Citation Nr: 22017791 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 19-21 165 DATE: March 26, 2022 ISSUES 1. Entitlement to an increased rating for right knee patellofemoral pain syndrome, currently rated as 10 percent disabling. 2. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness due to Southwest Asia Gulf War period service, and as secondary to service-connected other specified depressive disorder with anxiety disorder. 3. Entitlement to service connection for headaches, to include as due to an undiagnosed illness due to Southwest Asia Gulf War period service. 4. Entitlement to an increased disability rating for other specified depressive disorder also diagnosed with other specified anxiety disorder, currently rated as 30 precent disabling. 5. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness due to Southwest Asia Gulf War period service, and as secondary to service-connected lumbar strain disability. 6. Entitlement to an increased disability rating for a lumbar spine disability, currently rated as 20 percent disabling. 7. Entitlement to an increased rating for left knee patellofemoral pain syndrome, currently rated as 10 percent disabling. 8. Entitlement to a temporary total disability evaluation due to lumbar spine surgery. ORDER The appeal on the issue of entitlement to an increased rating for right knee patellofemoral pain syndrome, currently rated as 10 percent disabling is dismissed. Entitlement to service connection for obstructive sleep apnea (OSA) is granted. Entitlement to service connection for headaches is granted. Entitlement to an increased disability rating for other specified depressive disorder also diagnosed with other specified anxiety disorder, currently rated as 30 precent disabling is denied. REMANDED Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness due to Southwest Asia Gulf War period service, and as secondary to service-connected lumbar strain disability is remanded. Entitlement to an increased disability rating for a lumbar spine disability, currently rated as 20 percent disabling is remanded. Entitlement to an increased rating for left knee patellofemoral pain syndrome, currently rated as 10 percent disabling is remanded. Entitlement to a temporary total disability evaluation due to lumbar spine surgery is remanded. FINDINGS OF FACT 1. At the October 2021 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeal related to entitlement to entitlement to an increased rating for right knee patellofemoral pain syndrome, currently rated as 10 percent disabling. 2. The competent, credible, and probative lay and medical evidence that supports the claim that the Veteran's obstructive sleep apnea (OSA) was manifest in service is in "approximate balance" or "nearly equal" to the evidence standing against it. 3. The competent, credible, and probative lay and medical evidence that supports the claim that the Veteran's headaches were manifest in service is in "approximate balance" or "nearly equal" to the evidence standing against it. 4. For the entire period on appeal, other specified depressive disorder also diagnosed with other specified anxiety disorder, is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as depressed mood and anxiety; with no impaired memory, judgment, panic attacks, or suicidal ideation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to entitlement to entitlement to an increased rating for right knee patellofemoral pain syndrome, currently rated as 10 percent disabling have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. Resolving reasonable doubt in the Veteran's favor, obstructive sleep apnea (OSA) was incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. Resolving reasonable doubt in the Veteran's favor, headaches were incurred in service. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for the assignment of an initial disability evaluation in excess of 30 percent for service-connected other specified depressive disorder, also diagnosed with other specified anxiety disorder, have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9413-9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2004 to October 2013. This matter is before the Board of Veterans Appeals (Board) on appeal from August 2017, October 2017, and May 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in October 2021. A copy of the hearing transcript has been associated with the claims file. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). At the October 2021 hearing, the Veteran through his attorney raised duty to assist and other evidentiary matters for certain issues. We discuss them in the Remand section below. The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Withdrawn Appeal Entitlement to an increased rating for right knee patellofemoral pain syndrome, currently rated as 10 percent disabling The Board incorporates its discussion from the sections above by reference. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55 (a). Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55 (b)(1). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. Withdrawal does not preclude filing a new Notice of Disagreement and, after a Statement of the Case is issued, a new Substantive Appeal, as to any issue withdrawn, provided such filings would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 19.55 (c). The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105 (d). Recently, at the October 2021 hearing, the Veteran through his attorney informed the Board that he wished to withdraw his appeal related to the claim for entitlement to an increased disability rating for right knee patellofemoral pain syndrome. See October 2021 hearing transcript, p. 4. The Veteran confirmed the issue and his intent to withdraw it from consideration, "Yes, sir." Id. at p. 5. The VLJ accepted withdrawal of this issue. Accordingly, the Board does not have jurisdiction to review this issue on appeal. Therefore, this issue on appeal is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Service Connection To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310 (b). We note that headaches deriving from cardiovascular-renal disease are chronic diseases, and as such, additional presumptive theories of entitlement are relevant in addition to direct service connection. See 38 C.F.R. §§ 3.303, 3.307, 3.309. Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. The provisions of 38 C.F.R. § 3.303 (b) only apply to diseases recognized by VA as "chronic." See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.309(a). Chronic diseases that become manifest to a degree of 10 percent or more within one year of termination of active duty may be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For a Veteran who had active service in the Southwest Asia theater of operations during the Persian Gulf War (a Persian Gulf veteran), presumptive service connection may be established for a qualifying chronic disability, which specifically includes a medically unexplained chronic multi-symptom illness that is defined by a cluster of signs or symptoms, such as fibromyalgia. See 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(3). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317 (a)(4). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317 (b). As noted above, service connection may be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Here, the Veteran's DD-214 specifically shows that the Veteran participated in Operation Iraqi Freedom, reflecting service in the Southwest Asia theater of operations. 38 C.F.R. § 3.317 (e)(1). If signs or symptoms have been medically attributed to a diagnosed (rather than undiagnosed) illness, the Persian Gulf War presumption of service connection does not apply. VAOPGCPREC 8-98. Notwithstanding the foregoing presumptive provisions, the Veteran is not precluded from establishing service connection for a disease averred to be related to Gulf War service, as long as there is proof of such direct causation. See generally Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. The Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 1. Entitlement to service connection for a sleep disorder, to include as due to an undiagnosed illness due to Southwest Asia Gulf War period service, and as secondary to service-connected other specified depressive disorder with anxiety disorder The Board incorporates its discussion from the sections above by reference. Sleep apnea is defined as transient periods of cessation of breathing during sleep. The two primary types are central sleep apnea and obstructive sleep apnea. See Dorland's Illustrated Medical Dictionary, 118 (31st ed. 2007). Obstructive sleep apnea is defined as sleep apnea resulting from collapse or obstruction of the airway with the inhibition of muscle tone that occurs during REM sleep. Id. By way of background, the Service Treatment Records (STRs) include a March 15, 2008 Post Deployment Health Assessment from the Veteran's tour in Iraq, still years before separation. The Veteran denied trouble breathing. He did not indicate in the affirmative or negative for any sleep problems. Later, the STRs include a Periodic Health Assessment from April 2013, not long before separation. It shows a notation related to the knee. Under "Any other current health concerns?" It reads "PT STATES NO OTHER HEATLH CONCERNS." (capitalization in original.) In another STR document is a Separation/ Retirement Physical cover page. It is from July 2013. There is a checked box for a Periodic Health Assessment (PHA). On page 5 of 75 the Veteran lists numerous claimed impairments at separation. He endorsed frequent trouble sleeping. He wrote below that he can't keep normal sleep patterns. Next, the Veteran was afforded an April 2018 VA Gulf War General Medical Examination. It reads in part, "Gulf. Obstructive sleep apnea, GERD and lumbosacral spine radiculopathy are not presumptive conditions due to Gulf War exposure." Later in the same document is a sleep apnea Disability Benefits Questionnaire (DBQ). The medical history reads: Due to excessive snoring and stopping breathing asked provider for sleep study. Records indicate results of PSM of 3/24/2018 were positive for Adult Obstructive Sleep Apnea with recommendation for CPAP and weight loss. There is a diagnosis of obstructive sleep apnea from March 2018. Next, the Veteran submitted a set of lay statements, received in June 2019. First is a statement from D. P., who was deployed to Afghanistan and shared a room with the Veteran. D. P. recounted that the Veteran often had long periods of loud snoring. The Veteran stopped breathing at one point, took a deep breath, and then began snoring again. Next, is a similar June 2019 statement from L. Y. He was also a roommate in Afghanistan during the 2012-2013 deployment. He witnessed multiple occasions of the Veteran's very loud snoring followed by periods of silence when the Veteran appeared to stop breathing. These were followed by a strong gasp for breath. Later, at the October 2021 hearing, the Veteran testified regarding sleep apnea. The Veteran's attorney clarified: Perfect. Well I thank you for that. And again, the reason there is the Veteran, of course, filed for sleep disorder, but he is in fact diagnosed with sleep apnea, which of course, again, is a diagnosed condition, so it doesn't come, you know, under the Gulf War umbrella. And so, really that one, again, the medical I'm getting a medical opinion, so the medical opinion can sort it out, but I would look at things like weight gain, perhaps, from service connected conditions, as well as, potentially, even the psychiatric, you know, kind of connection to his psychiatric condition. And again, we'll let the medical experts sort that out. God knows I'm not qualified. But those are the two theories, I think, that the medical expert will look at. So that's where we are in terms of the sleep issue, which again, is sleep apnea. See October 2021 hearing transcript, pp. 7-8. Later, in December 2021, VA received a private medical opinion from Dauphin Orthopedics and Dr. J. M. D., M.D. It shows that it is for sleep apnea secondary to depressive disorder. Dr. D. recites the Veteran's medical history in the claims file, though does not describe an in-person examination. He notes a file review, including that the Veteran began receiving mental health treatment in 2007, which is during service. The Veteran began taking 80 mg of Prozac per day during and after separation. Next, the private consultant highlights that the lay buddy statements establish that it is no longer true that there was no sleep apnea in service because "we now have direct evidence of sleep apnea at least historically." This is followed by a positive nexus opinion phrased in terms of secondary service connection. It begins in part: It is my opinion that