COLD INJURY RESIDUALS

K. CONNER · 2026 · Case ID: A26040848

MIXED

Summary

The veteran, who served in the U.S. Army from July 1983 to June 1992, including service in Southwest Asia from December 1990 to May 1991, appeals the denial of service connection for PTSD and a back disability. The veteran also sought readjudication of previously denied claims for cold injury of the right foot and left and right knee disabilities. The Board found that no new and relevant evidence was submitted to support readjudication of the foot and knee claims, upholding the prior denials. For the back condition, the Board found the VA examination inadequate because the examiner failed to address all relevant treatment records and lay contentions regarding the veteran's chronic low back pain dating from an in-service motor vehicle accident. The case was remanded for a new VA examination to address the nexus for the back condition. For PTSD, the Board found the VA examination inadequate as the examiner did not review all available treatment records documenting chronic PTSD and failed to adequately address the conceded in-service stressor. The case was remanded for a new VA examination to address the diagnosis and nexus for PTSD, and to consider any other acquired psychiatric disorders. Service connection for the previously denied cold injury of the right foot, left knee disability, and right knee disability remains denied.

Rationale

No new and relevant evidence submitted; STRs did not document complaint, treatment, or diagnosis of cold injury; Post-service records silent for residuals of cold injury

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

230118-314119

Full Decision Text

Citation Nr: A26040848
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 230118-314119
DATE: April 30, 2026

ORDER

New and relevant evidence having not been received, the application to readjudicate the previously denied claim of service connection for cold injury of right foot is denied.

New and relevant evidence having not been received, the application to readjudicate the previously denied claim of service connection for left knee disability is denied.

New and relevant evidence having not been received, the application to readjudicate the previously denied claim of service connection for right knee disability is denied.

REMANDED

Entitlement to service connection for a back disability is remanded.

Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.

FINDINGS OF FACT

1. A June 2011 rating decision denied service connection for cold injury of the right foot.

2. A May 2013 rating decision denied service connection for left and right knee disabilities.

3. In April 2022, the Veteran, through his attorney, submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, seeking readjudication of the claims of service connection for cold injury of the right foot, left knee disability, and right knee disability.

4. Evidence presented or secured since the June 2011 rating decision and prior to the issuance of the August 2022 rating decision on appeal or submitted within the applicable evidentiary window does not tend to prove or disprove a matter at issue in the claim of entitlement to service connection for cold injury residuals of the right foot.

5. Evidence presented or secured since the May 2013 rating decision and prior to the issuance of the August 2022 rating decision on appeal or submitted within the applicable evidentiary window does not tend to prove or disprove a matter at issue in the claims of entitlement to service connection for left and right knee disabilities.

CONCLUSIONS OF LAW

1. The criteria for readjudication of the claim of entitlement to service connection for cold injury of the right foot have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d).

2. The criteria for readjudication of the claim of entitlement to service connection for left knee disability have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d).

3. The criteria for readjudication of the claim of entitlement to service connection for right knee disability have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(d).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U. S. Army from July 1983 to June 1992. He was a member of the Army Reserve from June 1992 to August 1995.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), the Agency of Original Jurisdiction (AOJ), which, inter alia, denied service connection for PTSD and a back disability, as well as determined that new and relevant evidence had not been submitted to readjudicate previously denied claims of service connection for cold injury of the right foot, left knee bruise, and right knee condition.

On January 18, 2023, the Veteran, through his attorney, Alexandra M. Jackson, submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which Ms. Jackson identified the August 2022 AOJ decision, the issues as "Service connection for cold injury, right foot," "Service connection for left knee bruise," "Service connection for right knee condition," "Service connection for posttraumatic stress disorder," and "Service connection for back injury diagnosed as lumbar strain." Ms. Jackson elected the Hearing docket.

