Citation Nr: 21032008 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 14-40 831 DATE: May 25, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include depression, is granted. Entitlement to service connection for a bilateral hearing loss disability is denied. As the reduction of the rating for retinopathy from 30 percent to noncompensable, effective November 1, 2017, was proper in light of clear and unmistakable error (CUE) in the June 2006 rating decision, restoration of the 30 percent disability rating as of that date is denied. REMANDED Entitlement to service connection for muscle cramping of the bilateral upper and lower extremities is remanded. Entitlement to service connection for a left elbow disability is remanded. Entitlement to service connection for a right elbow disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to a disability rating in excess of 30 percent prior to November 1, 2017 and to a compensable rating thereafter for retinopathy is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 16, 2012 is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran has an acquired psychiatric disorder, including depression, that had its onset during active service. 2. The Veteran does not have a current hearing loss disability. 3. The reduction of the disability rating for retinopathy from 30 percent to noncompensable, effective November 1, 2017, was proper. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disorder, including depression, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.104, 3.105, 3.156(a), 3.303. 2. The criteria for service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.385. 3. The criteria for restoration of a 30 percent disability rating for retinopathy effective November 1, 2017 have not been met. 38 U.S.C. §§ 1155, 5108; 38 C.F.R. §§ 3.105, 3.344 (2020); 38 C.F.R. § 4.71(a) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty with the United States Army from July 1979 to June 1992, including overseas service in the Southwest Asia theater of operations during the Persian Gulf War. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in March 2018. A transcript of the hearing is associated with the claims file. This case was most recently before the Board in June 2018, at which time the issues on appeal were remanded for additional development. The issues have returned to the Board for further appellate consideration. Additionally, the Board notes that after the Regional Office (RO) issued a June 2019 Supplemental Statement of the Case (SSOC), the Veteran filed a VA Form 10182 Decision Review Request, Board Appeal, that was signed and received in September 2019. The Veteran did not indicate whether he was requesting direct review based on the June 2019 SSOC, nor was the form filed within 60 days of the June 2019 SSOC. As such, the VA Form 10182 was not timely to opt-in to the Appeals Modernization Act (AMA) appeals process. Accordingly, the issues on appeal must continue to be adjudicated in the Legacy (non-modernized) system. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board notes that in adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § § 5107 (b); 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to service connection for an acquired psychiatric disorder, including depression The Veteran seeks service connection for an acquired psychiatric disability, including depression. During his March 2018 hearing, he testified that his symptoms of depression began in service and have continued ever since. At the outset, the Board notes that the evidence shows the Veteran has a current acquired psychiatric disability. Multiple VA treatment records from the period on appeal show complaints of and treatment for symptoms of depression, and the Veteran was diagnosed with major depression during a June 2013 VA mental disorders examination. Therefore, the Board's analysis will focus on whether the Veteran's current disability is related to service. Service treatment records (STRs) are associated with the claims file and show the Veteran reported experiencing "depression or excessive worry" on an October 1983 Report of Medical History and at his May 1992 discharge examination. The May 1992 examiner noted that the Veteran was "depressed over body pain." VA treatment records associated with the claims file since the Board's June 2018 decision include an August 1993 medical certificate showing the Veteran complained of depression and "stay[ing] tense all the time." He was referred for a psychiatric evaluation, which he underwent in February 1994. The Veteran reported that he served in the Army until 1992, when he was honorably discharged as a Sergeant First Class. He reported that prior to his deployment to Saudi Arabia, his career was "blooming" and "everything was going for [him]," but after he returned, he started to change. He divorced his wife and started engaging in impulsive behavior. He reported that he became moody, irritable, and cried easily. He began making excuses to not go to work and would go out drinking instead; eventually, he was caught driving while intoxicated on base. The Veteran reported that he became depressed and began to feel guilty about the things he had done, and he sought assistance from a chaplain. He reported being baffled by his own behavior and feeling bitter over his belief that the