Citation Nr: 25004803 Decision Date: 04/09/25 Archive Date: 04/09/25 DOCKET NO. 17-40 713 DATE: April 9, 2025 ORDER Entitlement to service connection for left upper extremity neuropathy, including secondary to diabetes mellitus, is denied. Entitlement to service connection for right upper extremity neuropathy, including secondary to diabetes mellitus, is denied. Entitlement to service connection for left lower extremity neuropathy, including secondary to diabetes mellitus, is denied. Entitlement to service connection for right lower extremity neuropathy, including secondary to diabetes mellitus, is denied. REMANDED Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety disorder, is remanded. Entitlement to a rating in excess of 40 percent for lumbosacral spine disability is remanded. FINDINGS OF FACT 1. The evidence is persuasively against the Veteran having diabetes mellitus or diabetic neuropathy. 2. The evidence is persuasively against the Veteran having a peripheral neuropathy of the left upper extremity other than carpal tunnel syndrome. The evidence is persuasively against the Veteran's carpal tunnel syndrome of the left upper extremity having developed in service or otherwise being causally related to service and is persuasively against carpal tunnel syndrome of the left upper extremity having been present within the first post-service year. 3. The evidence is persuasively against the Veteran having a peripheral neuropathy of the right upper extremity other than carpal tunnel syndrome. The evidence is persuasively against the Veteran's carpal tunnel syndrome of the right upper extremity having developed in service or otherwise being causally related to service and is persuasively against carpal tunnel syndrome of the right upper extremity having been present within the first post-service year. 4. The evidence is persuasively against the Veteran having peripheral neuropathy of the left lower extremity other than lumbar radiculopathy. 5. The evidence is persuasively against the Veteran having peripheral neuropathy of the right lower extremity other than lumbar radiculopathy. CONCLUSIONS OF LAW 1. The criteria for service connection for left upper extremity neuropathy, including secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for right upper extremity neuropathy, including secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for left lower extremity neuropathy, including secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for right lower extremity neuropathy, including secondary to diabetes mellitus, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to June 1968. The Department of Veterans Affairs (VA) is grateful for his service. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new AMA framework for veterans to appeal VA decisions with which they are not satisfied and includes various options for appealing an initial rating decision to the Board. The prior system for deciding such appeals is now referred to as the "legacy framework" or "legacy appeal process." The present appeal comes before the Board within the legacy appeal process. The Veteran and his spouse testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing conducted in February 2022. A transcript of the hearing is of record. The Board remanded the appealed claims in July 2022, and again in March 2024 under 38 C.F.R. § 20.1305(c) because the Veteran did not provide a waiver of Regional Office (RO) review of additional service personnel records added to the claims file when requested by the Board. The Board then also remanded for additional necessary development of the peripheral neuropathy and lumbosacral spine disability claims. In January 2025, the RO issued a supplemental statement of the case (SSOC) addressing the remaining appealed claims. The case now returns to the Board for further review. Service Connection 1. Entitlement to service connection for left upper extremity neuropathy including secondary to diabetes mellitus. 2. Entitlement to service connection for right upper extremity neuropathy including secondary to diabetes mellitus. 3. Entitlement to service connection for left lower extremity neuropathy including secondary to diabetes mellitus. 4. Entitlement to service connection for right lower extremity neuropathy including secondary to diabetes mellitus. At the Veteran's February 2022 hearing, the Veteran's authorized representative clarified that the Veteran was claiming service connection for peripheral neuropathy either on a direct basis, with the condition presenting in service at the same time the Veteran injured his back, or on a secondary basis as due to diabetes mellitus. See Hearing transcript (Ht), pp. 18-20. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). The claimant bears the burden of presenting and supporting a claim for benefits. 38 U.S.C. § 5107 (a); Fagan v. Shinseki, 573 F.3d 1282, 128688 (Fed. Cir. 2009). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 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). 