Citation Nr: 19158181 Decision Date: 07/26/19 Archive Date: 07/26/19 DOCKET NO. 18-54 401 DATE: July 26, 2019 ORDER Service connection for a headache disorder, including cephalgia, is denied. Service connection for a low back disability is denied. REMANDED An initial rating higher than 50 percent for unspecified anxiety disorder with alcohol use disorder is remanded. FINDINGS OF FACT 1. Service incurrence of a disease or injury linked to the Veteran’s headache disorder, including cephalgia, is not established. 2. Service incurrence of a disease or injury linked to the Veteran’s low back condition is not established. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s headache disorder, including cephalgia, have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for the Veteran’s headache disorder, including cephalgia, have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to March 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show the following: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Headaches (Cephalgia) and Low Back Condition The Veteran states that he injured his back and neck when he fell while helping to battle a fire on board his ship (the U.S.S. Iwo Jima). (April 2016 Examination Report by P.Y., D.C.). He also states he injured his neck when his ship encountered a severe storm and he had to go below deck to help secure the ship. (July 2016 VA Form 21-0781.) He seeks service connection for cephalgia and a low back disability based on these asserted injuries. For the following reasons, the Board finds that service connection is not established for either disability. An in-service disease or injury is not established. The Veteran’s service treatment records do not document back or neck injuries. His February 1975 separation examination report reflects a normal clinical evaluation of his spine and neck. Moreover, he does not state he was treated for such injuries during service. There are no post-service treatment records in the file. The fire and storm described by him are also not documented in the file. However, even if the occurrence of the fire or storm were verified through deck logs or otherwise, such verification would still not be sufficient to establish that the Veteran sustained injuries in these events. The Veteran’s statements alone do not establish that he injured his neck or back in service. Because the injuries related by him did not occur in combat, the combat presumption does not apply. See 38 U.S.C. § 1154(b); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). Consequently, his lay statements alone do not constitute sufficient proof that the injuries occurred. See id. When determining whether a disease or injury occurred in service that is unrelated to combat, the Board must give due consideration to the places, types, and circumstances of the veteran’s service as shown by the veteran’s service record, the official history of each organization in which the veteran served, the veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Letters to the Veteran from VA dated in August 2016 and November 2016 notified him of the types of evidence that could be submitted or identified for VA to obtain on his behalf that would help support the claims, including witness statements and post-service treatment records. He has not submitted or identified any such evidence, despite ample opportunity to do so. As to the places, types, and circumstances of his service, the sole fact that the Veteran served on a ship on which there was a fire or which encountered a severe storm—assuming these events could be established—is not sufficient to determine that he sustained the injuries he described. It would merely show that he was aboard the ship when these events occurred. The only evidence submitted by the Veteran in support of these claims is an April 2016 consultation report by P.Y., a private chiropractic physician. In that report, the physician opined that the Veteran’s low back pain and cephalgia were caused by his in-service injuries as described by him. This report does not constitute supporting evidence that the injuries in fact occurred, but is solely based on the Veteran’s reported history. As that reported history was made around the same time the Veteran filed his claims for service connection, in April 2016, and in the context of seeking a medical opinion to support them, it is not sufficient to establish that the claimed injuries occurred for the reasons discussed above. Thus, the April 2016 report by Dr. P.Y., which relies exclusively on that reported history, does not support the occurrence of the claimed in-service injuries. As the Veteran’s February 1975 separation examination report reflects that his spine and neck were clinically evaluated as normal, and as his lay statements alone—including those recorded and relied on in the April 2016 report by Dr. P.Y.—are not sufficient to establish that he injured his neck or back in service as he describes, let alone to determine whether such injuries may be linked to his current claimed disabilities, the preponderance of the evidence weighs against incurrence of a disease or injury in service with respect to the Veteran’s cephalgia and low back condition. (The issue of aggravation is moot, since there is no indication of a pre-existing condition noted at entrance.) In sum, service incurrence of a disease or injury is not established with respect to the claims for a low back disability and a headache disorder (cephalgia). Therefore, the criteria for service connection are not satisfied. See Holton, 557 F.3d at 1366. Because the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND A new VA examination is warranted to make an informed decision on the proper evaluation of the Veteran’s service-connected psychiatric disorder. Of record is an April 2016 VA disability benefits questionnaire filled out by a private psychologist, and an April 2017 VA examination report. While relatively proximate in time to each other, the reports are significantly disparate in their findings. Moreover, the April 2017 VA examiner indicated that the Veteran’s responses on testing were unreliable, suggesting that the accuracy of his reported symptoms and functional impairment was in question. Thus, a new examination is warranted. The matters are REMANDED for the following action: 1. Request the Veteran to identify any treatment records pertaining to his psychiatric disorder. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release. He should also be invited to submit these records himself. 2. Arrange for a VA examination to assess the severity of the Veteran’s service-connected psychiatric disorder. In addition to all other pertinent findings, the examiner is asked to provide a supporting discussion explaining any findings the examiner makes as to the degree of the Veteran’s occupational and social impairment. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Buck Denton 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.