in excess of 30 percent for left upper extremity radiculopathy. 7. Entitlement to an initial rating in excess of 40 percent for right upper extremity radiculopathy. The Veteran contends that he is entitled to higher initial ratings for his service-connected left and right upper extremity radiculopathy. During the pendency of the instant appeal, a June 2019 rating decision granted an increased 30 percent rating for left upper extremity radiculopathy and an increased 40 percent rating for right upper extremity radiculopathy, both effective April 27, 2018 (i.e., the date VA received the Veteran’s original claim for service connection for a cervical spine disability). Because those awards did not represent a total grant of benefits sought on appeal for these issues, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). [Following the June 2019 rating decision, in July 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: HLR, and requested review of the June 2019 rating decision with regard to the increased ratings awarded for his left and right upper extremity radiculopathy disabilities. In an August 2019 letter, the AOJ explained to the Veteran that his July 2019 HLR opt-in request was invalid for these two issues because an appeal was already pending for such issues.] The record reflects that the Veteran most recently underwent a VA neck examination with upper extremity peripheral nerve testing in June 2018. Thereafter, the evidence of record (including the Veteran’s June 2020 Board hearing testimony) indicates worsened symptoms of these disabilities. On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity of the Veteran’s service-connected left and right upper extremity radiculopathy, as there is an indication that the conditions may have worsened since his last VA examination. 8. Entitlement to an initial compensable rating for scar, status post cervical discectomy. The Veteran contends that he is entitled to an initial compensable rating for his service-connected scar, status post cervical discectomy. The record reflects that the Veteran most recently underwent a VA neck examination with scar findings noted in June 2018. [Although the Veteran underwent a VA scar examination in May 2019, his status post cervical discectomy scar was not examined at that time.] Thereafter, the evidence of record (including the Veteran’s June 2020 Board hearing testimony) indicates worsened symptoms of this disability. On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity of the Veteran’s service-connected scar, status post cervical discectomy, as there is an indication that the condition may have worsened since his last VA examination. The examiner should consider all applicable rating criteria, as during the pendency of the instant appeal, VA revised the criteria for rating disabilities of the skin, effective August 13, 2018. See 83 Fed. Reg. 32,592-601 (Jul. 13, 2018). 9. Entitlement to a rating in excess of 40 percent (prior to June 8, 2016 and from August 1, 2016) for lumbar spine degenerative disc disease. The Veteran contends that he is entitled to a higher rating for his service-connected lumbar spine degenerative disc disease during all applicable periods. As noted above, an October 2017 rating decision granted a temporary total 100 percent rating under 38 C.F.R. § 4.30 for the Veteran’s lumbar spine degenerative disc disease, effective from June 8, 2016 (i.e., the date of his spinal fusion surgery) through July 31, 2016; therefore, the increased rating claim is moot for this period. In a January 2018 letter, the AOJ notified the Veteran of this moot period (during which a total award of benefits had been granted) and also affirmed that his increased rating claim for all other applicable periods (i.e., prior to June 8, 2016 and from August 1, 2016) remained on appeal. In the instant decision, the Board is restoring the 40 percent rating for lumbar spine degenerative disc disease, effective June 1, 2017. Therefore, the issue remaining on appeal is entitlement to a rating in excess of 40 percent prior to June 8, 2016 and from August 1, 2016 for lumbar spine degenerative disc disease. The record reflects that the Veteran most recently underwent a VA back examination in May 2017. Thereafter, the evidence of record (including the Veteran’s June 2020 Board hearing testimony, a July 2020 VA treatment record noting his request for an updated physical examination for chronic back pain, and another July 2020 VA treatment record noting pain with about 30 degrees of forward flexion in the low back) indicates worsened symptoms of this disability. On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity of the Veteran’s service-connected lumbar spine degenerative disc disease, as there is an indication that the condition may have worsened since his last VA examination. The examiner should consider all applicable rating criteria, as during the pendency of the instant appeal (and as noted above), VA revised the criteria for rating disabilities of the musculoskeletal system, effective February 7, 2021. See 85 Fed. Reg. 76453-469 (Nov. 30, 2020). 10. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy. 11. Entitlement to an initial rating in excess of 10 percent (prior to August 9, 2016) and in excess of 20 percent (from August 9, 2016) for right lower extremity radiculopathy with complex regional pain syndrome. The Veteran contends that he is entitled to higher initial ratings for his service-connected left and right lower extremity radiculopathy. During the pendency of the instant appeal, a December 2016 rating decision granted an increased 20 percent rating for right lower extremity radiculopathy with complex regional pain syndrome, effective August 9, 2016 (i.e., the date VA received the Veteran’s claim for an increased rating for such disability). Because that award did not represent a total grant of benefits sought on appeal for this issue, the claim for increase remains before the Board. AB, 6 Vet. App. at 35. The record reflects that the Veteran most recently underwent a VA back examination with lower extremity peripheral nerve testing in May 2017. Thereafter, the Veteran’s VA treatment records document that he received private treatment authorized through the Veterans Choice Program, including Doppler testing at the University of Mississippi Medical Center (UMMC) in February 2018 and June 2019 as well as vascular treatment at Baptist Hospital in August 2019 and February 2020, and that records of such treatment were scanned into VistA Imaging; on remand, viewable copies of these records should be obtained and associated with the claims file. In addition, the subsequent evidence of record (including the Veteran’s June 2020 Board hearing testimony and a July 2020 VA treatment record noting his worsening radicular symptoms related to his back) indicates worsened symptoms of these disabilities. On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity of the Veteran’s service-connected left and right lower extremity radiculopathy, as there is an indication that the conditions may have worsened since his last VA examination. 12. Entitlement to an initial compensable rating for surgical scar, status post L5-S1 spinal fusion. The Veteran contends that he is entitled to an initial compensable rating for his service-connected surgical scar, status post L5-S1 spinal fusion. The record reflects that the Veteran most recently underwent a VA back examination with scar findings noted in May 2017; at that time, it was noted that his scar was not painful. [Although the Veteran underwent a VA scar examination in May 2019, his status post L5-S1 spinal fusion surgical scar was not examined at that time.] Thereafter, the evidence of record (including the Veteran’s June 2020 Board hearing testimony, a July 2020 VA treatment record noting discomfort around this scar with Lidocaine ointment given to help, and an August 2020 brief from the Veteran’s attorney stating that this scar had been “continuously painful and uncomfortable” for the Veteran) indicates worsened symptoms of this disability. On remand, after all outstanding treatment records have been associated with the claims file, a new examination should be scheduled to ascertain the current level of severity of the Veteran’s service-connected surgical scar, status post L5-S1 spinal fusion, as there is an indication that the condition may have worsened since his last VA examination. The examiner should consider all applicable rating criteria, as during the pendency of the instant appeal (and as noted above), VA revised the criteria for rating disabilities of the skin, effective August 13, 2018. See 83 Fed. Reg. 32,592-601 (Jul. 13, 2018).   13. Entitlement to a TDIU rating. Because a decision on the remanded issues could significantly impact a decision on the TDIU rating issue, the issues are inextricably intertwined. A remand of the TDIU claim is required. See Harris v. Derwinski, 1 Vet. App. 181 (1991). The matters are REMANDED for the following actions: 1. Ask the Veteran to complete a VA Form 21-4142 for all private providers who have treated him for his claimed disabilities remaining on appeal, including from all Choice-authorized treatment providers (including UMMC and Baptist Hospital). Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s VA treatment records for the period from September 2020 to the present, as well as viewable copies of the private treatment records scanned into VistA Imaging (for his February 2018, June 2019, August 2019, and February 2020 Choice-authorized treatment visits, as referenced in the VA treatment records outlined above). Any negative search result should be noted in the record and communicated to the Veteran. 3. After all requested records have been associated with the claims file, schedule the Veteran for examinations by appropriate clinicians (or telehealth interviews if in-person examinations are not feasible) to determine the nature and etiology of any current left shoulder disability, right shoulder disability, and migraine headaches, and to determine the current severity of his service-connected fracture of left orbital floor and left zygomatic arch, cervical spine intervertebral disc disease with degenerative arthritis, left and right upper extremity radiculopathy, status post cervical discectomy scar, lumbar spine degenerative disc disease, left and right lower extremity radiculopathy, and status post L5-S1 spinal fusion surgical scar. The electronic claims file must be made available to the examiners for review in conjunction with the examinations. All necessary tests should be performed, and the results reported. (a.) For any current left shoulder disability, right shoulder disability, and migraine headaches: i. The examiner(s) must first identify all valid diagnoses of these disabilities present at any