In a letter dated October 31, 2025, the Board notified the Veteran and his attorney of the time and date of the requested Board hearing, to be held on January 27, 2026. In a correspondence dated January 2, 2026, Ms. Jackson withdrew the hearing request, indicated that she would be submitting a memo in lieu of attending the hearing, and asked that the Board stay adjudication of the appeal for 90 days for that purpose. At her request, the Board stayed adjudication of the appeal for 90 days. Unfortunately, however, Ms. Jackson failed to submit any additional evidence or argument in support of the Veteran's appeal.

Therefore, the Board
the Hearing docket.

Therefore, the Board may only consider the evidence of record at the time of the August 2022 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his 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 decision on appeal 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.

1. Whether new and relevant evidence has been submitted to readjudicate the claim of service connection for cold injury of right foot.

2. Whether new and relevant evidence has been submitted to readjudicate the claim of service connection for left knee disability.

3. Whether new and relevant evidence has been submitted to readjudicate the claim of service connection for right knee disability.

The Veteran seeks readjudication of previously denied claims of entitlement to service connection for cold injury of the right foot, left knee disability, and right knee disability. After reviewing the record, the Board finds that new and relevant evidence has not been received.

The Veteran filed an initial claim of service connection for cold injury of the right foot in December 2010. The evidence of record at the time of the December 2010 claim included his service treatment records (STRs), none of which documented the presence of complaints or findings indicative of a cold injury of the right foot. The evidence of record also included the Veteran's post-service clinical records, which did not document any complaint of or treatment for a cold injury of the right foot. The Veteran's service personnel records were also of record and showed that he served in Southwest Asia from December 1990 to May 1991. His military occupational specialty (MOS) was administrative specialist. STRs did not document any diagnoses of cold injury during the Veteran's active duty service. STRs dated in an October 1985 noted the Veteran's complaint of right leg pain of one day duration; he did not report a cold injury at that time. Physical examination of his leg was normal. See the STR dated October 1985. The Veteran sought treatment for complaints of bilateral shin splints in October 1987; however, he did not report a cold injury at that time. In November 1990, the Veteran reported right ankle pain, which was noted to be "[p]ossible tendinous." A cold injury was not indicated at that time. See the STR dated November 1990. Notably, in his May 1992 Report of Medical History at separation, the Veteran expressly denied having or ever having had 'foot trouble.' Physical examination revealed that the Veteran's lower extremities and feet were normal at his separation examination in May 1992.

In a June 2011 rating decision, the AOJ, inter alia, denied entitlement to service connection for cold injury of the right foot, finding that the Veteran's service treatment records contained no evidence of complaint, treatment for, or diagnosis of cold injury to the right foot, nor had the Veteran provided any medical evidence to show that he currently had any disability as a result of a cold injury to the right foot.

In October 2011, the Veteran filed a claim of entitlement to service connection for a bilateral knee disability. The evidence of record at the time of the October 2011 claim included an October 1985 STR noting the Veteran's complaint of right leg pain of one day duration; physical examination of his leg was normal at that time. An October 1987 STR documented the Veteran's report of bilateral shin splints that began about two weeks ago. He stated that he is having pain with walking, running, and when standing for long periods. See the STR dated October 1987. A July 1989 STR noted the Veteran's report of a knot in his right leg, which began when he started running in the morning. He was noted to have a possible muscle cramp or spasm. See the STR dated July 1989. An STR dated November 1990 noted the Veteran's report of left knee pain, which was noted to be "[p]ossible tendinous." He was treated for a sore right thigh muscle in August 1990, after sustaining a minor bruise while playing basketball. A May 1992 STR documented the Veteran's complaint of left knee pain of one day duration. He stated that his knee hit another person's knee while playing basketball. He reported that "he has never had knee problems before." The Veteran was noted to have a possible bruise under his kneecap and was diagnosed with a soft tissue injury. In his May 1992 Report of Medical History at separation, the Veteran endorsed 'swollen or painful joints' and 'cramps in your legs' which the clinician performing the examination noted pertained "to [physical training] only." On the report of medical history, the Veteran specifically denied having, or ever having had, 'arthritis, rheumatism, or bursitis,' and 'trick or locked knee.' See the Report of Medical History dated May 1992. The Veteran's May 1992 separation examination indicated that physical examination of the Veteran's right and left lower extremities was normal.