Army "booted" him out when he was hurting, rather than helping him. The Veteran reported that he had not been employed since leaving the military, and that he was simply not interested in doing things that he used to enjoy, such as fishing. He complained of having little energy. The examiner noted that the Veteran was administered a Minnesota Multiphasic Personality Inventory (MMPI) in September 1993, and his responses resulted in an "invalid profile which should not be interpreted." The examiner indicated that the Veteran's scores on the validity scales were "well above" that required to view the testing as invalid, and they were therefore uninterpretable. The examiner wrote, "[i]t is felt that the exaggerated profile was [the Veteran's] attempts to get others to pay attention to his plight." Nevertheless, the examiner concluded that the information obtained in the clinical interview indicated that the Veteran may be suffering from a bipolar mood disorder, and that his current episode appeared to be one of depression. The examiner diagnosed "Bipolar Disorder, Depressed." VA treatment records from July 2001 to March 2006, obtained pursuant to the Board's June 2018 remand instructions, show the Veteran complained of depression associated with fibromyalgia in September 2002 and was assessed as having "mild depression" in multiple subsequent treatment notes from the period. During a July 2003 VA hypertension examination, the examiner noted that the Veteran described a "significant amount of depression" and that he had been laid off from work. A July 2010 VA Medical Center Report of Hospitalization shows the Veteran was hospitalized for adjustment disorder. A subsequent Report of General Information documents a phone call from the Veteran, during which he reported being put into a mental ward at a VA facility in Memphis, TN due to attempting suicide. VA treatment records from the period on appeal show the Veteran reported experiencing suicidal ideation for "the past few weeks" in July 2010. At the time, he was noted to have a medical history significant for depression with comorbid medical conditions, including hypertension and fibromyalgia. He reported feeling distressed after separating from his wife of 19 years. In a December 2010 psychiatry attending note, a VA staff psychiatrist diagnosed the Veteran with major depression with psychotic features. In May 2012, the Veteran presented to the emergency room with paranoid thoughts, though he denied suicidal ideation; a diagnosis of "mental illness" was provided. In June 2012, the Veteran again presented to the emergency room, this time with suicidal ideation. He reported increased depression. The Veteran was afforded a VA mental disorders examination in connection with his claim in July 2013. The examiner diagnosed major depression, recurrent, moderate, without psychotic features. The examiner listed psychosocial and environmental problems of chronic medical issues, chronic mental illness, lack of social support, and unemployment. The Veteran reported a mental health history dating back to 1992, when he began receiving mental health care. The examiner documented a lengthy history of mental health treatment, as evidenced through available VA treatment records. The examiner determined that the Veteran's condition was less likely than not caused by his military service, noting that a record review "failed to establish a pattern of depressive problems that were present or documented during his time in or immediately after his time in the military." The examiner explained that early treatment records that were available for review focused on family and marital issues, adjustment problems, and difficulty coping with ongoing family and marital stress issues and did not indicate continuing problems associated with the Veteran's past military service. In accordance with the Board's June 2018 remand instructions, VA obtained an addendum opinion concerning the etiology of the Veteran's current psychiatric disorder, noting the Veteran's March 2018 Board hearing testimony that his symptoms started during service and had continued ever since. The examiner providing the opinion determined that there was "no basis" for any mental health issues related to the Veteran's service. The examiner acknowledged records showing "some mental health issues noted as bipolar disorder, OCD, depression, or mood disorder back in 1993, several months after veteran was discharged from the military." The examiner noted that the Veteran was prescribed medications but was "significantly noncompliant with most" and "failed to attend several appointments," raising suspicion among his psychologists that he was not being totally forthcoming regarding his issues. The examiner interpreted the 1993 and 1994 records as indicating that the Veteran did not take responsibility for his medication regimen or showing up for appointments and highlighted the 1993 MMPI that produced an invalid profile, which the examiner suggested was indicative of "possible malingering" (though the psychologist at the time did not describe it as such). The examiner did not specifically address the Veteran's March 2018 Board hearing testimony, nor did she address VA treatment records showing complaints of and treatment for depression dating back to 2002. The examiner ultimately concluded