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 opposed to merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). The term "chronic disease" refers to those diseases, such as organic diseases of the nervous system, listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101 (3); 38 C.F.R. § 3.309 (a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, the law provides that, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § § 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Objective indications of a qualifying chronic disability include both signs and symptoms, 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). To establish presumptive service connection for a disease associated with exposure to certain herbicide agents (e.g., Agent Orange), the evidence must show the following: (1) that the veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (or was otherwise exposed to an herbicide agent during active service); (2) that he currently suffers from a disease associated with exposure to certain herbicide agents listed under 38 C.F.R. § 3.309 (e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). If a veteran was exposed to an herbicide agent during active military, naval, or air service, then certain diseases shall be service connected, if the requirements of 38 C.F.R. § 3.307 (a) are met, even if there is no record of such disease during service. The listed diseases include diabetes mellitus but not peripheral neuropathy. 38 C.F.R. § 3.309(e). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). In making determinations, VA is responsible for ascertaining whether the evidence supports the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. If the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). If the evidence persuasively favors one side or the other, there is not an approximate balance, and therefore the benefit-of-the-doubt rule does not apply. Id.; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The Veteran was previously denied service connection for diabetes mellitus by a June 2013 rating decision, based on absence of evidence of exposure to herbicide agents. However, as noted below, presumptive exposure to herbicide agents is now established. In the July 2022 remand, the Board provided the following concerning submitted documents purporting to be supportive medical evidence: In April 2022, the Veteran's authorized representative submitted a transmittal letter from the Veteran dated in April 2022 and a letter purporting to be from a private treating physician, Dr. A. Swain, M.D. However, a careful inspection of the letter from the physician reveals that the physician's signature was digitally cut and pasted into the letter. Because the letter has been digitally altered, the letter does not constitute credible evidence and is of no probative value. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996). At his February 2022 hearing, the Veteran introduced and read a letter from his "main doctor," again Dr. Swain, which letter was undated but which the Veteran reported came in an envelope date stamped in October 2021. (Hearing transcript (Ht), pg. 17.) (A copy of the letter is associated with the claims file with a receipt date of April 19, 2022.) In the letter, the Veteran is described as a patient "for several years" treated for chronic back pain "using several different modalities," and an opinion is provided that "his chronic pain today was likely begun from this accident while serving in the United States Navy." (Ht., pg. 15.) However, because this is another letter purporting to be from Dr. Swain in support of the Veteran's claims, its validity cannot be assumed. The absence of a letterhead or formatting matching other letters purported to be from Dr. Swain also raises suspicions about its validity. Contents of the letter also raise significant suspicions of invalidity, as in this section of the letter: The patient was on active duty on the USS Newport News in 1967. The patient was working on his assigned 5[-]inch gun mount when he was injured. The patient had finished his work on his gun mount and jumped off backwards to dismount the gun. Jumping off the gun backwards was the typical way in which sailors got down off the gun mount. Unbeknownst to him the hatch leading to the ammunition holding room was left open and [the Veteran] fell into the open hatch with his left leg while his right leg landed on top of the deck resulting in his lumbar spine striking the steel floor. Leaving the hatch to the ammunition holding room open was strictly forbidden due to risk of injury when dismounting from the gun mount. [The Veteran] severely injured his back from this accident. The patient was then taken by helicopter to the fleet aircraft carrier and then was subsequently transferred to Oakland Naval Hospital where he was treated for six months before being discharged with a service[-]connected medical discharge. This appears to be a narrative by the Veteran about injury in service, reflecting particularized personal details about the reported incident as well as knowledge of and preoccupation with military practices and the Veteran's assigned duties, actions, and physical transfers in service about which a physician would not have been aware and about which a physician would not generally have concerned himself or herself. Based on the Veteran's submission of another letter purporting to be from the same physician which was obviously altered by a cut-and-pasted signature, as discussed above, as well as based on the above excerpted Veteran-centered narrative highly unlikely to have been from a physician, the Board also finds this letter to be of no probative value, based on non-credibility. Based on these findings, the credibility of past submitted medical statements in support of claims are also brought into question. If the Veteran wishes have a letter from this or another physician considered as credible, probative evidence, he should at this point have the physician send the letter