Citation Nr: 20080098 Decision Date: 12/18/20 Archive Date: 12/18/20 DOCKET NO. 12-00 062A DATE: December 18, 2020 ORDER Entitlement to service connection for a neck disability, to include arthritis, is granted. REMANDED Entitlement to service connection for a back disability, to include arthritis, is remanded. FINDING OF FACT The Veteran’s current neck disability is a result of an in-service injury. CONCLUSION OF LAW The criteria for service connection for a neck disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1957 to May 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in his January 2012 substantive appeal; however, he subsequently withdrew his request for a hearing in December 2016 and May 2017. This matter was previously remanded by the Board in October 2017. The case has been returned to the Board at this time for further appellate review. This appeal has been advanced on the Board’s docket pursuant to 38C.F.R. §20.900(c). Entitlement to service connection for a neck disability, to include arthritis, is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In March 2019, a VA clinician opined that it is at least as likely as not that a compression neck injury (being hit by a cherry picker, as the Veteran has claimed occurred in service) produced the neck condition described in VA hospital records of 1980 with surgery and fusion as described. The March 2019 VA examination report reflects that the VA clinician reached this opinion despite the absence of service treatment record data of the incident, but with the record as noted. VA obtained additional medical opinions in July and September 2020 that weigh against the Veteran’s claim; however, the Board finds both of these opinions inadequate because they impermissibly dismissed the Veteran’s lay reports of incurrence of a neck injury solely because of a lack of corroborating contemporaneous medical records. Accordingly, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s neck disability was caused by an in-service injury. By resolving the benefit of reasonable doubt in favor of the Veteran, the Board finds service connection for a neck disability is warranted. REASONS FOR REMAND Entitlement to service connection for a back disability, to include arthritis, is remanded. A veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. Id. Here, no back conditions were noted on the Veteran’s enlistment examination report. Thus, the Board finds that the presumption of soundness attaches in this case. In addition, although the Veteran reported that he had pre-existing back conditions multiple times, the Board does not find this is sufficient evidence to demonstrate by clear and unmistakable evidence that the Veteran had a pre-existing back injury at the time of entry into military service. Therefore, the Board finds that the presumption of soundness has not been rebutted. Thus, the question is one of direct service connection. This matter was remanded in October 2017, in part, to obtain a VA opinion regarding the Veteran’s claim of entitlement to service connection for a back disability. The Veteran was afforded a VA examination in March 2019. The VA examiner provided a negative etiology opinion which the Board finds inadequate because the VA clinician did not provide a cogent rationale. The examiner stated that the Veteran’s back injury was not related to service, noting that the Veteran had a history of a pre-existing injury to the back prior to service, there were no documented complaints of back issues in the Veteran’s service treatment records, and there was a history of back injuries after service. The clinician provided no explanation for how these factors supported his opinion. Moreover, as noted above, as the presumption of soundness has attached in this case, the question is one of direct service connection and any evidence suggesting a pre-existing back disability must be disregarded in providing an etiology opinion. For these reasons, remand is warranted to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). This matter is REMANDED for the following action: Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, regarding his claim for service connection for a back disability.  If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. The clinician should first be instructed that, because no back conditions were clinically noted on the Veteran’s military entrance examination, the Veteran is presumed sound at entrance into service as to his back conditions, and the clinician must disregard any evidence suggesting the Veteran had any preexisting back conditions prior to military service. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s back disability began in or is otherwise related to his service. In doing so, the examiner must address (1) the Veteran’s October 1960 separation and reenlistment physical which noted the Veteran had a history of injury to his lumbar spine, (2) the Veteran’s September 1969 treatment note that indicated the Veteran had a fracture of a vertebra in service, (3) the August 1978 view of the Veteran’s cervical spine that noted the findings were highly suggestive of previous trauma, and (4) the Veteran’s statements of record, particularly his statements that he has had neck and back pain since service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so.  The Veteran’s report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.