that, given the lack of diagnoses other than that provided by the July 2013 VA examiner, or those provided shortly after discharge "for which he refused to comply with treatment," it was less likely than not that his mental issues began while he was in the service. Overall, after careful review of the evidence of record, the Board concludes that the evidence is, at the very least, in equipoise on the question of whether the Veteran's current acquired psychiatric disability had its onset during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). During his March 2018 Board hearing, the Veteran testified that his psychiatric symptoms started during service and have continued ever since. The evidence of record seems to corroborate his testimony. The Veteran's STRs show he reported "depression or excessive worry" on an October 1983 Report of Medical Examination and during his May 1992 discharge examination. VA treatment records show he complained of and sought treatment for depression as far back as 1993, not long after discharge from active service. Though a subsequent February 1994 psychiatric evaluation indicated the Veteran's exaggerated responses to a September 1993 MMPI were suggestive of attempts to get others to "pay attention to his plight," the examiner ultimately provided a diagnostic impression of "Bipolar Disorder, Depressed." Subsequent VA treatment records show that the Veteran consistently complained of and sought treatment for depression and symptoms of depression (which was at times described as "chronic"), including hospitalization for attempting suicide. In reaching this conclusion, the Board acknowledges that there is evidence against the Veteran's claim, including the opinion of the June 2013 VA examiner and the April 2019 addendum opinion. However, neither the June 2013 nor the April 2019 VA examiner addressed the October 1983 Report of Medical Examination or May 1992 separation examination report showing the Veteran indicated he experienced depression or excessive worry during service. Further, the April 2019 VA examiner focused primarily on interpreting the 1993 and 1994 treatment records and did not specifically address the Veteran's contentions regarding in-service onset and chronicity of psychiatric symptoms, as requested in the Board's June 2018 remand instructions. The Board cannot assign significant probative weight to her negative opinion because her rationale disregarded the Veteran's competent and credible testimony that his depression symptoms started in service and have continued ever sincetestimony that is largely corroborated by medical evidence in the claims file. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for an acquired psychiatric disability, including depression, is warranted because the disability had its onset during active service. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The benefit sought on appeal is granted. 2. Entitlement to service connection for bilateral hearing loss The Board notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year. 38 C.F.R. §§ 3.307, 3.309(a). Organic diseases of the nervous system, including sensorineural hearing loss, are considered by VA to be chronic diseases. 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For VA compensation purposes, impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 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. 38 C.F.R. § 3.385. In this case, the Veteran asserts that service connection is warranted for a bilateral hearing loss disability caused by in-service exposure to hazardous noisespecifically, heavy artillery and high-noise machinery in the motor pool. During his March 2018 Board hearing, the Veteran testified that he had experienced symptoms of hearing loss ever since service. His wife testified that the Veteran did not hear anything she said, and that he listened to music and television at a very high volume. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran was afforded VA examinations in connection with his claim in July 2012, August 2013, and March 2019. None of the examination reports revealed hearing loss to the extent necessary to establish a current bilateral hearing loss disability for purposes of VA compensation. That is, none of the examination reports showed that the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz was 40 decibels or greater in either ear; that the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz were 26 decibels or greater in either ear; or that speech recognition scores using the Maryland CNC Speech Recognition Test were less than 94 percent. VA treatment records show the Veteran periodically reported a history of "hearing difficulty," and in March 2013 he described his hearing as "muffled"; however, the records are otherwise silent for any complaints of or treatment for a hearing loss disability. Based on the above, the Board concludes that the Veteran does not have a current diagnosis of bilateral hearing loss and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As previously discussed, the Veteran has been afforded multiple VA examinations to assess the severity of his hearing loss; none of those examinations have shown that he meets the criteria for hearing loss under 38 C.F.R. § 3.385. In reaching this conclusion, the Board acknowledges the lay statements and testimony of the Veteran and his wife concerning the nature and extent of his claimed bilateral hearing loss disability. While the Veteran and his wife are competent to describe the Veteran's symptoms, they are not competent to attest to whether such symptoms are severe enough to meet the threshold levels required to establish the presence of a disability under VA regulations. Therefore, the Board gives more probative weight to the competent medical evidence in determining that service connection is not warranted. The benefit sought on appeal is therefore denied. 