as likely as not his obstructive sleep apnea is secondary to his anxiety disorder. Anxiety not only encompasses depression but also includes features of the anxiety including nighttime worrying, loss of sleep and fear of the upcoming day ("anticipatory anxiety"). This connection is supported by more and more studies as the years pass. The opinion is followed by citations to scholarly articles. However, this is not professionally produced with full citations to those articles. Additional VA and private treatment records are substantially the same. The Veteran contends that he is entitled to service connection for obstructive sleep apnea (OSA). The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to provide evidence of some symptoms of obstructive sleep apnea, such as difficulty sleeping and gasping for breath, though not an actual "apnea" because one must be awake to observe such. He is competent to report that he had difficulty breathing in service. Other lay persons are competent to report symptoms and sleep difficulties that the Veteran experienced, including apneas, as such symptoms are readily apparent. Layno, supra. The Veteran is competent to relate what he has been told by a professional. The Veteran is also competent to report that his symptoms and observations were later identified by clinicians as OSA. Jandreau, supra. Here, the most probative evidence is the Service Treatment Records (STRs), the lay buddy statement history of respiratory impairment, and the April 2018 VA examination showing diagnosed OSA. First, with regard to the STRs, they show that the Veteran endorsed frequent trouble sleeping and that he cannot keep a constant sleep schedule at separation. There is no contemporaneous sleep study or diagnosis of OSA. There is a discussion on page 6 of 75 of his sleep schedule impairment. He sleeps too much or not enough. The notes also read in part, "He hasn't really been seen for his sleep." There was never any follow up by physicians at separation. We find the STRs to be the most probative evidence. Turning to the lay buddy statements, they are remarkably consistent. They establish that around 2012 to 2013, the Veteran would stop sleeping at night and wake up gasping. The statements are from roommates, in other words, individuals who would be around the Veteran while sleeping. They are competent to the extent they are observing symptoms, though not to formally diagnose OSA. The Board has no basis to question the credibility of the lay observations. We assign them substantial probative weight. The April 2018 VA examiner later diagnosed obstructive sleep apnea. We find this to be probative. Turning to the December 2021 private medical opinion from Dr. J. M. D., it is not determinative by itself. It paints a picture of various theories of the etiology of the Veteran's claimed OSA. Still, the medical opinion was not offered following a complete physical examination or even an interview of the Veteran. The private consultant fails to fully cite to scholarly literature. A medical opinion is adequate when it is based upon consideration of the Veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). The positive nexus opinion is phrased in terms of secondary service connection to anxiety, while above it the discussion centers around lay statements establishing an onset in service. In the anxiety section, the consultant describes sleep apnea as a possible component of the overall anxiety disorder. Considered wholistically, this medical opinion presents various theories of entitlement with a positive nexus to service, but an inconclusive specific etiology. Therefore, we assign diminished probative weight to this private consultant's opinion. The Board has sympathetically considered the October 2021 hearing testimony. As counsel points out, diagnosed OSA does not fall under the "Gulf War umbrella." As such the Gulf War examination's negative medical opinion is applicable to consideration of a direct theory of entitlement. See October 2021 hearing transcript, pp. 7-8. At the very least, the competent, credible, and probative lay and medical evidence that supports the claim that the Veteran's obstructive sleep apnea (OSA) was manifest in service is in "approximate balance" or "nearly equal" to the evidence standing against it. See Lynch, supra. We have assigned the most probative weight to the Service Treatment Records (STRs). The probative lay statements establish sleep impairment in service, eventually identified as OSA years later. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's obstructive sleep apnea (OSA) was incurred in service. He has had this disability continuously since service. We note the consistency of the lay buddy reports and Veteran's complaints at separation. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In summary, service connection for obstructive sleep apnea (OSA) is granted. 38 C.F.R. § 3.303 (d). 2. Entitlement to service connection for headaches, to include as due to an undiagnosed illness due to Southwest Asia Gulf War period service The Board incorporates its discussion from the sections above by reference. By way of background, the Service Treatment Records (STRs) include a March 2008 Post-Deployment Health Assessment (PDHA). The Veteran endorsed that he is still bothered by headaches. He denied sick call or a profile. The section about problems beginning or getting worse is left blank for all ailments. Later in the July 2013 Separation / Retirement Physical, located on page 5 of 75 of the stockpile of STRs, the Veteran endorsed several conditions at separation. The Veteran documented frequent or severe headaches. On page 6, it shows that headaches happen three to four times per week that last from 45 minutes to a couple of days. Next, the same April 2018 VA Gulf War General Examination contains a limited medical opinion. It reads, "The veteran's headaches had onset prior to deployment to the Gulf." The related Headaches DBQ shows a diagnosis of migraine headaches including migraine variants from 2010, which would be during service. The medical history reads: States when transitioning from duty station in North Carolina to California started having headaches which began in approximately 2010. States was never seen for it and states then when left for Afghanistan headaches became worse in severity. States when in Afghanistan headaches got worse to being almost debilitating and