The Veteran was afforded a VA examination in February 2012 at which he claimed to have knee pain when sitting immobile for a long period of time. The examiner noted the contusion of the left knee, diagnosed in 1992. The examiner explained, "Veteran had one single knee bruise on left playing basketball in February 1992. Now claims bilateral knee condition from service." The examiner determined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, "[t]he injury to left knee was a bruise only ("soft tissue") and right knee not involved at any time." The examiner further stated, "soft tissue injury to left knee would not result in bilateral chronic knee condition."

In a May 2013 rating decision, the AOJ, inter alia, denied service connection for a left knee disability, finding no nexus between the current disability and service. The AOJ also denied service connection for a right knee condition, finding no evidence of an event, disease, or injury in service. See May 28, 2013, notification letter.

In April 2022, Ms. Jackson submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim. She submitted no argument or additional explanation regarding the Veteran's theory of entitlement. On the section of the form for identifying the location and dates of records of VA treatment, Ms. Jackson wrote "Central Arkansas Veterans Healthcare System," but failed to provide any dates of treatment.

Nonetheless, in support of the claim, the AOJ obtained VA treatment records dated from February 2014 to May 2022, which are silent for reports or findings of residuals of a cold injury of the right foot or diagnoses of right or left knee disabilities.

In an August 2022 decision, the RO determined that new and relevant evidence had not been submitted to readjudicate the cold injury of the right foot, left knee disability, and right knee disability claims. As indicated above, Ms. Jackson filed a VA Form 10182 and elected the Hearing docket. After the hearing had been scheduled, however, Ms. Jackson
wrote "Central Arkansas Veterans Healthcare System," but failed to provide any dates of treatment.

In an August 2022 decision, the RO determined that new and relevant evidence had not been submitted to readjudicate the cold injury of the right foot, left knee disability, and right knee disability claims. As indicated above, Ms. Jackson filed a VA Form 10182 and elected the Hearing docket. After the hearing had been scheduled, however, Ms. Jackson withdrew the request for a Board hearing and indicated that she would submit a brief in lieu of attending the hearing. See the letter from Ms. Jackson dated January 2026. Ms. Jackson, however, did not thereafter submit any additional evidence or argument in support of the claims.

After reviewing the record, the Board finds that the evidence presented or secured since the June 2011 rating decision as to the cold injury claim and the May 2013 rating decision as to the right and left knee claims is not new and relevant. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501(a)(1). Relevant evidence is evidence that tends to prove or disprove a matter at issue. Id. Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.

As noted above, neither the Veteran nor Ms. Jackson submitted any evidence in support of the April 2022 supplemental claim, although she identified a VA treatment facility. The record which the AOJ obtained from that facility, however, are silent for reports or findings of residuals of a cold injury of the right foot or diagnoses of right or left knee disabilities.

The Board therefore finds that the evidence associated with the record following the issuance of the June 2011 (cold injury residuals) and May 2013 (left and right knee disabilities) rating decisions is not new and relevant as to the claims of entitlement to service connection for cold injury of the right foot, left knee disability, and right knee disability as it does not prove or disprove any matter at issue in the claim.

The Board acknowledges that the phrase "a matter at issue" is not defined in the regulation. In Kisor v. McDonough, 995 F.3d 1347 (Fed. Cir. 2021), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that for a new service record to be "relevant" for the purpose of reconsideration under 38 C.F.R. § 3.156(c)(1), it must address a factual issue that was dispositive against the veteran in the prior VA adjudication. In so holding, the Federal Circuit stated that such a definition of relevant is "consistent with the definition for that term in connection with 'supplemental claims' under the [AMA]." Id. at n. 4.