3. Propriety of the reduction from a 30 percent rating to a noncompensable (0 percent) rating for service-connected retinopathy, effective November 1, 2017 In an August 2017 rating decision, the RO reduced the Veteran's retinopathy disability rating from 30 percent to noncompensable (0 percent), effective November 1, 2017, on the basis of clear and unmistakable error (CUE) in the June 2006 rating decision that assigned an increased 30 percent rating. The Veteran did not appeal the June 2006 rating decision, and it became final. As there was no change in the Veteran's overall combined evaluation due to the November 2017 rating reduction from 30 to 0 percent for retinopathy, the due process provisions of § 3.105(e) do not apply. Because the June 2006 rating decision became final, it may be revised only upon a showing that it was clearly and unmistakably erroneous. See 38 U.S.C. §§ 5108, 5109A; 38 C.F.R. §§ 3.104, 3.105, 3.156(a); Manio v. Derwinski, 1 Vet. App. 140 (1991). Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency . . . shall be final and binding . . . based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C. § 5108. The presence of CUE by VA in rendering a decision is an exception to this rule. See 38 C.F.R. § 3.105; see also 38 U.S.C. § 210(c), 7103. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. The United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether CUE is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). Therefore, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993), citing Russell v. Principi, 3 Vet. App. 313 (en banc). In this case, the June 2006 rating decision increased the rating assigned for the Veteran's retinopathy from 0 percent to 30 percent under 38 C.F.R. § 4.84a, Diagnostic Code 7101-6080 (2005). Under the regulations then in effect, Diagnostic Code 6080 provided ratings commensurate with level of impairment of visual field. Note (2) to the Diagnostic Code provided that "[d]emonstrable pathology commensurate with the functional loss will be required." In the June 2006 rating decision, the RO explained that the Veteran's rating was increased to 30 percent disabling based on review of a November 2005 VA examination report and Goldmann visual field charts from March 2006, which showed average concentric contraction to 40 degrees in the left eye and 38 degrees in the right eyeimpairment of visual field commensurate with a 30 percent disability rating under Diagnostic Code 6080. In an April 2017 decision, the RO informed the Veteran that it was proposing to reduce the rating assigned for retinopathy from 30 percent to 0 percent. The basis of the reduction was not that the Veteran's retinopathy had improved, but rather that the prior increased rating was granted based on findings of nonservice-connected glaucoma, as opposed to service-connected retinopathy. In its April 2017 decision and the October 2017 statement of the case (SOC), the RO explained that the award of a 30 percent rating assigned by the 2006 rating decision was a clear and unmistakable error because the increased rating was based on findings of glaucoma only, for which the Veteran is not service-connected. In this regard, the Board notes that neither the November 2005 VA eye examination report or April 2006 addendum mention retinopathy; rather, the examiner's impressions indicated that the Veteran was "primary open angle glaucoma suspect," that "[n]erves are suspicious OU for glaucoma," and that prior Humphrey visual fields showed "diffuse decrease OU." The April 2006 addendum provided additional Goldmann visual field test findings and reiterated that the Veteran was "primary open angle glaucoma suspect." The Board notes that a July 2003 VA hypertension examination report indicated that the Veteran reported "blurry vision" in connection with hypertension, and the examiner listed "probable retinopathy . . . related to hypertension" as a diagnostic impression. However, there were no findings related to visual impairment. VA treatment records from the period do not document visual impairment attributed to retinopathy. In short, while the evidence of record at the time of the June 2006 rating decision indeed showed visual impairment commensurate with a 30 percent disability rating under Diagnostic Code 6080, that visual impairment was never attributed to retinopathythe only eye condition for which service connection was in effect at the time. Therefore, after careful review of the facts available to the RO at the time of the June 2006 rating decision and the law in effect at the time, the Board finds that the RO, in awarding a 30 percent rating in its June 2006 decision, did so based on an error in fact, and that this error manifestly changed the outcome of the decision. Indeed, the Veteran was afforded a 