also began having neck stiffness and nausea with it as well. Next, the Veteran provided substantially similar testimony at the October 2021 hearing. The Veteran's attorney asserted: Then headaches; we move on to headaches, Your Honor, and as you said, they have been filed as to include secondary to service in the Gulf. The issue that's happened, however, in the file, is that they've only been looked at as, really, related to the Gulf. And if we go back to the Veteran's service treatment records, starting in as early as '07, while he was on active duty, he had complaints of headaches. The first looks to be in January of 2007, and then even in his post-deployment health assessment in March of 2008, he said he is still bothered by very bad headaches. See October 2021 hearing transcript, pp. 6-7. The Veteran affirmed that they began around 2007 and he now requires a "cocktail" of over the counter medications to control them. See October 2021 hearing testimony, pp. 27-28. He confirmed that headaches have been continuous since 2007 and 2008. They have gotten progressively worse. Id. at pp. 29-30. Additional VA and private treatment records are substantially the same. The Veteran contends that he is entitled to service connection for headaches. The Veteran is competent to report experiencing headaches beginning in 2007. We note the constancy of his lay reports. Layno, supra. He is competent to relate that he was diagnosed with migraine headaches, as documented in the April 2018 VA headaches Disability Benefits Questionnaire (DBQ). See Jandreau, supra. Here, the most probative evidence is the STRs and the Veteran's own lay reported history of head pain, to the extent it is competent. First, the Veteran has endorsed headaches in key documents throughout service. He endorsed them in the 2008 Post-Deployment Health Assessment. He endorsed them at separation in 2013. He has continued to pursue his appeal. We assign the most probative weight to the contemporaneous treatment records, including the STRs. Meanwhile, the Veteran has continued to report the onset of headaches in 2007, progressively worsening since then. His lay statements are consistent with the contemporaneous treatment records, and we find them to be credible. He has continued to take a home-made medication "cocktail" for them, which still results in impaired functioning. We assign substantial probative weight to his lay statements, including the October 2021 hearing testimony. We also considered counsel's argument in the October 2021 hearing testimony as it relates to the April 2018 VA examination. As counsel points out, headaches were only considered for nexus opinion purposes with respect to Gulf War service. See October 2021 hearing transcript, pp. 6-7. Still, the related DBQ is probative in establishing a concrete diagnosis of migraine headaches and a date of diagnosis of 2010. Although later than the Veteran reports, this is still during service, and the Veteran has described a worsening since their onset. Therefore, we assign moderate probative weight to the April 2018 VA examination results. At the very least, the competent, credible, and probative lay and medical evidence that supports the claim that the Veteran's headaches were manifest in service is in "approximate balance" or "nearly equal" to the evidence standing against it. See Lynch, supra. The Veteran continued endorsing headaches on two significant documents in the 2008 PDHA and 2013 separation examination, which the Board has found to be the most probative evidence. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that it is at least as likely as not that the Veteran's headaches were incurred in service. He has had this disability continuously since service. We note the constancy of the Veteran's lay testimony. The Veteran is therefore entitled to the benefit of the doubt. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. With respect to any negative nexus as due to the Gulf War, this failed to consider a direct service connection theory of entitlement. The lack of being sent for further examination at separation does not invalidate his reported headache impairment. Therefore, service connection for headaches is granted. 38 C.F.R. § 3.303 (d). Increased Rating 3. Entitlement to an increased disability rating for other specified depressive disorder also diagnosed with other specified anxiety disorder, currently rated as 30 precent disabling The Board incorporates its discussion from the sections above by reference. In the instant case, other specified depressive disorder also diagnosed with other specified anxiety disorder is currently rated at 30 percent pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413-9410. A hyphenated DC may be used to identify the proper evaluation of a disability or a residual from disease. The first DC of a hyphenated code identifies the diagnosed disease or condition. The second DC of a hyphenated code identifies the criteria in the Schedule for Rating Disabilities used to evaluate the disability. DC 9410 and other DC's addressing psychiatric disabilities are addressed under the General Rating Formula for Mental Disorders. Ratings are assigned according to the manifestation of particular symptoms. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A rating of 100 percent is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit stated that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. The such symptoms as language means for example, and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran and his attorney assert that the 30 percent rating for PTSD does not accurately depict the severity of the disability. They contend that the Veteran is entitled to an increased disability rating. Generally, the Veteran is competent to report his feelings. He is competent to report that he has been diagnosed with other specified depressive disorder also diagnosed with other specified anxiety disorder. The Veteran competently endorsed symptoms of difficulties related to his mood, difficulty sleeping, social interaction, and employment history. The Board assigns significant probative weight to the Veteran's lay reports of his symptoms, including those exhibited at the time of the VA examinations. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Other specified depressive disorder also diagnosed with other specified anxiety disorder is currently rated at 30 percent under Diagnostic Code (DC) 9410, 38 C.F.R. § 4.130. The effective date of the initial award of service connection is October 31, 2016, the date VA received the Veteran's intent to file a claim for service connection. The August 2017 rating decision granted this service connection claim and assigned the 30 percent disability rating. This was based upon occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms of depressed mood and anxiety. A higher evaluation is not warranted unless there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The weight of competent lay and medical evidence indicates that a higher evaluation is not warranted. By way of evidentiary history, the Veteran was most recently afforded a June 2017 VA Mental Disorders examination with Disability Benefits Questionnaire (DBQ). The VA examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a psychological examination. The VA examiner indicated that the Veteran's level of impairment is best summarized by, "Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation." Next, the VA examiner asked the Veteran about his post-military social history: Since being out of the service, veteran reported he is still close to his brother. Veteran indicated he and his mother are in contact every few months. Veteran reported that he is living with a female friend (named Morgan, they used to be in a relationship, but now are just friends). Veteran reported that they stay together for the kids, as they have a 1-year-old daughter together, and she has an 8-year-old son that lives with them For occupational history, the VA examiner documented in part: Veteran indicated he is currently going to aeronautical school (Embry-Riddel). He started this in January 2014. He is pursuing a technical management degree, with an emphasis on aviation. Veteran reported that he is now no longer able to do the physical labor part of the job of aviation mechanics. Veteran reported that back and shoulder problems, and a knee that "gives out" get in the way. Veteran stated, "I tried to push through it, but the more I did the worse it got." Veteran reported that he plans to start the Vocational Rehabilitation program at the VA at the beginning on 2018. He indicated that he wants to go ahead and graduate from Embry-Riddel before starting something new. Veteran indicated he hopes to pursue a commercial pilot license. For mental health history, the VA examiner described: He reported he gets pretty easily overwhelmed. He indicated he doesn't have the angry outbursts, but that he "shuts down" at times. He reported he sometimes gets anxious and fidgety. Veteran reported sometimes he gets overwhelmed at home when he sees the sink full of dishes, and the kitchen a mess. He indicated he cognitively knows that there is a easy fix for this, but that he struggles in the moment. Veteran reported he also feels anxious in large crowds, new places, loud situations, etc. He reported that anxiety has gotten worse since getting out of the military. Veteran reported that after getting back from Iraq, he started experiencing more anxiety. (Feeling a heightened level of consciousness or alertness, which became a "new normal" for him. Veteran reported he continues to experience this now.) Veteran reported he sometimes experiences anxiety attacks (shortness of breath, can't control his emotion and "can't bring self back down", sweaty, reported his thoughts "go really erratic"). Veteran reported that he sometimes has nightmares, he indicated that recently the neighbors lighting off fireworks hasn't helped. He indicated he's been prescribed "anti-nightmare medication." He reported he believes he still has nightmares 2-3 times per week, but that he is now unable to remember them as clearly. He indicated that with medication he is able to go to sleep in about 40 minutes. Veteran reported he has sought treatment at the Indianapolis VA. He indicated he's gone a few times. Veteran denied any thoughts of harming or killing himself. (emphasis added.) Next, in section 3 under symptoms, the VA examiner indicated depressed mood and anxiety. Over ten additional check boxes are left unchecked, including memory loss, panic attacks, and suicidal ideation. Next, VA received an October 2018 private Disability Benefits Questionnaire (DBQ) from J. A., Jr.. The private consultant diagnosed Bipolar I Disorder. The comments show that this is to include the current rated other specified depressive/anxiety disorder as part of Bipolar syndrome. The consultant indicated that the Veteran's level of impairment is best summarized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and or mood. However, the opinion does not show that a contemporaneous examination was performed. It only shows that all "pertinent" medical records were reviewed. Later, the private consultant implicitly reports that the Veteran actively communicated with him. The Veteran "told," "admits," and "states" various facts. It is not clear that this was an in-person examination at which time observations could be made, for example, hygiene. Furthermore, the Board observes that the private consultant lists his state of licensure in West Virginia. The mailing address for the Veteran at that time was in Indiana. At the end of the examination is a hanging paragraph alleging the Veteran exhibits "severe" impairment. The consultant claims, "This has been completely ignored by the VA due to impaired or invalid examinations." There is no further discussion of why any VA examinations are impaired or invalid. Later, the Veteran testified at the October 2021 hearing. The Veteran's attorney explained that the severity of the disability is detailed in the narrative section of the previous VA examination. The Veteran through his attorney highlighted periods of homelessness, an inability to keep relationships with a spouse or girlfriends, an inability to keep jobs, and frequent moving. See October 2021 hearing transcript, p. 6. The Veteran described how he feels: And then I'll go into, you know, bouts of unprofessional diagnosed depression, I guess. I feel like I'm depressed. I don't want to do anything. I, you know, I know I need to, but I just -- I can't bring myself to do it. So then I'll, you know, will have confrontations with management, you know, your performance is slacking, your attendance is unacceptable. You do great work when you're here, but you're just not consistently here. Id.. at p. 15. The Veteran went on to recount bolting from each town he has lived in due to the feelings of pressure and anxiety. Id. He testified that his primarily issue with jobs has been job attendance. Id. at p. 16. The Veteran summarized the severity of his condition as "pretty consistent throughout. No better, no worse --." Id. at p. 25. The VLJ responded, "-- no better, no worse. Okay. So, that's the [VA] examination we need to really focus on, then, because, you know, if you're saying that, there's no reason to get another examination." Id. Additional VA and private treatment records are substantially the same. The Veteran contends that he is entitled to an increased disability rating for other specified depressive disorder also diagnosed with other specified anxiety disorder, currently rated as 30 precent disabling. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran is competent to report feelings of anxiety leading to poor job attendance and eventually leaving a town of residence. He is competent to relate what he has been told by a professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Here, the most probative evidence is the findings of the June 2017 VA psychiatric examination and the Veteran's own October 2021 hearing testimony, to the extent it is competent. The Board finds that the weight of the evidence demonstrates that PTSD is most closely approximated by the current 30 percent rating. Generally, an evaluation of 30 percent is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). For the entire period on appeal, the Board finds that the evidence of record, taken together, describes a consistent picture of symptomatology associated with the Veteran's other specified depressive disorder also diagnosed with other specified anxiety disorder. The June 2017 VA examination identified psychiatric impairment due to two symptoms: anxiety and depression. The VA examiner compiled a narrative history of frequent moves, relationship difficulties, and feelings of being overwhelmed. Still, the Veteran attempts to stay in touch with those in his intimate circles. He was pursuing a technical management degree and aspired to obtain his commercial pilot license. He was set to begin vocational rehabilitation through VA. The VA examiner did not indicate such symptoms suicidal or homicidal ideation or panic attacks. Nevertheless, the Board has considered the narrative section, suggesting that the Veteran has a long history of moving on from towns, losing jobs due to poor attendance, and difficulty maintaining relationships. He has been able to network to find new jobs in the new towns. For example, he narrated, "I still had a little bit of reputation that I could salvage in my name on the V-22 aircraft project." See October 2021 hearing transcript, p. 20. The Veteran summarized his condition as "No better, no worse" since the last VA examination results. See October 2021 hearing transcript, p. 25. Therefore, drawing all inferences in favor of the Veteran, Board finds that the current 30 percent rating most closely approximates the Veteran's disability picture for other specified depressive disorder also diagnosed with other specified anxiety disorder. With regard to the October 2018 private consultant's opinion, it suffers from several shortcomings. First, it does not show that a contemporaneous examination was performed. This is notable given the state of licensure of the examiner in West Virginia and the Veteran's frequent moves. Even assuming an examination was conducted, though we do not concede this, the private consultant documented far more severe symptomatology than demonstrated at the June 2017 VA examination or subsequently at the October 2021 hearing. The Veteran has maintained that the severity of the disability remained about the same. Moreover, there were still not such severe symptoms as suicidal ideation. The Board observes other identified symptoms, e.g., peristent danger to self or others, and grossly inappropriate behavior, stand in stark contrast to the limited symptoms exhibited at the VA examination, in the treatment records, and confirmed at the hearing. Even if the Board accepted these as sustained symptoms, though we do not concede this, they would still only represent a snapshot in time over the appeals period. Therefore, the Board assigns diminished probative weight to the October 2018 private psychiatric examination. With respect to the arguments in the examination's conclusion, the Board will address these because this is part of an attorney-submission. The Veteran's attorney attached this examination to her letterhead, thereby incorporating the material contained therein. First, the private consultant concludes in part, "If the patient had been properly diagnosed and treated at the beginning his life may have been quite different but he says to the best of knowledge no one at the VA or anywhere else ever asked him about manic episodes." This statement ignores the medical evidence of treatment in the claims file including the separation examinations in the STRs. Second, there is an allegation that VA has "completely ignored" the Veteran. Counsel did not address, attempt to strike, or otherwise clarify this bald assertion in her cover letter. There has been no follow up by counsel in this regard. The Board notes the Veteran has been afforded VA examinations and a hearing. He is now service-connected for the psychiatric disorder and been receiving compensation for several years. At the hearing, he attested to a history of treatment through VA. The Veteran's attorney has not since requested a new VA examination or otherwise raised duty to assist errors. We have therefore proceeded to adjudicate the appeal in line with the recent October 2021 hearing. In summary, the highly probative June 2017 VA examination results and October 2021 hearing testimony depicting the Veteran's disability picture. Other specififed depressive disorder is best summarized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Throughout the appeals period, the Veteran has denied suicidal and homicidal ideation. The lay statements also do not suggest a higher rating is warranted. They do not show consistent symptoms such as impaired judgment, circumstantial, circumlocutory, or stereotyped speech, more frequent panic attacks, and neglect of hygiene. Furthermore, there is not sufficient evidence that the Veteran's anxiety, depressed mood, and sleep disturbance are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating than the current 30 percent evaluation. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). At the October 2021 hearing, the Veteran confirmed that his impairment had remained relatively the same. See October 2021 hearing transcript, p. 25. We still acknowledge psychiatric impairment leading to occupational and social impairment, which is contemplated by the compensable, 30 percent disability rating. There is no doubt to resolve. Consequently, the preponderance of the evidence is against the assignment of a rating in excess of the currently assigned 30 percent rating for other specified depressive disorder also diagnosed with other specified anxiety disorder. Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching this conclusion, the evidence persuasively stands against finding in favor of the claim in that it is not in "approximate balance" or "nearly equal" to the evidence that supports the claim. See Lynch v. McDonough, No. 20-2067 (Fed. Cir. 2021) (holding "[E]vidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other.") Although the rule does not require that the evidence be in exact equipoise, there is still no doubt to resolve in the Veteran's favor. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the claim is denied. REASONS FOR REMAND In light of the Veteran and his attorney's contentions at the October 2021 hearing, a remand is necessary to ensure that the Veteran is afforded due process, and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as due to an undiagnosed illness due to Southwest Asia Gulf War period service, and as secondary to service-connected lumbar strain disability is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, the Veteran was afforded an April 2018 VA Esophageal Conditions examination. The VA examiner identified GERD with a date of diagnosis in 2012. Unfortunately, the medical opinion in a separate document only reads, "Obstructive sleep apnea, GERD and lumbosacral spine radiculopathy are not presumptive conditions due to Gulf War exposure." Next, at the October 2021 hearing, the Veteran clarified his theory of entitlement. His attorney highlighted that the 2018 VA examination identified GERD, however, there is no positive nexus. See October 2021 hearing transcript, p. 31. Similar to the claims above, it was only considered as an undiagnosed illness in a Gulf War-centric opinion, rather than all other theories of service connection. Id. at p. 31. The Veteran's attorney summarized: Or, Your Honor, really, what I'm saying, even more than that, is it could be not -- maybe it -- because he's not ever said, hey, this started in service, or that kind of thing. It's really secondary to the medication he's had to take, because he wasn't having this problem in service. Now he's had to take all this -- these variety of medications to cope with his -- See October 2021 hearing transcript, p. 32. The VLJ responded that we need an examination to consider the various medications for the back. The Veteran reported various medications. "Off the top of my head, that I can think of, the majority of it's been constant 800 milligram ibuprofen, Percocet, hydrocodone, bags of tramadol, oral morphine." Id. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, a remand for a supplemental VA examination that considers all theories of direct and secondary service connection is warranted. 2. Entitlement to an increased disability rating for a lumbar spine disability, currently rated as 20 percent disabling is remanded. The Board incorporates its discussion from the sections above by reference. By way of background, the Veteran was last afforded a June 2017 VA back examination. The VA examiner indicated that the Veteran did not report flare ups of the back. Later, at the October 2021 hearing, the Veteran described worsening impairment. He testified: Yeah, absolutely. I spent maybe an hour, a few weeks ago, just doing light house cleaning; sweeping, mopping, putting dishes away, doing dishes. And the next day, I could barely walk. It was -- I had to force myself to walk to a point where I could sit down. Just that light of exercise, my entire life has been changed. See October 2021 hearing transcript, p. 34. He recounted one occasion where he collapsed and had to crawl to his car because he physically could not walk. Id. at p. 35. The Veteran's attorney testified that an increased rating is warranted because there is functional limitation as well as range of motion limitations during flare ups. The past VA examination did not characterize his range of motion during flare ups. Id. at p. 39. The VLJ summarized, "So then we're going to need an exam on this to do a little more -- a better focus on whether it's tantamount to an ankylosis, that is, the loss of range of motion." Id. The Veteran agreed to attend such a VA examination. Id. at p. 36. Recently, in November and December 2021, VA received ongoing private treatment records, including for the back. One such record from Hawaii Diagnostic Radiology Services shows that an August 2021 MRI of the lumbar spine without contrast disclosed back pathology. Therefore, this issue may encompass musculoskeletal disability, beyond just a lumbar muscle strain. See October 2021 hearing transcript, p. 38. VA must also consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca. The United States Court of Appeals for Veterans Claims (Court) held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why [he or] she c[an] not do so." Sharp, 29 Vet. App. at 35. Consequently, the Veteran must be afforded a new VA back examination that complies with 38 C.F.R. § 4.59 and includes all necessary information in view of the rating criteria and Sharp. 