Citation Nr: 23054366 Decision Date: 09/29/23 Archive Date: 09/29/23 DOCKET NO. 20-10 973 DATE: September 29, 2023 ISSUES Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disability. Entitlement to service connection for a low back disability. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a left wrist disability. Entitlement to service connection for a left wrist disability. Entitlement to an increased initial rating in excess of 10 percent from June 16, 2017 to July 16, 2019 for gastroesophageal reflux disease (GERD). Entitlement to an increased initial rating in excess of 10 percent from June 16, 2017 for a right wrist disability. Entitlement to a compensable rating for left hand residuals of fractures in the proximal shaft of the fifth metacarpal, hereinafter left hand disability. Entitlement to a compensable rating for right hand residuals of fractures in the proximal shaft of the fifth metacarpal, hereinafter right hand disability. ORDER New and material evidence sufficient to reopen the claim for entitlement to service connection for a low back disability has been received, and to that extent only, the claim is granted. New and material evidence sufficient to reopen the claim for entitlement to service connection for a left wrist disability has been received, and to that extent only, the claim is granted. Entitlement to service connection for a low back disability is granted. Entitlement to an increased initial rating of 60 percent, but no higher, from June 16, 2017 to July 16, 2019 for gastroesophageal reflux disease (GERD) is granted. REMANDED Entitlement to service connection for a left wrist disability is remanded. Entitlement to an increased initial rating in excess of 10 percent from June 16, 2017 for a right wrist disability is remanded. Entitlement to a compensable rating for left hand residuals of fractures in the proximal shaft of the fifth metacarpal, hereinafter left hand disability, is remanded. Entitlement to a compensable rating for right hand residuals of fractures in the proximal shaft of the fifth metacarpal, hereinafter right hand disability, is remanded. FINDINGS OF FACT 1. April 2014 and October 2015 rating decisions denied service connection for a low back disability and a left wrist disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. Evidence received since October 2015 is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a low back disability and a left wrist disability. 3. The evidence is at least in approximate balance as to whether the Veteran's low back disability is related to his active service. 4. From June 16, 2017 to July 16, 2019, the Veteran's gastroesophageal reflux disease (GERD) is symptomatic of melena with moderate anemia with substernal pain and vomiting, and is productive of severe impairment of health. CONCLUSIONS OF LAW 1. The October 2015 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). 2. New and material evidence sufficient to reopen the claim of service connection for a low back disability and a left wrist disability has been received since October 2015, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2023). 3. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2023). 4. From June 16, 2017 to July 16, 2019, the criteria for an increased initial rating of 60 percent, but no higher, for the Veteran's gastroesophageal reflux disease (GERD) are met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.114, Diagnostic Code 7346 (2023). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1998 to June 2004. This matter comes before the Board of Veterans' Appeals (Board) from a December 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran's original claim of June 2017 noted appeals for "wrist/hand conditions, bilateral" on his VA 21-526EZ claim form, but the RO adjudicated only a service connection claim for the left wrist and an increased rating claim for the right wrist. The Veteran again noted his hand disabilities on his August 2018 notice of disagreement, but the statement of the case of December 2019 did not address those bilateral hand claims. During testimony before the undersigned Veterans Law Judge in July 2021, the Veteran again raised his hand issues, stating they were related to his wrist complaints that had been adjudicated by the RO, and he had intended for them to be claimed as well. The Veteran is already service connected for residuals of fractures in the proximal shaft of the fifth metacarpal for each hand and he is seeking increased ratings for those disabilities. VA has a duty to address all arguments put forth by a claimant and/or theories or contentions under which entitlement to benefits sought may be awarded. See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998). This duty includes broadly construing a claim "based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim," including the claimant's description of the claim and symptoms, as well as medical information submitted or obtained by VA. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). While Clemons itself referred to a mental health diagnosis, this rule also applies to non-mental health conditions. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (regarding a neurological disorder). A claimant may "identify the benefit sought" for their claim "by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. at 86-87 (citing to Clemons and 38 C.F.R. § 3.159(c)(3)). Here, this is exactly what the Veteran has done, and the Board finds that his right hand and left hand disabilities are therefore part of his claim as well, along with the right wrist and the left wrist, as denoted at the top of this Board decision. The wrist and hand disabilities will be further discussed in the remand section at the end of this decision. The Veteran submitted additional evidence in support of his claim after the most recent Statement of the Case (SOC) of December 2019, along with a waiver of review of such evidence by the agency of original jurisdiction. As such, the Board may properly consider such evidence at this time. See 38 C.F.R. §§ 19.37, 20.800, 20.1305(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). Also in December 2019, in a VA rating decision, the evaluation for the GERD disability was increased to 60 percent disabling, effective July 16, 2019. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In July 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). The Veteran's representative was unable to participate in the hearing, and the Veteran was offered an opportunity to reschedule by the VLJ, but the Veteran elected to continue with the hearing. A transcript of these proceedings has been associated with the Veteran's claims file. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including a total disability evaluation based on individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran has not asserted that his service-connected disabilities prevent him from gaining and maintaining suitable employment, and his most potentially significant disability in an employment determination is not on appeal here. In addition, recent VA medical records indicate the Veteran is employed and works primarily from home. The Board thus declines to infer a claim for TDIU at this time. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb, blindness or deafness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). As such, the Board will not infer the issue of entitlement to SMC at this time. Veterans Claims Assistance Act of 2000 (VCAA) 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. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2023). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). 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). Petition to Reopen In April 2014 and October 2015, a VA RO denied each time the original claims of entitlement for service connection for a low back disability and a left wrist disability. The claim was originally denied because the evidence did not show a chronic injury or condition. At the time, the RO reviewed the Veteran's available service treatment records (STRs) and his statements regarding the disabilities. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those rating decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran sought to reopen the claim in June 2017. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, and his statements regarding his left foot and right foot disabilities. The RO denied the claim in December 2017. and the Veteran filed a notice of disagreement (NOD) in August 2018. VA issued a statement of the case (SOC) in December 2019. The Veteran perfected an appeal to the Board in February 2020 and the appeal was certified before the Board in March 2020. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate these new and material issues in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the May 1986 rating decision for the low back and left wrist disabilities. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). 1. New and material evidence sufficient to reopen the claim for entitlement to service connection for a low back disability has been received, and to that extent only, the claim is granted. 2. New and material evidence sufficient to reopen the claim for entitlement to service connection for a left wrist disability has been received, and to that extent only, the claim is granted. As to the low back and left wrist claims, the evidence of record in October 2015 consisted of service records, including personnel and medical records, and the Veteran's statements. VA did not provide an examination at the time for either disability. As noted above, the claims were originally denied because the evidence did not show a chronic injury or condition. The evidence of record at that time did not establish a nexus of any of the disabilities back to active service. Since the October 2015 rating decision, the Veteran's file has additional VA and private medical records that have been attached to the claims file, to include VA examinations and treatment for his low back and left wrist disabilities. Also, the Veteran and his representative provided evidence during his July 2021 hearing with the undersigned Veterans Law Judge. These VA medical records show continuing treatment for the Veteran's low back and left wrist disabilities through to the present. This new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran's low back and left wrist disabilities in question, and under the low threshold standard could reasonably trigger the Secretary's duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim of service connection for his low back and left wrist disabilities. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for his low back and left wrist disabilities is warranted. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. To that extent only, the claims to reopen for service connection for the Veteran's low back and left wrist disabilities are granted. Service Connection - General Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be 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. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. 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 to be 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. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. 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 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). Proof of a current disability is a threshold to establishing service-connection for any claimed disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." If the evidence for and against a claim is in approximate balance, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the balance of the evidence is persuasively against the claim. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Evidence and Analysis The Veteran filed a claim for service connection for his lumbar spine in August 2013, but was denied in an April 2014 rating decision. He then filed a new claim in August 2015, and again was denied in October 2015. Each of those decisions went final after one year without a notice of disagreement. In June 2017, the Veteran filed again for service connection for his lumbar spine and was denied in December 2017, and it is that decision that is on appeal here. The Veteran first received a VA examination for his thoracolumbar spine in March 2021. This examiner diagnosed degenerative arthritis of the spine and intervertebral disc syndrome (IVDS). The examiner also found lumbar radiculopathy in both extremities. The examiner recorded the Veteran's statements that his back disability originated during physical training while in active service, that he was put on a medical profile and received some analgesic medications, but that he continued to have back pain. The Veteran stated that his back pain continued past departure from active service and into the present day, and that he has constant aches with spasms. The Veteran notes he receives physical therapy but nothing seem to work to permanently alleviate the pain. Flareups were noted to a severity that the Veteran must confine himself to bed, which happens about twice a month, and that the pain is severe at those times. The examiner noted forward flexion was limited to 30 degrees of motion, when 90 is considered normal, extension to 10 degrees, right and left flexion to 10 degrees, and right and left lateral rotation to 15 degrees. Pain on motion was noted for all measurements. Repetitive motion testing and estimates during flareups showed even further limitation of motion in all measurements, and guarding or muscle spasm was noted but not resulting in abnormal gait or abnormal spinal contour. Muscle strength was four of five on the right side and five of five on the left side. Deep tendon reflexes were all normal. The Veteran was unable to perform the straight leg raising test with either leg, and mild to moderate radiculopathy was noted. IVDS was noted but without prescriptive bed rest by a physician in the last 12 months. X-rays were taken as part of the examination and arthritis was noted in the lumbar spine. This examiner provided a negative opinion for secondary service connection, saying the claimed condition was less likely than not proximately due to or the result of the Veteran's service connected condition of GERD, noting the two conditions were not medically related and one would not directly or indirectly lead to the other. No opinion for direct service connection was provided. The Veteran received a private medical examination from Dr. J.E. in June 2021. The examiner noted the Veteran's back pain began in service from vigorous physical training while serving in the Army, and also from a motor vehicle accident during active service. A formal diagnosis of lumbosacral strain was made with degenerative arthritis of the spine and IVDS. The Veteran was noted to have sought medical attention for back pain, but it was treated conservatively with medication and rest. The examiner also noted that the Veteran's duties in medical supply made his back symptoms worse. After service, the pain became constant, four on a scale of 10 in severity, and going up to eight during flareups, to include during prolonged walking, standing, sitting, bending over, and long distance driving. A CT of the lumbar spine from January 2020 indicated disk protrusion at the L4-L5 area and the L5-S1 area. This examiner provided a positive opinion for service connection, saying it was at least as likely as not that the Veteran's current back disability was related to his active service. The examiner's rationale was that the Veteran had traumatic injury to his spine while in service, which was likely exacerbated by the physical demands of military service, and the record indicates his low back pain and associated disability continue into the present. The examiner also documented the original diagnosis of low back strain and how it likely evolved to arthritis and IVDS currently found in the Veteran. The Veteran testified before the undersigned Veterans Law Judge in July 2021 Board hearing. The Veteran described his service duties to the judge and how the symptoms of back pain plus limitations on range of motion and lifting strength that interfered with his military duties working in medical supply craft, to include through to his separation from active duty in June 2004. The Veteran then noted his challenges with post-service employers and having to undergo treatment and physical therapy to perform satisfactorily at those positions. The Veteran also discussed his periodic treatment for his back since service and stated he would submit additional medical records from his personal physician. In August 2021, VA provided an addendum examination and opinion to address the lack of a direct service connection opinion and to consider other evidence added to the claims file for the Veteran's low back claim. This examiner noted the same diagnoses of degenerative arthritis, lumbosacral strain, and IVDS for the low back. The examiner noted the Veteran's statements that the condition began during active service from physical training and also the motor vehicle accident suffered in 2001 during active service. Current symptoms were noted to consist of low back pain, muscle spasms, sciatica, and incapacitating flareups 4-6 times a year requiring bed rest. Abnormal ranges of motion were measured, with the same results as reported by the March 2021 VA examiner. Pain and tenderness were noted based on palpation of the paraspinal muscles bilaterally. There was no guarding or spasm beyond the tenderness, and it did not result in an abnormal gait or abnormal spinal contour. The straight leg raising test was