30 percent disability rating based on visual impairment that had not been attributed to his service-connected disability. There is no indication that the RO, at the time, was merely weighing the available evidence and resolving doubt in the Veteran's favor; rather the rating decision appears to simply be based on an inaccurate reading of the medical evidence of record at the time. Accordingly, the RO's reduction of the Veteran's rating to 0 percent from 30 percent, effective November 1, 2017, was proper. As the reduction from a 30 percent rating to a noncompensable (0 percent) rating for service-connected retinopathy, effective November 1, 2017, was proper, restoration of the 30 percent rating as of that date is denied. REASONS FOR REMAND Regrettably, for the reasons discussed below, the remaining issues on appeal must be remanded for additional development. 1. Entitlement to service connection for weakness and cramps in the bilateral upper and lower extremities The Veteran seeks service connection for weakness and cramps in the bilateral and upper and lower extremities. During his March 2018 Board hearing, the Veteran testified that he started experiencing cramps in his legs, arms, "everywhere," when he was prescribed cholesterol medication. He testified that his cramps subsided (without going away completely) after he stopped taking the medication. The Veteran also testified that he believed his cramps may be connected to his service-connected fibromyalgia. During a July 2012 VA muscle injuries examination, the Veteran reported muscle cramps in his bilateral hands and legs that occurred on and off for the past five years, at least three times per month, which may last for a few hours. The Veteran reported that the cramps were mostly self-resolving in nature, but he said he would sometimes use rubbing alcohol to massage it. The examiner noted that the Veteran was service connected for hypertension, which he had treated with medications including Lisinopril and Hydrochlorothiazide (HCTZ) for years. The Veteran reported that he was told by a nurse that HCTZ can cause muscle cramps, but he had never spoken to his provider about changing his medications. The examiner noted that the Veteran was diagnosed with fibromyalgia in the 1990s "for hurting all over and specially [the] legs." The examiner found that the Veteran did not currently have, nor had he ever been diagnosed with a muscle injury. Muscle strength testing was normal, and there were otherwise no signs or symptoms attributable to a muscle injury. The Veteran reported that he would use a cane to get around due to pain in the legs related to arthritis and fibromyalgia. The examiner found that the Veteran's claimed muscle cramps and weakness did not impact his ability to work. The examiner determined that the Veteran's claimed condition was less likely than not proximately due to or the result of hypertension. The examiner explained that polyuria is expected from the Veteran's hypertension medications, and that patients receiving HCTZ should be monitored closely for signs of electrolyte imbalance, including hypokalemia and hypomagnesemia, which can lead to symptoms of muscle cramps. However, the examiner noted that the Veteran's electrolyte values were normal, based on a May 2012 blood specimen collection. The examiner concluded that the Veteran's temporary muscle cramps in the presence of normal electrolytes were less likely as not secondary to his antihypertensive medications. The Veteran was afforded another VA muscle injuries examination in August 2013. The examiner indicated that the Veteran did not currently have, nor had he ever been diagnosed with a muscle injury. However, the examiner went on to indicate that the Veteran had a non-penetrating muscle injury, noting that the Veteran had a history of "bilateral foot pain from marching in the military" and that he now had cramping at night. The examiner also indicated that the Veteran had an injury to a muscle group of the shoulder girdle or arm. Muscle strength testing revealed less than normal strength in bilateral hip flexion. The examiner noted that the Veteran regularly used a cane "for foot pain" and indicated that the Veteran's muscle injuries did not impact his ability to work. In the remarks section, the examiner wrote that the Veteran's bilateral foot strain from marching in the military was a "self-limited diagnosis" that should have resolved six weeks from when it occurredthough he did not indicate whether the condition had, indeed, resolved. The examiner further wrote, "[i]t is impossible that this patients left arm, right arm left leg and right leg weakness were due to hypertension. His exam is normal." Overall, the Board finds that the July 2012 and August 2013 examination reports and opinions, especially when considered together, are inadequate for rating purposes. First, the nature and extent of the Veteran's disability picture is unclear. The Veteran has competently described experiencing significant symptoms of a disability during the period on appealspecifically, muscle cramps in his bilateral hands and legs that occurred on and off, at least three times per month, lasting a few hours at a time. While the July 2012 VA examiner found that the Veteran did not have any muscle injuries, the August 2013 examiner's report suggests the Veteran has bilateral foot cramping and a right shoulder muscle injury. However, the exact nature of the Veteran's muscle weakness and cramping disability, including the extent to which it overlaps with his service-connected fibromyalgia, remains unclear. Further, neither the July 2012 nor the August 2013 VA examiners adequately addressed the relationship between the Veteran's claimed disability and service or service-connected disability. For instance, the July 2012 VA examiner's opinion was based primarily on a single May 2012 blood specimen collection. Therefore, remand is warranted to afford the Veteran a new VA examination to adequately determine the nature and etiology of his disability. 