3. Entitlement to an increased rating for left knee patellofemoral pain syndrome, currently rated as 10 percent disabling is remanded. The Board incorporates its discussion from the sections above by reference. The Veteran was last afforded a June 2017 VA knee and lower leg examination with August 2017 addendum. The VA examination did not disclose any instability. Next, the August 2017 addendum reads: The symptoms described were for the Veteran's left knee. Patellofemoral pain syndrome usually causes a dull, aching pain, typically in the front and sometimes the side of the knee. This pain can be aggravated when you walk up or down stairs, kneel or squat, or sit with a bent knee for long periods of time. Occasional giving out of the knee is not typical of patellofemoral pain syndrome, but a person's description of symptoms often do not follow a text book. Later, at the October 2021 hearing, the Veteran described his left knee impairment: It could be climbing up stairs, it could be literally just standing there. There's no rhyme or reason. I'll -- like, I could be walking, and for some reason my left knee'll just kind of, you know, give out. There might -- may or may not be any pain associated with it, or there may be pain and it doesn't give out. See October 2021 hearing transcript, p. 41. The Veteran confirmed that the knee will just move outward a bit causing instability, sometimes with pain but often without pain. The VLJ accepted that the Veteran testified to a worsening of the knee disability in addition to instability. Id. at p. 42. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is evidence of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). Accordingly, the Board finds that a new VA examination is necessary to determine the current severity of the Veteran's service-connected left knee patellofemoral pain syndrome. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994), see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); VAOPGCPREC 11-95 (1995); see also 38 C.F.R. § 3.327 (a reexamination will be requested whenever there is a need to verify the current severity of a disability). Therefore, a remand for a new VA examination is warranted. 4. Entitlement to a temporary total disability evaluation due to lumbar spine surgery is remanded. The Board incorporates its discussion from the sections above by reference. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a Department of Veterans Affairs or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A temporary 100 percent evaluation may be assigned when it is established that a disability, subject to VA compensation, required surgery necessitating at least one month of convalescence, surgery with severe postoperative residuals, or treatment with immobilization by cast of one major joint or more. Entitlement to this benefit is denied because treatment of the service-connected disability did not meet any of these conditions. 38 C.F.R. § 4.30. By way of background, VA and private treatment records show that the Veteran underwent surgery on November 17, 2015 for a herniated disc and microdiscectomy. Specifically, a private treatment record from Lee Memorial Health System dated November 17, 2015 shows a preoperative diagnosis of Left L4-5 and left L5-S1 herniated discs. The Veteran underwent surgery that same day. Next, an August 2017 VA addendum medical opinion was obtained for this issue. The VA examiner provided a negative nexus opinion. The rationale is inconclusive. It shows that the Veteran's back injury was in service, and most back strains resolve in six weeks. The VA examiner goes on to cite other negative evidence essentially for service connection for the back strain disability, however, this disability is already service-connected. The VA examiner ends by identifying current back pain stemming from the disc herniation and microdiscectomy after service. This could be possible evidence of a positive nexus for the purposes of assigning at temporary total evaluation. Overall, this addendum is of little utility in deciding the specific issue at bar. Next, the VLJ and Veteran's attorney agreed at the October 2021 hearing that the Veteran was unable to report for the last scheduled VA examination. See October 2021 hearing transcript, p. 43. The VLJ described the central issue as whether the back surgery that required the convalescence period was actually due to the service-connected disability. Since then, VA has received additional private treatment records identifying lumbar disc pathology. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). A VA medical opinion is necessary to determine whether the back surgery in 2015 requiring convalescence is part of or otherwise related to the service-connected back disability. Therefore, a remand for a VA examination with medical opinion is warranted. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran's VA treatment records, and associate them with the Veteran's claims folder. 2. Please schedule the Veteran for a VA examination to determine the nature and etiology of any GERD. The claims file should be made available to the VA examiner. For each diagnosed disability, the VA examiner is requested to answer whether it is at least as likely as not that the disability was incurred in or is otherwise related to the Veteran's active military service. The VA examiner should also opine whether any diagnosed disability is proximately due to, the result of, or aggravated by the Veteran's service-connected disabilities, including medications taken for service-connected lumbar strain disability. The examiner should provide a rationale for all opinions expressed. 3. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected lumbar strain disability. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. A complete rationale should be provided for all opinions expressed. 4. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected left knee patellofemoral pain syndrome. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The VA examiner should also document any instability. A complete rationale should be provided for all opinions expressed. 5. After completion of the above, obtain a retrospective medical opinion as to the possibility of a temporary total evaluation for the lumbar strain disability pursuant to 38 C.F.R. §§ 4.29 and 4.30 for the November 2015 surgery for the herniated disc and microdiscectomy at L4-5 and L5-S1. The entire claims file should be reviewed by the examiner. The VA examiner is requested to answer whether it is at least as likely as not that the November 17, 2015 back surgery for herniated disc and microdiscectomy was related to the already-service-connected lumbar strain disability. In other words, please opine whether it is at least likely as not that the November 17, 2015 back surgery is medically related to the service-connected back disability. The examiner should provide a rationale for all opinions expressed. 6. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his attorney an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.