positive for each side, and mild to moderate levels of radiculopathy were noted. No ankylosis or other neurological abnormalities were noted. IVDS was noted but without any prescribed periods of bedrest by a physician over the previous 12 months. The Board notes a mix of opinions but finds the March and August 2021 VA opinions to be of low probative value. Those VA examinations and opinions for service connection is based on unsupported assumptions and conclusions drawn from a lack of evidence. This opinion relies on a lack of medical evidence prior to the original claim date and does not take into account the Veteran's lay statements. The examiner correctly noted the original diagnosis from active service in the form of a lumbosacral strain but omits the multiple instances of complaint and treatment for the Veteran's back while he is still in active service, omits any mention of the Veteran's active service motor vehicle accident in 2001, and states in error that his separation examination was silent for any back complaints. In fact, the Veteran's back injury and complaints of continuing back pain are documented in that separation examination and its report of medical history. Furthermore, the VA opinions cannot directly counter the Veteran's general position that his back condition resulted from the MVA in 2001 and that his back condition is proximately caused by that event and subsequent physical stress and rigors of active military service that caused the diagnosed lumbosacral strain in service. These March and August 2021 VA examiners cannot explain the period from the Veteran's service to their formal diagnosis without impugning the Veteran's credibility of his statements. Furthermore, the examiner constructed the language of her position in the language of possibility. The use of the words "possible," "may," or "can be" make a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). The VA examiners here with their opinions could not explain away the medical reality of the Veteran's experience. The examiners listed general reasons as to why it is not likely that the Veteran's claimed back condition did not derive from service, but did not discuss any other plausible alternative either. The examiner did not list nor explain the multiple complaints and treatments the Veteran received in the years following the original incident while still in active service. While the Board notes case law that an examiner need not review the claims file prior to providing as opinion, it does require that the examiner is aware of all pertinent facts from the Veteran's history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (Vet. App. 2008). A VA examination is inadequate where a VA examiner ignores the Veteran's lay statements of an injury/event during service unless the Board expressly finds that no such injury/event occurred. Dalton v. Nicholson, 21 Vet. App. 23 (2007). In order for the Board to rely on an examiner's conclusion that an etiology opinion would be speculative, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence; the Board should ensure any such finding was well supported by the facts and data and reflects that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Jones v. Shinseki, 23 Vet. App. 382 (2010). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). To be adequate, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). On the other hand, the positive opinion offered by the Veteran's private physician Dr. J.E. was specifically aware of the Veteran's service and medical history in his role as a treating medical provider for the Veteran's diagnosed back condition and related symptoms. Furthermore, examination notes from this physician and other treatment providers indicate they noted the lay statements of the Veteran. Dr. J.E.'s opinion in favor of the Veteran's claim is of the strongest probative value. Dr. J.E. noted the Veteran's extensive history of his low back disability going back to service and opined that the Veteran's multiple incidents in service, including the motor vehicle accident in 2001. This provider personally treated the Veteran comprehensively, was familiar with his history, took his statements into account, and opined with a positive opinion with logical rationale. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The Board also notes the Veteran's consistent statements over time, to include his sworn testimony before the undersigned VLJ in July 2021. The Board finds this Veteran's testimony and other lay statements to be consistent, credible, and supportive of his claim. Importantly, there is no reason to doubt the credibility of the Veteran's self-reported history of his service back injuries and description of symptoms over time. The Board also finds very credible the explanation by the Veteran as to why he didn't seek medical treatment after active service in 2004 because of his concerns regarding employability and the immediate lack of health insurance. See 38 C.F.R. § 3.159(a)(2) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). See also 38 U.S.C. § 1154(a) (reflecting that due consideration is to be given to the places, types, and circumstances of a claimant's service). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes the more recent precedential case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), where the Federal Circuit held that pain alone can qualify as a disability for VA purposes if it amounts to a functional impairment of earning capacity. Id. at 1367-68. The Board certainly acknowledges that the latter April 2018 Saunders decision came out shortly after the RO rating decision of December 2017 on appeal, but the Board notes that both the VA examiner and the Veteran's private physician Dr. J.E. and other treatment providers had documented in their examinations and opinions the functional impacts of the Veteran's back complaints and the continuing negative impact on the Veteran's occupation and his activities of daily living. In Saunders, the Federal Circuit noted 38 C.F.R. § 4.10 defines functional impairment as the inability of the body or a part of it "'to function under the ordinary conditions of daily life including employment'" and found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability." Saunders, 886 F.3d at 1363. In other words, "pain alone can serve as a functional impairment and therefore qualify as a disability," even if there is no identified underlying diagnosis. Id. at 1367. Here, both VA and private physicians have diagnosed the Veteran's back disabilities, and thus the Board considers the precedential holding of Saunders to be pertinent and supportive of this Board decision. The Board finds evidence of a current disability of a back condition, as shown by VA and private treatment records as noted earlier in this decision. Thus, the first element of service connection is established. The second requirement is to establish in-service incurrence or aggravation of a disease or injury. Here, the claims file contains documentation of the Veteran's back injuries through lay statements of the Veteran and his service treatment records, plus highly credible and probative medical records from private medical examiners who knew the Veteran and had treated him over time. For service connection claims, lay or medical evidence can establish an in-service injury or disease or chronicity of symptoms in service. A current disability and nexus to service is generally established by medical evidence. However, the Federal Circuit has held that lay evidence is sufficient to show certain current disabilities. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (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). Additionally, the Board notes the guidance of the Federal Circuit with regard to lay evidence and proof of a claim for service connection, that examiners and adjudicators are required to address whether lay statements present sufficient evidence of the etiology of a claimant's condition such that his claim of service connection could be proven without contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 fn. 1 (Fed. Cir. 2006). The Board notes the greater weight of the private physician Dr. J.E. and his medical examinations and positive opinion in favor of service connection over the VA examiner's negative conclusory opinion regarding possible nexus. Also, a lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). For these reasons, the Board finds that an approximate balance of the evidence is in favor of the claim of service connection for a low back disability. Thus, resolving any doubt in favor of the Veteran, the Board finds that the Veteran's low back disability is related to service. As such, service connection for a back disability warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2022); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Increased Ratings - GERD Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability benefits. 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 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). If the evidence for and against a claim is in approximate balance, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the balance of the evidence is persuasively against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Legal Standards Service connection for GERD has been evaluated under DC 7346, hernia hiatal. 38 C.F.R. § 4.114. Under Diagnostic Code 7346, a 10 percent rating is warranted when the Veteran has two or more of the symptoms for a 30 percent evaluation, but of less severity. A 30 percent rating is assigned when a hiatal hernia causes persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal, arm, or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assigned when a hiatal hernia causes symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Evidence and Analysis The Veteran originally filed a service connection claim for GERD on June 16, 2017, and was granted service connection in a December 2017 rating decision. He then filed a notice of disagreement in August 2018 noting his disability was worse than originally rated. The Veteran was diagnosed with GERD while in active service, and service treatment notes indicated gastrointestinal complaints to include upset stomach, esophageal burning, and diarrhea. The Veteran is currently rated under Diagnostic Code 7346 with a 10 percent rating for his GERD, from June 16, 2017, the date of his original claim. In a December 2019 rating decision, the evaluation for the GERD disability was increased to 60 percent disabling, effective July 16, 2019. He asserts in statements and during testimony with the undersigned VLJ that his GERD disability is worse than the rating indicates, and has claimed that his 60 percent rating should apply back to the date of claim. See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran received an initial VA compensation and pension examination for his GERD and related conditions in December 2017. The examiner made a formal diagnosis of GERD with symptoms of pyrosis, heartburn and reflux, regurgitation, and substernal pain. A barium swallow esophagram had been performed in 2008 that noted the original VA diagnosis, with the examiner noting the Veteran's GERD symptoms had been noted during active service. Prescription medication was noted in addition to over-the-counter remedies. Sleep disturbances and nausea were noted with symptom reoccurrence four or more times a year. The Veteran received another VA examination for his GERD in July 2019. This examiner continued the previous GERD and related diagnoses, noted that symptoms had worsened from the previous VA examination, and recorded the Veteran's symptoms to include dysphagia, pyrosis, reflux, regurgitation, sleep disturbances, substernal pain, vomiting, melena with