2. Entitlement to service connection for right and left elbow tendonitis The Veteran contends that service connection is warranted for right and left elbow disabilities. During his March 2018 Board hearing, the Veteran testified that his elbows are "always in pain," to the point that he is unable to lift even a small cup of water. The Veteran attributed his elbow pain to heavy lifting during active service. To date, the Veteran has not been afforded a VA examination to determine the nature and etiology of his claimed right and left elbow disabilities. The Board notes that the evidentiary threshold is low for determining whether a VA examination is necessary for adjudicating a service connection claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, given the Veteran's contentions regarding the nature of his claimed right and left elbow disabilities and their relationship to service, the Board finds that remand is warranted to afford the Veteran a VA examination. 3. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran asserts that he has a lumbar spine disability that is related to service. During his March 2018 Board hearing, the Veteran attributed his current disability to wear and tear he sustained doing heavy lifting during active service. He testified that he would report his back pain at the clinic. The Board notes that STRs show the Veteran was treated for back pain in February 1991, during active service, though he denied recurrent back pain during his May 1992 separation examination. The Veteran has been diagnosed with a lumbar spine disability during the period on appeal. A June 2013 examiner diagnosed "chronic low back pain" and an April 2015 MRI impression showed a moderate-sized herniated disc and minor degenerative changes. The June 2013 VA examiner provided a negative nexus opinion but did not explain the basis for his opinion. The Veteran was afforded another VA examination in May 2019, during which he was diagnosed with degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). The Veteran reported that his disability had its onset in 1990. Nevertheless, the examiner determined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner acknowledged evidence of in-service treatment for low back pain but determined that there was no evidence of chronicity of care and/or treatment after the injury. The examiner wrote that the Veteran had normal MRI findings in 2014 and was then diagnosed with a herniated disc in 2015, but there was no relationship between his current conditions and his complaints of lower back pain during active service. After careful review of the examination reports, opinions, and evidence of record, the Board finds that remand is warranted to obtain an addendum opinion concerning the etiology of the Veteran's currently diagnosed lumbar spine disability. In her negative nexus opinion, the May 2019 examiner did not mention the June 2013 diagnosis of "chronic low back pain," nor did she address VA treatment records showing complaints of back pain in September 2005 and in March 2013, when the Veteran reported that his back pain had a duration of 20 yearswhich would date to within a year of discharge from active service. Moreover, while the examiner acknowledge that the Veteran attributed his disability to "wear and tear" during active service, she did not fully address the Veteran's specific contention that the wear and tear caused by in-service heavy lifting and training led to development of his current disability. For these reasons, the Board finds that an addendum opinion is needed. 4. Entitlement to a disability rating in excess of 30 percent prior to November 1, 2017 and to a compensable rating thereafter for retinopathy The record indicates that the Veteran's service-connected retinopathy may have worsened since his most recent VA eye examination. The Board notes that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In this case, during his March 2018 Board hearing, the Veteran's wife testified that the Veteran's vision had gotten "way worse." The Veteran was most recently afforded a VA eye examination in June 2013, during which the examiner noted a diagnosis of retinopathy associated with hypertension. The examiner found that the Veteran had contraction of a visual field, but he did not attribute it to an eye condition. Indeed, the examiner left the "eye conditions" section of the examination report blank. Given the evidence suggesting the Veteran's retinopathy has worsened, as well as the inadequacy of the June 2013 VA examination report, the Board finds that the Veteran should be afforded another VA eye examination to determine the severity of his disability. 