time during the pendency of the appeal period (to include pain alone which results in functional impairment of earning capacity). ii. Next, for each such disability that is diagnosed, the examiner(s) must provide an opinion as to whether it is at least as likely as not that such disability: (a) began during the Veteran’s active service (or within one year of service discharge), or is otherwise related to any incident of his military service (with specific consideration given to all pertinent STRs, his verified combat service, and his allegations of continuity of symptomatology since service); or (b) is either caused by or aggravated beyond its natural progression (i.e., any increase in severity beyond the natural progression of the condition) by these service-connected disabilities: (1) lumbar spine degenerative disc disease (for any left shoulder disability and migraine headaches), (2) cervical spine intervertebral disc disease with degenerative arthritis (for any left shoulder disability, right shoulder disability, and migraine headaches), (3) left upper extremity radiculopathy (for any left shoulder disability), (4) right upper extremity radiculopathy (for any right shoulder disability), (5) fracture of left orbital floor and left zygomatic arch (for any migraine headaches), and (6) PTSD (for any migraine headaches). iii. Finally, for any manifestations that are not associated with a diagnosis, the examiner(s) must provide an opinion as to whether such manifestations represent an undiagnosed illness (where signs or symptoms cannot be attributed to known medical diagnoses) or a medically unexplained chronic multisymptom illness related to the Veteran’s verified service in the Southwest Asia theater of operations. (b.) For the Veteran’s service-connected fracture of left orbital floor and left zygomatic arch, cervical spine intervertebral disc disease with degenerative arthritis, left and right upper extremity radiculopathy, status post cervical discectomy scar, lumbar spine degenerative disc disease, left and right lower extremity radiculopathy, and status post L5-S1 spinal fusion surgical scar, all pertinent symptomatology and findings must be reported in detail. Any appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose, if possible. i. In conjunction with the neck and back examination(s), the examiner(s) should provide a medical opinion addressing any functional impairment (including the degree(s) of any additional range of motion loss) caused by any flare-ups or repeated use over time for these disabilities. If the examiner(s) opines that he or she cannot offer an opinion as to additional functional loss during flare-ups or after repeated use over time without resorting to speculation based on the fact that the examination(s) was not performed during a flare-up or after repeated use over time, then the examiner(s) must elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and after repeated use over time and then estimate the Veteran’s functional loss due to flares and after repeated use over time based on all of the evidence of record, including the Veteran’s lay information, or explain why he or she cannot do so. The examiner(s) should also consider all applicable rating criteria during the appeal period (including the versions of the musculoskeletal system rating criteria effective prior to and since February 7, 2021). ii. In conjunction with the scar examination(s), the examiner(s) should consider all applicable rating criteria during the appeal period (including the versions of the skin rating criteria effective prior to and since August 13, 2018). A complete rationale for all opinions must be provided. If the clinician(s) cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician(s) must provide the reasons why an opinion would require speculation. The clinician(s) must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician(s) must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular clinician. 4. Thereafter, review the record (including all pertinent VA-generated evidence added to the claims file since the most recent SOCs), ensure that all development is completed (and arrange for any further development suggested by additional evidence received), and readjudicate the claims on appeal for entitlement to service connection for a left shoulder disability, for a right shoulder disability, and for migraine headaches, as well as the claims for higher ratings for fracture of left orbital floor and left zygomatic arch, cervical spine intervertebral disc disease with degenerative arthritis, left and right upper extremity radiculopathy, status post cervical discectomy scar, lumbar spine degenerative disc disease, left and right lower extremity radiculopathy, and status post L5-S1 spinal fusion surgical scar – followed by adjudication of the issue of entitlement to a TDIU rating (in light of the outcome of the other claims on appeal, and with consideration of whether referral of an extraschedular TDIU rating under § 4.16(b) is warranted for any period that the schedular TDIU criteria under § 4.16(a) are not met).   If any benefit sought on appeal remains denied, in whole or in part, a supplemental SOC (SSOC) must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. B. Yantz, Counsel The Board’s decision in this case is binding only with respect to the instant matters decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.