In addition, although the Board is not bound by the M21-1, the Board "is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). The Board errs when it fails to adequately consider relevant guidance "promulgated for the purpose of facilitating the efficient and proper resolution of claims," even if the guidance is not binding. Healey v. McDonough, 33 Vet. App. 312, 321 (2021). To this end, the Board recognizes VA's adjudicatory guidance on section 3.2501 states that "[n]ew evidence that affirms findings previously deemed favorable to the claimant is still relevant. There is no requirement that relevant evidence prove a previously unsubstantiated matter." VA's Adjudication Procedures Manual (M21-1), pt. X, subpt. ii, ch. 2, § A.2.d.

The Board declines to apply this non-binding guidance as it directly conflicts with the express definition of "relevant" contained in the regulation. Specifically, under the binding regulation, 38 C.F.R. § 3.2501(a), "Relevant evidence is information that tends to prove or disprove a matter at issue in a claim." The critical part of this definition is the phrase "at issue." In context, this phrase is most consistent with "in dispute." In other words, new evidence must pertain to a fact that was previously in dispute at the time of the prior, final denial. This is consistent with the Kisor holding that for a new service record to be "relevant" for the purpose of reconsideration under 38 C.F.R. § 3.156(c)(1), it must address a factual issue that was dispositive against the veteran in the prior VA adjudication. Moreover, the Board notes that "at issue" would be superfluous if the regulation was intended to include all matters of a claim, including those previously conceded or no longer at issue. There is no indication in the statute, regulation, or the regulatory history of the meaning set forth in the note of M21-1. See 84 Fed. Reg. 138 (Jan. 18, 2019). As the alternative meaning in the M21-1 directly conflicts with this interpretation, the Board declines to adopt it.

Even adopting the M21-1 guidance, the Board finds that new and relevant evidence has not been presented or secured. The Board has considered the additionally-obtained VA treatment records noting complaints of foot symptoms in 2015 and knee pain in 2016. Subsequent records dated to May 2022, however, are entirely silent for reports of foot or knee symptoms, pathology, or diagnoses, including those records created during the pendency of the claims or recent to the filing of the claims. McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the current disability requirement is satisfied only when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim). Moreover, these records (and the claims form filed by Ms. Jackson) do not contain notations of symptoms which result in manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8, 15 (2020). Thus, this evidence does not tend to prove or disprove a current disability for any of the claims. Additionally, none of this evidence contains any reference to an in-service disease or injury, nor does it speak to a nexus to service.

In summary, the Board finds that the evidence presented or secured after the June 2011 (cold injury residuals) and May 2013 (left and right knee disabilities) rating decisions is not new and relevant. Accordingly, the claims of entitlement to service connection for cold injury residuals, left knee disability, and right knee disability may not be readjudicated, and the appeal is denied.

REASONS FOR REMAND

1. Entitlement to service connection for a back disability is remanded.

The Veteran asserts entitlement to service connection for a back disability. In that regard, in March 2022, Ms. Jackson submitted a Decision Review Request: Supplemental Claim, on which she sought service connection for "back injury."

In the August 2022 rating decision, the AOJ made the following favorable findings:

The evidence shows that a qualifying event, injury, or disease had its onset during your service. You suffered with acute back pain due to a MVA in service.

You have been diagnosed with a disability. The evidence shows a diagnosis of lumbar strain.

Notably, the Veteran's STRs show that he complained of back pain following a motor vehicle accident in June 1988. In May 1989, the Veteran again sought treatment for back pain. He stated that he was just standing in the kitchen washing dishes when his back began hurting; the pain was noted to be in his mid-back. See the STR dated May 1989. The Veteran denied any heavy lifting or trauma, and explained that he has a sitting job. He was noted to have left lumbar paraspinous muscle tenderness, dual spasms. Id. The treatment provider diagnosed the Veteran with musculoskeletal strain probably secondary to improper posture. Id. The Veteran sought treatment for back pain several days later in May 1989, at which time he reported continuing back pain. He indicated that there was no direct or indirect trauma relatively prior to onset of pain. Only history is incident of an auto accident x 8 months." See the STRs dated May 1989. The treatment provider indicated that the Veteran exhibited full range of motion; an assessment of muscular low back pain was indicated. Id. The Veteran was again treated for back pain in July 1989. The Veteran endorsed 'recurrent back pain' in the Report of Medical History dated May 1992. Physical examination of the Veteran's spine was noted to be normal upon separation. See the Report of Medical Examination dated May 1992.'

