Citation Nr: A25041272 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 230511-346739 DATE: May 6, 2025 ORDER Entitlement to service connection for thoracolumbar spine degenerative arthritis on a direct basis is granted. Entitlement to service connection for unspecified depressive disorder with anxious distress (depressive disorder) is granted. Entitlement to service connection for sleep disturbances is denied. REMANDED Entitlement to service connection for chronic kidney disease, stage 2, to include as secondary to service-connected thoracolumbar degenerative arthritis and depressive disorder, with obesity as an intermediate step, is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the thoracolumbar degenerative arthritis is related to an in-service injury. 2. The evidence is at least evenly balanced as to whether the Veteran's depressive disorder is related to service. 3. The Veteran is being compensated for impairment due to sleep symptoms pursuant to the grant of service connection for depressive disorder and there has not been a diagnosed disorder related to sleep disturbances apart from those related to the now service-connected depressive disorder at any time during or proximate to the pendency of the claim. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for thoracolumbar degenerative arthritis on a direct basis have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for sleep disturbances have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions from March 2023 and April 2023 of the Department of Veterans Affairs (VA) Regional Office (RO). In the March 2023 rating decision, the RO conducted higher-level review of a November 2022 rating decision and continued the denials of service connection for depressive disorder with anxiety, sleep disturbances, thoracolumbar degenerative arthritis, and chronic kidney disease, stage 2. The Veteran filed Form 20-0995, Decision Review Request: Supplemental Claim, in April 2023 regarding depressive disorder with anxiety, and the RO, after considering the new and relevant evidence submitted by the Veteran, continued the denial of service connection for depressive disorder with anxiety. In the May 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. On December 5, 2024, the Veteran withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the November 2022 agency of original jurisdiction (AOJ) decision for the claims related to sleep disturbances, thoracolumbar degenerative arthritis, and chronic kidney disease, stage 2, which was subsequently subject to higher-level review, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). Regarding the claim of service connection for depressive disorder, the Board may only consider the evidence of record at the time of the April 2023 AOJ decision, as well as any evidence submitted by the Veteran or representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the identified decisions, and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding the claim chronic of kidney disease, stage 2, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). In May 2023, when the Veteran filed the Notice of Disagreement, the Veteran was represented by the Florida Department of Veteran Affairs under a May 2010 VA Form 21-22. On April 17, 2024, VA received a new VA Form 21-22 that appointed Disabled American Veterans as the Veteran's representative. Under 38 CFR § 20.1304(a), an appellant and his or her representative, if any, will be granted a period of 90 days following receipt of a Notice of Disagreement, or up to and including the date the appellate decision is promulgated by the Board, whichever comes first, during which they may submit a request for a change in representation. 38 CFR § 20.1304(b) provides that if the 90 day period has expired, the Board will not accept a request for a change in representation except when the appellant demonstrates on motion that there was good cause for the delay. Here, the change in representative occurred more than 90 days after the filing of the Notice of Disagreement and the Veteran has not demonstrated on motion that there was good cause for the change. As such, pursuant to 38 CFR § 20.1304(b)(1), the Board refers the request for a change in representation to the AOJ for association with the Veteran's file for any pending or subsequently received claims upon completion of the Board's action on this pending appeal. Further, as the Board does not accept the change in representation of this pending appeal, the Board is not required to take further action and may proceed with adjudication. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for thoracolumbar degenerative arthritis. As favorably found by the AOJ, the November 2022 VA examination report contains a diagnosis of thoracolumbar degenerative arthritis. The Board is bound by this favorable finding, 38 C.F.R. § 3.104(c), and the current disability requirement has thus been met. Since the 1970s, the Veteran has stated that he fell from the wing of a plane while in-service and fractured his tailbone. As his service treatment records do not reflect his injury, in September 1973, the Veteran submitted a lay statement from another servicemember who served with the Veteran while stationed in the United States and Korea. He recalled that in May 1969, he saw an accident involving the Veteran while the Veteran was working on a F-4 Phantom jet. The Veteran injured his lower back and received medical treatment at that base as well as a VA hospital in New York City. In the Veteran's February 1980 statement, he explained that the injury did not require immediate surgery while in service, but that the "discomfort came and went with time." After his discharge, the pain from a pilonidal cyst that formed after the fall became "too much too bear." In the Veteran's 1973 statement, he explained that he had the cyst removed in a VA