directly to VA, so that a chain of custody may be established and other indicia of validity may be present to support the validity of the evidence. The Board still considers that submitted evidence not probative for the discussed reasons of non-credibility. The Veteran did not subsequently have physicians submit probative medical opinion letters directly to VA in furtherance of the appealed claims. The Veteran was afforded a VA contract neurological examination in January 2023 addressing the upper and lower extremities. The Veteran reported a history of back pain with low back injury in 1967 and wearing a back brace since 1968 as well as having subsequently received physical therapy and chiropractic care. The Veteran reported experiencing bilateral paresthesias in the lower legs sharp, throbbing pain, and generalized weakness in the lower extremities. The examiner reviewed EMG testing from 2005 reflecting normal functioning in all extremities. The examiner found that the Veteran had thoracolumbar spine radiculopathy of the lower extremities, and that neuropathy in the lower extremities was attributable to that radiculopathy. Upon examination, symptoms included constant and intermittent pain, paresthesias or dysesthesias, and numbness in both upper and lower extremities. Neurological examination also revealed decreased sensation and decreased strength in all extremities. However, the examiner concluded that the Veteran did not have diabetic neuropathy. In a report added to the record in April 2023, the January 2023 contract neurological examiner provided an opinion that it was at least as likely as not that the Veteran's neuropathies of the lower extremities reflected radiculopathy in each lower extremity causally related to his service-connected low back disability. Based on this opinion, the RO by an April 2023 decision granted service connection for right and left lower extremity sciatic neuropathy. While the Veteran claimed neuropathies of the upper and lower extremities including as secondary to diabetes mellitus, a VA contract examiner in September 2023 found that the Veteran did not meet the criteria for a diagnosis of diabetes mellitus. This was consistent with VA treatment records also reflecting no diagnosis of diabetes mellitus. On August 10, 2022, the Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxins Act of 2022 (PACT Act) was enacted. The PACT Act also created a new presumption for service connection for certain conditions based on exposure to burn pits and other toxins (BPOT) and added new examination requirements where toxic exposure risk activities (TERA) are implicated. 38 U.S.C. § 1119. The PACT Act provides that, if a Veteran submits a claim for service connection with evidence of disability and evidence of participation in a TERA, then VA shall obtain a medical opinion as to whether it is at least as likely as not that there is a nexus between the disability and the toxic exposure risk activity. 38 U.S.C. § 1168. The exception to this requirement is if the Secretary determines there is no indication of an association between the disability claimed by the veteran and the toxic exposure risk activity for which the veteran submitted evidence. Id. VA has determined that there is insufficient evidence demonstrating a relationship between toxic exposure and conditions alleged to be related to physical trauma, such as blunt force trauma, repetitive use trauma, or penetrating trauma. See Processing Claims, Sergeant First Class Heath Robinson Honoring Our Promise to Address Comprehensive Toxics Act of 2022, or the Honoring Our PACT Act of 2022, 87 Fed. Reg. 7854 (December 22, 2022); see also 38 U.S.C. § 1168(b). In the March 2024 remand, the Board required development of the peripheral neuropathy claims with consideration of TERA exposures, with appropriate TERA development. Where a veteran submits a service connection claim with evidence of a disability and evidence of participation in a TERA during active military service and such evidence is not sufficient to establish service connection for the disability, the Secretary shall provide the veteran with a medical examination and secure a nexus opinion, unless the Secretary determines there is no indication of an association between the disability claimed by the veteran and the TERA for which the veteran submitted evidence. 38 U.S.C. §§ 101(38), 1710(e)(1)(C), 1119. The Veteran has contended exposure to hazards associated with participation in Project SHAD (Shipboard Hazard and Defense). However, VA Compensation Service research revealed that the Veteran could not have participated in Project SHAD. A May 2024 VA exposure memorandum informs that the time frames for Project SHAD were from 1962 to 1974, which would encompass the Veteran's period of active service from April 1967 to June 1968. However, the Veteran served aboard the USS Newport News, as shown by his service personnel records, and the USS Newport News is not a ship listed as participating in SHAD testing. Accordingly, the Veteran's contention of such participation is not supported by official records. Absent some form of corroborated participation in Project SHAD, such participation is not supported, but rather is contradicted by the Veteran's documented ship deployment aboard the USS Newport News. VA has, accordingly, concluded in the memorandum that the Veteran did not participate in Project SHAD, and no associated exposure in service can be supported on that basis. Based on the location of the USS Newport