Post-service treatment records dated February 2012 documented the Veteran's report of low back pain. A complaint of back pain was again noted in VA treatment records dated March 2016.

The Veteran was afforded a VA examination in May 2022 at which time the examiner diagnosed him with a lumbosacral strain. The examiner noted that the "Veteran injured back in a motor vehicle accident. Veteran states that he went to sick call over the years because of the back condition. He went to a civilian physician after the accident. He states that the pain has continued over the years."

In a separate medical opinion, the May 2022 VA examiner determined that the claimed back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner provided the following rationale:

After review of the records it is less likely than not that the current back condition is a result of an in-service event. The Veteran was treated in 1988 after being involved in an accident. The back condition in 1988 appears to have resolved as there is no evidence of continuity of treatment noted for the back condition for a period in excess of ten years and as such no nexus has been established.

Critically, although the May 2022 VA examiner considered the Veteran's back injury at the time of the June 1988 motor vehicle accident, he failed to address the Veteran's subsequent treatment for back pain in May 1989 and July 1989. Moreover, the examiner did not address the Veteran's lay contentions of chronic low back pain dating from his in-service injury. See Miller v. Wilkie, 32 Vet. App. 249, 260 (2020).

As such, the medical evidence of record is inadequate to adjudicate the Veteran's claim. VA's duty to assist includes ensuring that an examination report or opinion obtained is adequate. 38?C.F.R. § 3.159(c);? Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). The Board finds that the failure to obtain an adequate VA examination with medical opinion is a pre-decisional duty to assist error. Upon remand, the Veteran should be afforded a new VA medical opinion to address outstanding the questions of nexus.

2. Entitlement to service connection for an acquired psychiatric disability to include PTSD is remanded.

As an initial matter, the Board notes that while this appeal was pending, in August 2025, the Veteran himself submitted a VA form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on which he sought service connection for depression, secondary to his service-connected bilateral eye disability. In an October 2025 rating decision, the RO granted service connection for persistent major depressive disorder, secondary to the service-connected bilateral eye disability. The RO assigned an initial 70 percent disability rating, effective from August 22, 2025, the date of receipt of the claim. See Green v. McDonough, 37 Vet. App. 127, 136 (2024) (adjudications are not evidence and can
, the Board notes that while this appeal was pending, in August 2025, the Veteran himself submitted a VA form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on which he sought service connection for depression, secondary to his service-connected bilateral eye disability. In an October 2025 rating decision, the RO granted service connection for persistent major depressive disorder, secondary to the service-connected bilateral eye disability. The RO assigned an initial 70 percent disability rating, effective from August 22, 2025, the date of receipt of the claim. See Green v. McDonough, 37 Vet. App. 127, 136 (2024) (adjudications are not evidence and can be considered if they are outside of the evidentiary window).

In this appeal, the Veteran asserts entitlement to service connection for PTSD, which he contends was incurred during his active duty service. In that regard, in March 2022, Ms. Jackson submitted a Decision Review Request: Supplemental Claim, on which she sought service connection for "posttraumatic stress disorder."

In the August 2022 rating decision, the AOJ made the following favorable findings: "[a] stressor is conceded based on service in SW Asia."

In a January 2012 stressor statement, the Veteran described fearing for his life as a result of SCUD missile attacks while stationed at King Fahd Port in Saudi Arabia, as well as while working as the battalion commander's driver during his service in Southwest Asia.

VA treatment records dated in November 2012 noted the Veteran's alcohol use. A March 2016 VA mental health diagnostic assessment noted the Veteran's report that he has been having "meltdowns for a while." He stated that he "thinks he has had an anger problem for years." The Veteran described military stressors sustained during his service in Southwest Asia. He endorsed depression, anxiety, and anger. Pursuant to the DSM-V criteria, the VA psychiatrist diagnosed the Veteran with anxiety disorder unspecified (rule-out PTSD), depression unspecified, alcohol use disorder, and cannabis use disorder.