hospital in April 1971, and he was unable to sit without extreme pain. As of November 1973, the Veteran reported that he could not sit in one position for any length of time, that squatting caused excessive pressure and discomfort in his lower spine, and that damp weather affected his lower back. In February 1980, the Veteran reported that he could not sit straight because of his tailbone and surrounding area, he had pain in his back when sleeping, he could not drive medium or long distances, and cold, damp or inclement weather caused pain. The Veteran explained the same incident in his June 2010 statement, explaining that he has experienced low back pain and an inability to sit since the in-service fall. The evidence of record, to include the Veteran's lay statements, the servicemember's statement, and military personnel records which show that the Veteran worked as an aircraft pneumatic systems repairman, is credible and consistent with the places, types, and circumstances of the Veteran's military service. 38 C.F.R. § 3.303(a) (each disabling condition for which a Veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). Therefore, the Veteran meets the in-service injury requirement. The remaining issue is thus whether there is a relationship between the current thoracolumbar degenerative arthritis and the in-service injury. The earliest VA treatment records available are from September 2010. In the first record, the Veteran reported pain in his low back from the 1971 cyst removal and a 2010 x-ray showed an old fracture of the coccyx. In November 2010, the Veteran reported continuous pain of the coccyx and low back following the fall. In October 2012, the Veteran sought treatment for chronic low back pain and the VA physician noted that he presented with classic signs and symptoms of arthritic changes about the lumbar spine. In December 2016, a VA CT scan showed lumbar degenerative disc disease, a multilevel Schmorl's node formation, and a grade 1 anterolisthesis at L4-5. In his October 2022 VA Form 21-526EZ, the Veteran stated that his thoracolumbar spine disability was caused by his violent fall off an airplane and, in the alterative, was related to the excision of his pilonidal cyst for which he was service connected for the excision scar. During his November 2022 back (thoracolumbar spine) conditions VA examination, the Veteran reported that the onset date of his thoracolumbar spine condition was in the 1970s, and that he has had ongoing back pain with sciatica and bilateral lower radiculopathy due to the service connected scar from the surgical excision of his pilonidal cyst. The pain had been "ongoing" since onset and increased with prolonged sitting, walking and standing, and running, lifting, and pushing or pulling objects. The examiner recorded that November 2022 imaging showed degenerative disc disease with marginal hypertrophic change at L2-3 and an otherwise negative lumbosacral spine. The examiner provided a negative etiological opinion stating that the Veteran's thoracolumbar degenerative arthritis is a separate entity entirely from the scar created by the surgical excision of pilonidal cyst, and that a thorough review of medical literature failed to demonstrate a causal relationship. In the December 2022 higher-level review conference, the Veteran explained that his claim for thoracolumbar degenerative arthritis was claimed on a secondary basis to the surgical excision of the cyst or in the alternative, to the in-service fall that resulted in the pilonidal cyst. In investigating the Veteran's contention that the in-service fall resulted in the cyst and damage to his spine, the RO determined that complete service treatment records were not in the record. While records confirmed a right buttock abscess, they did not confirm the alleged event. The RO was able to obtain less than 20 pages of medical service treatment records that included the entrance and separation report of examinations and medical histories, a physical profile serial report, a March 1969 report of medical examination and history, a single page of notes of medical care and one page of laboratory results. The documents did not reference the reported fall or damage to the spine or coccyx. In his February 2023 VA thoracolumbar spine conditions VA examination, the Veteran again reported that his condition began in 1969 when he fell off a plane; the conditions included pain in his back, stiffness, loss of range of motion and sensitive pain that radiates down his legs, and has worsened over the years. In the February 2023 VA medical opinion, the examiner only considered the relationship between the pilonidal cyst excision and thoracolumbar degenerative arthritis because while the cyst and removal were part of the Veteran's post-service medical file, a fall and related injury were not. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness because, within the medical literature, there is no attributable back condition due to pilonidal cyst post successful removal. The Veteran is competent to report the onset and persistent nature of his low back pain following his in-service fall off an airplane. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007) (a veteran is competent to testify regarding observable symptoms); Buchanan v. Nicholson, 451 F. 3d 1331, 1337 (holding lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). The Veteran's statements are supported by the evidence in record, including his consistent statements made since the 1970s regarding his fall, his fellow servicemember's statement regarding his fall and injury, his multiple VA treatment records discussing his in-service fall and resultant pain, and the 2010 x-ray that showed an old fracture in his coccyx. Although the Veteran has credibly and consistently provided observable lay testimony regarding his fall and his back pain since service, as well as medical and other relevant lay evidence, the VA examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury in service and instead relied on the lack of a back condition noted in service in the few pages of service treatment records obtained. See Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007) (finding that an examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury in service); Buchanan,451 F.3d at 1336, n. 1 (stating that an examiner's opinion failed to consider whether lay statements presented sufficient evidence of the etiology of the Veteran's disability such that his claim could be proven without contemporaneous medical evidence). In doing so, the examiners failed to opine on the etiological relationship between the Veteran's in-service fall and his current disability of thoracolumbar degenerative arthritis. For this reason, the Board finds both opinions that only speak to the relationship between the Veteran's thoracolumbar degenerative arthritis and his cyst excision to be inadequate and afford both opinions no probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning). While the Board could remand the claim for another medical opinion as to the etiology of the Veteran's thoracolumbar degenerative arthritis, such a request as to this disability could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is unallowable. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 216 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the above reasons, the evidence is sufficient to decide the claim, as it is at least evenly balanced as to whether the Veteran's thoracolumbar degenerative arthritis is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for thoracolumbar degenerative arthritis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection from depressive disorder. As favorably found by the AOJ, the November 2022 VA examination report contains a diagnosis of unspecified depressive disorder with anxious distress. The Board is bound by this favorable finding, 38 C.F.R. § 3.104(c), and the current disability requirement has thus been met. Regarding the second element - existence of the disease or injury in service - in his VA Form 21-526EZ, the Veteran stated that during his service in Korea, the North Koreans attempted to sabotage bomb dumps and he heard nightly gunfire. Separately, the Veteran stated that he continued to have nightmares about falling from the wing of a plane. The Board finds that the Veteran is competent to report his experience serving in Korea and the injury sustained to his low back. Jandreau, 492 F. 3d at 1377. Therefore, the in-service element has been met. In a July 2022 VA appointment, the Veteran reported symptoms related to anxiety and insomnia, stating that he sleeps two to three hours per night "because [he's] afraid to go to sleep because [he] won't wake up." In his August 2022 VA psychiatry initial assessment, the Veteran shared chronic health problems that included back discomfort, hearing loss, headaches, which had worsened and caused issues sleeping, and depression and anxiety related to his health. In October 2022 the Veteran reported thinking about "just not being here," thoughts of self-harm while driving, and complained of sleeplessness, which he described as "a long time problem." The Veteran also reported dealing with chronic pain, and anxiety about the current political situation, which makes him worry about his financial situation. During the Veteran's November 2022 mental disorders VA examination, the Veteran denied any premilitary mental health issues or family mental health issues. With respect to mental health issues during service, the Veteran reported stress from working with a boss who did not like him; he denied obtaining mental health treatment while in service. The examination report notes that the Veteran started meeting with a mental health therapist monthly around three months before the examination. Regarding current symptoms, the examiner noted that the Veteran exhibited depressed mood, anxiety, and chronic sleep impairment. With respect to chronic sleep impairment, the Veteran reported sleeping four to five hours per night. He denied having sleep apnea and took Trazadone to fall asleep quickly. While he would wake up at night to urinate or after hearing noises, he reported going back to sleep and feeling rested and refreshed most mornings. In the accompanying VA medical opinion, the examiner noted the Veteran's statements regarding his service in Korea, including bomb dumps and hearing nightly gunfire. However, the examiner noted that his VA treatment records reflected feelings of depression and anxiety related to current health status, and political and situational stress that worried him about his financial situation. For this reason, the examiner provided a negative etiological opinion stating that the Veteran's unspecified depressive disorder with anxious distress is less likely than not incurred in or caused by the claimed in service injury, event, or illness. During the Veteran's February 2023 mental disorders VA examination, the examiner recorded a new diagnosis of persistent depressive disorder with anxious stress, with this diagnosis subsuming depression, anxiety, and insomnia. The Veteran reported after he fractured his tailbone, he returned to work and believed his supervisor thought he might be faking the injury. While he tried to complete his work, the Veteran had ongoing tailbone pain that caused poor and disrupted sleep in service. Separately, he reported difficulty sleeping due to his worry about the North Koreans infiltrating the base. The Veteran reported eventually struggling with insomnia, irritability, and mild social withdrawal during his service. He reported not having undergone a sleep study but being diagnosed with obstructive sleep apnea and treated with a continuous positive airway