moderate anemia four or more times a year, and nausea caused by esophageal reflux. The frequency of symptom occurrence was four or more times per year, with the average duration of episodes of symptoms to be less than one day. No esophageal stricture was noted. The Veteran used both prescription and over-the-counter medication to alleviate his symptoms. The Veteran testified before the undersigned VLJ in July 2021 that his GERD symptoms noted during the second VA examination of July 2019 were what he had been experiencing for years, going well back before the date of claim of June 2017. The Veteran noted he had been diagnosed while in service and that his symptoms had been worsening for years, into the present day. Based on the medical evidence, to include the Veteran's statements and his testimony before the undersigned VLJ, the Board finds that a rating of 60 percent, and no higher, for the Veteran's GERD and hiatal hernia under Diagnostic Code 7346 has been met or approximated effective from the original date of claim of June 16, 2017. The record does indicate that the Veteran's GERD was manifested by melena with moderate anemia, substernal pain, dysphagia, pyrosis (heartburn), regurgitation, nausea with periodic episodes of 4 or more per year, and vomiting with periodic episodes of 4 or more per year. See 38 C.F.R. § 4.114, Diagnostic Code 7346. The 60 percent rating awarded here is the maximum rating for Diagnostic Code 7346. The weight of the evidence demonstrates that his symptoms are productive of severe impairment of health for a 60 percent rating, given the range and severity of symptoms displayed for entire period on appeal. The Board considers the Veteran's lay statements, to include his Board testimony, to be credible and indicative of the severity of his disability warranting a 60 percent rating. The Veteran would be expected to give a full and accurate history to a medical provider when seeking treatment to ensure adequate care. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet. App. 341 (1991). Therefore, the Board finds that the approximate balance of evidence is in favor a 60 percent rating under Diagnostic Code 7346, the maximum rating possible, for the GERD disability from the original date of claim of June 16, 2017. See 38 C.F.R. § 4.114, Diagnostic Code 7346; see also 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's GERD disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Staged ratings were considered but are not warranted beyond those already assigned, as noted in the discussion above. See Hart, 21 Vet. App. at 505. REASONS FOR REMAND As discussed in the beginning of this Board decision, the Veteran originally claimed "wrist/hand conditions, bilateral" on his June 2017 VA 21-526EZ claim form, but the RO adjudicated only a service connection claim for the left wrist and an increased rating claim for the right wrist. The Veteran again noted his hand disabilities on his August 2018 notice of disagreement, but the statement of the case of December 2019 did not address those bilateral hand claims. During testimony before the undersigned Veterans Law Judge in July 2021, the Veteran again raised his hand issues, stating they were related to his wrist complaints that had been adjudicated by the RO, and he had intended for them to be claimed as well. The Veteran is already service connected for residuals of fractures in the proximal shaft of the fifth metacarpal for each hand, and he is seeking increased ratings for those disabilities along with his claims for service connection for the left wrist and an increased rating for the right wrist. 1. Entitlement to service connection for a left wrist disability is remanded. 2. Entitlement to an increased initial rating in excess of 10 percent from June 16, 2017 is remanded. 3. Entitlement to a compensable rating for left hand residuals of fractures in the proximal shaft of the fifth metacarpal, hereinafter left hand disability, is remanded. 4. Entitlement to a compensable rating for right hand residuals of fractures in the proximal shaft of the fifth metacarpal, hereinafter right hand disability, is remanded. At a minimum, the Veteran has outstanding increased rating claims for each hand that have not been addressed. Previous VA and private medical examinations have noted the relatedness of the wrist issues with the hand issues, and the Veteran has claimed them as such. The Board thus considers them inextricably intertwined, and therefore the increased rating and service connection claims for the hands and wrists must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated relevant VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for a VA examination by the appropriate VA medical professional with expertise in hand and wrist orthopedics to determine the nature and etiology of his left wrist disability, and the nature and severity of his service-connected right wrist, right hand, and left hand disabilities, to include all orthopedic and neurological manifestations. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. 3. Based on the review of the Veteran's entire record, to include his Board testimony and his lay statements, the examiner should provide an opinion as to the following for left wrist: Whether it is approximately at least as likely as not that the Veteran's claimed left wrist disability had its onset in service or are otherwise related to any in-service disease, event, or injury? The examiner is to also carefully consider the Veteran's statements of pain and other symptoms in light of the precedential finding of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone can serve as a functional impairment and therefore qualify as a disability. When considering the evaluations, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative, if the Veteran obtains representation, should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.