News during the interval of the Veteran's stationing aboard that vessel, the Veteran's exposure to herbicide agents (e.g., Agent Orange) has been conceded, as reflected by a May 2024 TERA Memorandum. Also conceded by that memorandum is minimal exposure to asbestos based on his military occupational specialty (MOS) as a yeoman. However, a neuropathy of the upper or lower extremities has not been found to be causally associated with any TERA. A VA examiner in August 2024 considered questions of peripheral neuropathy of each upper and each lower extremity being causally related to TERA, identified as exposure to herbicide agents and asbestos. The examiner opined that it was not at least as likely as not that the Veteran had neuropathy in each lower extremity related to the synergistic effects of all TERA. The examiner explained that the neuropathy in each lower extremity was not identified other than the already service-connected radiculopathy in each lower extremity. The Board finds these opinions to be competent, credible, well-reasoned, and well-supported by the balance of the evidence of record, including by prior examination diagnoses of the Veteran's neuropathies of the lower extremities as lumbar radiculopathy. Because the Veteran is already service connected for lumbar radiculopathy in each lower extremity, separately rating that same disability of each lower extremity as peripheral neuropathy would constitute pyramiding, or rating the same disability under multiple different rating codes, which is to be avoided. 38 C.F.R. § 4.14. Similarly, the August 2024 examiner opined that it was not at least as likely as not that the Veteran had neuropathy in each upper extremity related to the synergistic effects of all TERA based on the absence of neuropathy in each upper extremity other than neuropathy due to carpal tunnel syndrome. The Board also finds these opinions to be competent, credible, well-reasoned, and well-supported by the balance of the evidence of record, including by prior findings of carpal tunnel syndrome and absence of medical findings of other neuropathy of the upper extremities. At the February 2022 hearing, the Veteran testified to losing strength in his upper extremities in the past seven to 10 years, while expressing a belief that this was due to exposures in service. See Ht, p. 45. However, the Veteran, as a layperson, is without the expertise needed to address whether he has neuropathy of the upper extremities beyond carpal tunnel syndrome and the causes of upper extremity neuropathy, which are questions of diagnosis and etiology beyond lay competence. The Veteran has not been shown to possess the requisite expertise or knowledge to address these questions. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Also at the February 2022 hearing, the Veteran contended that he did not have leg pains until after his back was hurt, and that the leg pains began at the time of the back injury and long before he developed other potential causes of leg pains. See Ht, pp. 13-14. However, again, questions of diagnosis and etiology are beyond the Veteran's lay competence to address. Jandreau, supra. The Board does not find contrary competent, credible evidence weighing against conclusions of the August 2024 examiner that the Veteran does not have neuropathy in the lower extremities other than the already service-connected lumbar radiculopathy. Hence, the Board finds the evidence persuasively against the presence of other neuropathy in the lower extremities. No competent evidence is presented to link the Veteran's carpal tunnel syndrome of each upper extremity to service, and hence the evidence is persuasively against the upper extremities claims based on any link between service and carpal tunnel syndrome. 38 C.F.R. § 3.303. The Veteran's carpal tunnel syndrome of each upper extremity has also not been shown by evidence of record to have been present within the first post-service year, and hence service connection for carpal tunnel syndrome of either upper extremity is also not supported on a first-year-post-service presumptive basis. 38 C.F.R. §§ 3.307, 3.309 The August 2024 examiner's opinions are consistent with prior examiners and the weight of evidence of record to the effect that the Veteran does not have neuropathy in the upper extremities other than bilateral carpal tunnel syndrome, and he does not have neuropathy in the lower extremities other than already service-connected radiculopathy. A prior VA examiner in January 2023 also found no neuropathy in the upper and lower extremities other than "back and neck issues," though that examiner informed that "upper extremity findings are outside the scope of the current exam." The August 2024 examiner, with more careful review of the record and examination, concluded that the upper extremities conditions were due to carpal tunnel syndrome and did not identify cervical radiculopathy. However, the examiners are consistent in not identifying other neuropathies of the extremities. The Veteran also has been consistently found not to have diabetes, including by past VA examination in September 2023, as noted. Hence, the Veteran could not have diabetic neuropathy in any extremity based on the absence of diabetes. Neuropathy in any extremity as secondary to diabetes mellitus is thus also not supported, with the evidence persuasively against, based on the evidence being persuasively against the Veteran having any history of diabetes mellitus. In the absence of competent, credible evidence supporting the presence of neuropathy in any extremity other than radiculopathy in the lower extremities and carpal tunnel syndrome in the upper extremities, the evidence is persuasively against service connection for another form of neuropathy in any extremity on a direct basis, and hence service connection is not warrant for another form of neuropathy of any extremity on a direct basis. 