pressure (CPAP) device. Following the military, the Veteran conveyed struggling with depressive thinking, worry, fatigue, irritability, insomnia, and reduced pleasure from previously enjoyed activities. The Veteran stated that he sleeps five hours per night and wakes one to two times because of pain or discomfort. The examiner marked that the Veteran experienced depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances including work or work like setting area. In the March 2023 rating decision, the RO denied service connection because the Veteran's service treatment records did not contain complaints, treatment, or diagnosis for this condition. In April 2023, with his VA Form 20-0995, Decision Review Request: Supplemental Claim, the Veteran submitted a private examination and medical opinion completed by a clinical psychologist. The psychologist reported reviewing and analyzing the Veteran's service records, statements, various treatment records, as well as interviewing the Veteran. The examination report reiterated the Veteran' statements in his February 2023 examination regarding his experience in Korea, including his fractured tailbone, and exposure to gunfire on a nightly basis. The psychologist further noted the Veteran's reports that he did not seek treatment in service for his symptoms because of the associated stigma and being seen as weak. Following his surgery after service, the Veteran reported that his constant pain and inability to sleep resulted in limited employment opportunities abilities, suicidal ideation, and depression. As of April 2023, he continued to experience anger outbursts, nervousness and anxiety, excessive worry, becoming easily annoyed or irritable, anhedonia, depression, hopelessness, chronic sleep impairment, nightmares and flashbacks, and isolation. While the Veteran used to enjoy going out, playing golf and socializing with others, he no longer had the interest, ability, or motivation because of his mental health issues. Based on the foregoing and no evidence suggesting that the Veteran had psychological difficulties prior to military service, the psychologist opined that the Veteran's unspecified depressive disorder with anxious distress is at least as likely as not directly the result of and attributed to his military service. The psychologists providing etiological opinions regarding the Veteran's depressive disorder with anxiety have provided reasoning in support of their conclusions and are therefore adequate. The positive etiological opinion submitted by the Veteran focused on the Veteran's physical and mental trauma, and his reported mental health symptoms during service that have continued to present, including excessive worry and irritability, chronic sleep impairment, isolation, withdrawal, and anhedonia. In contrast, the VA examiner rendered a negative etiological opinion based on the Veteran's treatment records and in-person examination, which focused on the stressors and events unrelated to the Veteran's physical and mental trauma incurred in service, including the stress related to his health condition and current events. As both the "medical expert[s] ha[ve] applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion," the Board can find no basis upon which to assign greater probative weight to one opinion compared to the others. Nieves-Rodriguez, 22 Vet. App. at 304. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran's depressive disorder with anxiety is related to his service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for depressive disorder is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for sleep disturbances. As explained above, the Veteran has consistently reported issues with sleeping following his fall from a plane and service in Korea, which included nightmares and frequent wakings due to pain or discomfort. Notably, there are no complaints, symptoms or diagnoses in the service treatment records related to sleep disturbances, the Veteran's separation examination did not note sleep disturbances and, the Veteran did not indicate that he experienced sleep related symptoms in the separation report of medical history. In his November 2022 mental disorders examination, the examiner noted the Veteran's statements regarding sleep impairment, noting that the Veteran denied sleep apnea and generally woke up refreshed when he took his medications. While the examiner marked that the Veteran experienced chronic sleep impairment, the examiner did not otherwise provide a diagnosis separate from his unspecified depressive disorder with anxious distress. In his February 2023 mental disorder VA examination, the examiner provided the diagnosis of persistent mild depressive disorder with anxious distress, specifically noting that the diagnosis subsumes depression, anxiety, and insomnia. In this examination, the Veteran detailed his psychological symptoms during and following military service, recalling poor and disrupted sleep during service after his fall and noting that he is currently sleeping five hours per night. The Veteran stated he had obstructive sleep apnea that was treated with a CPAP machine. In the private April 2023 examination, the psychologist diagnosed unspecified depressive disorder, and while acknowledging the Veteran's chronic sleep impairment, did not identify a disorder related to sleep disturbances. The current disability element of a service connection claim is defined broadly. Saunders v. Wilkie, 886 F.3d 1356, 1364-65 (Fed. Cir. 2018) (Fed. Cir. 2018) (pain can constitute disability if it results in impairment of earning capacity) and need not be shown at the time of the Board decision. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim); Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, while the Veteran can competently and credibly explain his observable sleep disturbances that have continued since service, these observations cannot serve as the basis for an insomnia disorder diagnoses. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to prove that a claimant exhibited certain lay-observable symptoms and the time that those symptoms appeared); Jandreau, 492 F.3d at n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). To award service connection for psychiatric disorders, including insomnia disorder, the psychiatric disabilities must be diagnosed in conformity with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020), aff'd sub nom. Martinez-Bodon v. McDonough, 28 F.4th 1241, 1247 (Fed. Cir. 2022) (a valid DSM-5 diagnosis is required to warrant compensation for a psychiatric disability). In this case, two VA examiners and the private psychologist, after considering the Veteran's statement regarding frequent wakening and chronic sleep impairment, declined to provide a diagnosis of insomnia disorder. Instead, the psychologists uniformly determined that the Veteran's chronic sleep impairment was a symptom of depressive disorder with anxiety and not a separate DSM-5 diagnosis. Further, the evidence of record does not demonstrate that the Veteran had sleep apnea at any time during the pendency of the claim. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (holding that section 1110 of the statute requires the existence of a current disability for VA compensation purposes). While the Veteran stated that he struggled with obstructive sleep apnea during the February 2023 examination, which he treated with a CPAP, he is not competent to diagnose this complex medical disorder. While the Veteran is competent to report a diagnosis of sleep apnea, Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (a layperson is competent to report a contemporaneous medical diagnosis), he did not do so. Moreover, there is no competent, probative medical opinion in the record containing a diagnosis of sleep apnea. Thus, although symptoms of sleep disturbance such as chronic sleep impairment have been shown, in the circumstances of this case, where the Veteran will be compensated for his sleep impairment based on the grant of service connection for depressive disorder herein, the lack of a diagnosis of sleep apnea or any separate sleep-related disability at any point during the claim period or approximate thereto warrants denial of the claim for service connection for sleep disturbances as it was characterized by the AOJ. The Board need not recharacterize the disability in light of the grant of service connection for depressive disorder encompassing chronic sleep impairment. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for sleep disturbances is warranted. Rather, the evidence persuasively weighs against service connection for this claimed disability. The benefit of the doubt doctrine, see 38?U.S.C. §?5107(b), 38 C.F.R. § 3.102, is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). REASONS FOR REMAND Entitlement to service connection for chronic kidney disease, stage 2. In his October 2022 VA Form 21-526EZ, the Veteran stated that in May of 2022 he was diagnosed as being morbidly obese, and that he cannot exercise because of his back pain, sciatica, anxiety, depression and sleeplessness. In the Veteran's December 2022 higher-level review conference, the Veteran identified obesity as an intermediate step between his mental disorder, his low back condition or his bilateral lower radiculopathy in the development of his chronic kidney disease, stage 2. During the Veteran's February 2023 kidney conditions VA examination, the Veteran stated that the condition began in an unknown time frame during service with random occurrences, and that he had a history of kidney stones. The symptoms for the condition included constant urination and erectile dysfunction with worsening over the years. The February 2023 VA examiner did not offer an opinion about whether the Veteran's chronic kidney disease, stage 2 was related to or caused by service, despite the Veteran's report that the condition began during service. The examiner did not opine on whether, as the Veteran clarified in his higher-level review conference, whether his chronic kidney disease, stage 2 is secondary to his thoracolumbar degenerative arthritis or depressive disorder with anxiety with obesity as an intermediate step. VAOPGCPREC 1-2017 (obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310 (a)). Thus, remand based on this pre-decisional duty to assist error is warranted to obtain VA opinions. 38 U.S.C. § 5103A (f)(2)(A); 38 C.F.R. § 20.802 (a). Accordingly, the matter is REMANDED for the following action: Obtain an opinion from an appropriate VA clinician. The clinician should review the claims file prior to rendering an opinion. The clinician should indicate whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's chronic kidney disease is related to or had its onset in service. The clinician should also indicate whether the Veteran's obesity was caused or aggravated by service-connected thoracolumbar degenerative arthritis, depressive disorder, or other service-connected disability. If so, the clinician should indicate (1) whether the Veteran's obesity, or its aggravation, was a substantial factor in causing the chronic kidney disease and (2) the Veteran's chronic kidney disease would not have occurred but for the obesity. In addressing the above, the clinician should consider the Veteran's October 2022 statement that he cannot exercise because of his thoracolumbar degenerative arthritis and his depressive disorder with anxiety. The clinician must consider the Veteran's statements and is advised the Veteran is competent to report observable symptoms. A complete rationale should accompany any opinion provided. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. T. Mowell, Associate 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.