5. Entitlement to a TDIU prior to May 16, 2012 In a June 2019 rating decision, the RO granted the Veteran's claim for a TDIU effective May 16, 2012the day following the date the Veteran last worked, according to his formal application for a TDIU. The application indicates the Veteran was employed as a cleaner at a casino prior to that date. However, the Veteran's employment does not necessarily foreclose the possibility of an award of a TDIU during his period of employment, since a finding of marginal employment can establish entitlement to a TDIU. Marginal employment generally shall be deemed to exist when a claimant's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Employment may also be established, on a facts found basis, when earned annual income exceeds the poverty threshold, including, but not limited, to employment in a protected environment such as a family business or sheltered workshop. In this case, the Veteran's formal application for a TDIU suggests he was working less than 30 hours per week, earning $700.00 per month, which would have been less than the poverty threshold for one person at the time. However, there is otherwise no evidence regarding the Veteran's income during the appeal period. Therefore, on remand, the RO should request the Veteran furnish information necessary for VA to verify his income and properly assess whether his employment prior to May 16, 2012 could be characterized as marginal for purposes of eligibility for a TDIU. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any disability manifested by weakness and cramping of the bilateral upper and lower extremities. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner must answer the following questions: (a.) Is there any diagnosed disease or condition, independent of the Veteran's already service-connected fibromyalgia, which accounts for the reported symptomatology of weakness and muscle cramps of the bilateral upper and lower extremities? (b.) If so, is the disability at least as likely as not (probability of 50 percent or greater) related to active service? (c.) If not related to service on a direct basis, the examiner should address whether such disability is due to or caused by a service-connected disability, to include fibromyalgia and/or hypertension, to include medications taken therefore; or whether the disability was aggravated by the Veteran's service-connected disabilities, to include medications taken therefore. The Board notes that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). A complete rationale for all opinions expressed shall be provided. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right and left elbow disabilities. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that such a disability had its onset in service or is otherwise etiologically related to active service. A complete rationale for all opinions expressed shall be provided. 3. Return the claims file, including a copy of this remand, to the April 2019 VA examiner for an addendum opinion concerning the nature and etiology of the Veteran's claimed lumbar spine disability, including degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). If the examiner who drafted the April 2019 examination report is unavailable, the opinion should be rendered by another appropriate medical professional. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner is asked to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's current lumbar spine disability had its onset in service or is otherwise etiologically related to active service. In providing an opinion, the examiner's attention is directed to the Veteran's lay statements that his disability was caused by "wear and tear" from heavy lifting and training during active service; a June 2013 diagnosis of "chronic low back pain"; and VA treatment records showing complaints of back pain in September 2005 and in March 2013, when the Veteran reported that his back pain had a duration of 20 yearswhich would date to within a year of discharge from active service. A complete rationale for all opinions expressed shall be provided. 4. Schedule the Veteran for a VA eye examination to determine the current severity of his service-connected retinopathy. The electronic claims file must be made available to the examiner for review in conjunction with the examination. All necessary tests should be performed, and the results reported. The examiner should specifically identify the disease, injury, or other pathologic process responsible for any visual impairment found and describe in detail all pertinent symptomatology and findings. Any appropriate Disability Benefits Questionnaire (DBQ) should be filled out for this purpose, if possible. The examiner is advised that the Veteran is competent to report symptoms, and that the Veteran's reports must be considered in formulating the opinion. 2. Inform the Veteran that if he wishes to be considered for a TDIU prior to May 16, 2012, he must provide further information about his employment, to include his annual salary from approximately July 2011 to May 16, 2012. (Continued on Next Page) 3. After completing the requested actions, as well as any additional action deemed warranted, readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. T. Raftery, 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.