VA treatment records dated in June 2016 and June 2020 documented continuing diagnoses of anxiety unspecified, depression unspecified, cannabis use disorder, and alcohol use disorder. VA treatment records dated in June 2021 indicated that the Veteran had a diagnosis of chronic PTSD following military combat.

VA mental health treatment records dated in April 2022 indicated that the Veteran was previously seen by Dr. E. in 2016 and diagnosed with alcohol use disorder, cannabis use disorder, anxiety unspecified, and depression unspecified. It was noted that the Veteran missed follow-up appointments with Dr. E., as well as the STS program. The April 2022 VA treating psychiatrist, Dr. K., explained that today the Veteran scored a 53 on the PTSD checklist, and his chief difficulties were avoidance, feeling distant, and difficulty with sleep. Dr. K. indicated that the Veteran has reported chronic PTSD symptoms. VA treatment records dated in May 2022 documented continuing diagnoses of chronic PTSD, persistent adjustment disorder, alcohol abuse, and cannabis abuse.

The Veteran was afforded a VA examination in May 2022 at which time the examiner reported that the "Veteran's symptoms do not meet the diagnostic criteria for PTSD under DMS-5 criteria." The examiner also indicated that the "Veteran does not have a mental disorder that conforms with DSM-5 criteria." The examiner stated, "[t]here is no objective evidence to support the claimed diagnosis at this time." Critically, although the VA examiner indicated that the objective evidence does not support the claimed diagnosis at this time, the examiner also stated that "no records since 2012 were in C-file to review current treatment." As such, the examiner was unable to review documentation of the Veteran's continuing diagnoses, including chronic PTSD, as documented in VA treatment records.

As such, the medical evidence of record is inadequate to adjudicate the Veteran's claim. VA's duty to assist includes ensuring that an examination report or opinion obtained is adequate. 38?C.F.R. § 3.159(c);? Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). The Board finds that the failure to obtain an adequate VA examination with medical opinion is a pre-decisional duty to assist error. Upon remand, the Veteran should be afforded a new VA examination to address outstanding the questions of diagnosis and nexus.

The matters are REMANDED for the following action:

1. Refer the VA claims file to a clinician for an opinion on the etiology of the claimed back disability. After reviewing the relevant evidence of record, the clinician
. § 3.159(c);? Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that where VA provides the veteran with an examination in a service connection claim, the examination must be adequate). The Board finds that the failure to obtain an adequate VA examination with medical opinion is a pre-decisional duty to assist error. Upon remand, the Veteran should be afforded a new VA examination to address outstanding the questions of diagnosis and nexus.

The matters are REMANDED for the following action:

1. Refer the VA claims file to a clinician for an opinion on the etiology of the claimed back disability. After reviewing the relevant evidence of record, the clinician should provide an opinion, with supporting rationale, as to the following:

Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the diagnosed back disability was incurred in the Veteran's active duty service or is causally related to an in-service disease or injury, to include as noted in STRs dated June 1988, May 1989, and July 1989 (referenced above)?

In providing the requested opinion, the examiner must consider the Veteran's description of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms in service and thereafter represented the onset of his claimed disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the current back disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? The Board has not made a credibility determination pending the examiner's opinion.

2. Schedule the Veteran for a VA examination in connection with the claim of service connection for PTSD. After reviewing the record and examining the Veteran, the examiner provide an opinion, with supporting rationale, as to the following:

(a). Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran currently has PTSD or has had PTSD at any point during the pendency of the claim, i.e. since September 2022?

(b). If PTSD is diagnosed, the examiner should indicate whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's PTSD is due to an in-service stressor that has been corroborated by the evidence of record. The examiner is advised that the AOJ has made the following favorable findings: "[a] stressor is conceded based on service in SW Asia."

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(c). If any other psychiatric disability is identified, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that any currently diagnosed acquired psychiatric disorder other than PTSD had its onset in service or is otherwise related to a disease or injury incurred in service.

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board K. K. Buckley, 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.

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