38 C.F.R. § 3.303. Because the evidence is persuasively against the claims for service connection for neuropathies of the upper and lower extremities on all theories presented, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra. REASONS FOR REMAND 1. Entitlement to service connection for a psychiatric disability, to include PTSD and anxiety disorder, is remanded. In its March 2024 remand, the Board did not then find that additional development was required specifically for the claim for service connection for a psychiatric disability. However, evolving parameters within VA law for what constitutes aggravation of a non-service-connected disability by a service-connected disability now requires an addendum to the prior VA examination opinion in February 2023. Specifically, that VA examiner opined that the Veteran's back disorder did not aggravate the Veteran's anxiety disorder beyond its natural progression. However, as VA law pertaining to aggravation is now understood, 38 U.S.C. § 1110 allows for service connection of conditions that would have been less severe were it not for the service-connected disability even if the worsening of the condition occurs due to the natural progression of that condition. See Spicer v. McDonough, 61 F.4th 1360, 1364 (2023). An appropriate addendum opinion is therefore now required. 2. Entitlement to a rating in excess of 40 percent for lumbosacral spine disability is remanded. In March 2024, the Board remanded the claim for a higher rating for a lumbosacral spine disability due to failure of a prior examiner in April 2023 to fulfill the Board's prior remand instructions, which included instructions to conduct validity testing and to seek to rely on more objective or corroborated evidence of disability due to the Veteran's impaired credibility, and requiring that the examiner address the nature and severity of the lumbosacral spine disability before and after the Veteran's back surgery in August 2019. In the prior remand in July 2022, the Board addressed significant questions of credibility raised by the Veteran submitting fraudulent or altered medical evidence in furtherance of his claims, providing inconsistent presentations upon examinations, and refusing to cooperate with past examinations. At the April 2023 examination, the Veteran provided a history of back injury in Vietnam with persistence of symptoms since that time, yet the Veteran did not serve on land in Vietnam. This served to further call into question the validity of the Veteran's statements of symptoms and history. The Veteran was afforded a new VA back examinations for rating purposes in August 2024, with addenda in November 2024 and December 2024. While the Board in August 2024 had requested validity testing in light of the Veteran's impaired credibility, the Board does not find the most recent examinations fatally flawed due to lack of such testing. However, VA examination reports and treatment records indicate that the Veteran takes medication for lumbosacral spine disability. At the August 2024 examination the Veteran reported seeing a pain management specialist for almost five years. An April 2022 VA treatment note informed that the Veteran had an active prescription privately for oxycodone. Since the examinations, on March 12, 2025, the United States Court of Appeals for Veterans Claims (CAVC) issued a precedential decision, Ingram v. Collins, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327 (March 12, 2025), reaffirming the holding of Jones v. Shinseki, 26 Vet. App. 56 (2012), which required VA to discount the beneficial effects of medication when rating disabilities if the relevant rating criteria do not explicitly contemplate use of medication. In Ingram, the Court determined that because diagnostic codes and special regulations pertaining to musculoskeletal disabilities do not explicitly contemplate use of medications, VA must discount the beneficial effects of use of medications when rating musculoskeletal disabilities. No such discounting was accomplished by VA examiners when evaluating the Veteran's lumbosacral spine disability. The 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). Hence, the Board is compelled to remand the appealed increased rating claim for an examiner to address the nature and severity of the Veteran's lumbosacral disability as it would be in the absence of the ameliorative effects of medication taken. Once VA provides an examination, the examination must be adequate, or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following actions: 1. Obtain any VA treatment records and any pertinent private treatment records not yet associated with the claims file. The Veteran's authorization or assistance should be requested, as appropriate. All requests, responses, and records received should be documented in the claims file. If any records cannot be obtained the Veteran should be appropriately notified. 2. Thereafter, obtain an addendum to the February 2023 VA examination addressing the Veteran's claimed psychiatric disability and the question of aggravation by the Veteran's service-connected back disability. Inform the examiner that while the February 2023 examiner opined that it was not at least as likely as not that the Veteran's back disorder did not aggravate the Veteran's anxiety disorder beyond its natural progression, that opinion is insufficient. A new opinion must be provided as directed below. The claims file must be made available and reviewed for the addendum examination. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner should be advised that credibility questions are raised by the Veteran's submission of fraudulent or altered medical evidence in furtherance of claims and by the Veteran's inconsistent presentations and refusals to cooperate in past examinations in furtherance of claims. Because questions of credibility are presented in this case, to the extent necessary and feasible validity testing should be performed, and the examiner should rely on more objective evidence or corroborated evidence when evaluating the nature of the Veteran's claimed psychiatric disability and when addressing questions posed of aggravation. The examiner must also document and consider the Veteran's own statements regarding his disability since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. However, competence is not credibility. Due to questions around the Veteran's credibility, the Veteran's statements of symptoms or history of disability should not be accepted at face value, but rather corroboration should be sought by independent, more objective evidence. (a.) For any psychiatric disability present during the claim period, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability was aggravated (worsened) by a service-connected disability. The examiner is advised that aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent" worsening of the nonservice connected disability. The examiner is also advised that 38 U.S.C. § 1110 allows for service connection of conditions that would have been less severe were it not for the service-connected disability even if the worsening of the condition occurs due to the natural progression of that condition. See Spicer v. McDonough, 61 F.4th 1360, 1364 (2023). The examiner must provide opinions and rationales to address secondary aggravation separate from those addressing secondary causation. Atencio v. O'Rourke, 30 Vet. App. 74 (2018). The examiner must provide a complete explanation, supported by evidence and medical knowledge, for each opinion expressed. 3. Then, schedule the Veteran for a new in-person examination to address the nature and severity of any current lumbosacral spine disability and any other associated pathology, both currently and retrospectively, to the extent feasible, to address the nature and severity of disability before and after an August 2019 back surgery. The examination should be conducted by an examiner qualified to do so. The examiner should be informed that a new examination is required because prior examinations failed to discount the ameliorative effects of medication. Pursuant to the Court's holdings in Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) and Ingram v. Collins, No. 23-1798, 2025 U.S. App. Vet. Claims LEXIS 327 (March 12, 2025), the examiner must attempt to describe what the severity of the Veteran's lumbosacral spine disability would be without the ameliorative effects of medications. To the extent feasible, this should be accomplished for the entire rating period, including before and after spine surgery in August 2019. The examiner should be advised that credibility questions are raised by the Veteran's submission of fraudulent or altered medical evidence in furtherance of claims and by the Veteran's inconsistent presentations and refusals to cooperate in past examinations in furtherance of claims. The examination report should reflect the examiner's recognition of these credibility issues. The claims file must be made available and reviewed for the examination. Any studies, tests, and evaluations deemed necessary by the examiner should be performed. All pertinent symptomatology and findings must be reported in detail in accordance with rating spine disabilities and radiculopathy. The examiner must also document and consider the Veteran's own statements regarding his disability since a layperson is competent to address symptoms as experienced and his recollections of past history and treatment. However, competence is not credibility. Due to the Veteran's impaired credibility, the Veteran's statements of symptoms or history of disability should not be accepted at face value, but rather corroboration should be sought by independent, more objective evidence. The examiner should address the effects of the Veteran's August 2019 back surgery, including addressing the nature and severity of his back disability prior to the surgery and following a granted convalescence period for recovery from the surgery which ended December 1, 2019. The examiner should also address the nature and severity of any other pathology associated with his low back disability. Once again, due to the Veteran's impaired credibility, the Veteran's statements of symptoms or history of disability should not be accepted at face value, but rather corroboration should be sought by independent, more objective evidence. The examiner must provide a complete explanation, supported by evidence and medical knowledge, for each opinion expressed. (Continued on the next page) ? 4. Thereafter, readjudicate the remanded claims. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.